In our view, the Tribunal does have the implied power, in appropriate circumstances to reinstate proceeding that it has struck out. Generally, as was pointed out by Kaye, J in R v McGowan; Ex parte Macko & Sanderson, an order striking out an action does not terminate it. The latter occurs where judgement is entered in the proceeding or where it is discontinued. An order striking out an action, said his Honour, only has the effect of removing it from the list. It is plain enough, we think, that it would be a serious impediment to the Tribunal's administration of the Act if it could not reinstate a proceeding that was struck out in order to make an otherwise appropriate order in relation to it.

1. I was referred to Burnell v VOCAT [2016] VCAT 1690 by both parties. At paragraph 58 of his reasons, the then Senior Member Proctor said:

The Tribunal has the discretion to consider whether it is appropriate that the proceeding be reinstated. Relevant factors include:

(a) the length of the delay in applying for reinstatement;

(b) whether there is an acceptable explanation for the delay;

(c) whether the delay has prejudicial effect on the respondent; and

1. The Applicant based its submissions on the Tribunal decisions in Burnell and Faturos v Jackson Development Group Pty Ltd Ltd [2007] VCAT 2461 [15].
2. The Respondent submitted that Senior Member Proctor's list of matters to consider whether to reinstate in Burnell is not exhaustive and does not preclude consideration of other factors such as whether an order for costs would overcome any prejudice sought by the party resisting reinstatement, the objectives of Tribunal and the interests of justice more generally. The Applicant agreed the list is not exhaustive.

1. At paragraph 15 of the Respondent's Submissions there appears:

After the parties failed to respond to the 7 April 2020 orders, the Tribunal, again on its own motion, ordered that the proceeding be struck out. The order was presumably made pursuant to s 76 of the Act which permits the Tribunal to strike out proceedings for want of prosecution.

1. The member who made the order did not make any mention of the section of the Act under which it was made, and no presumption can be made that the proceeding was struck out for want of prosecution by either or both parties, particularly where there are claims by both parties.
2. The Respondent submitted that the non-compliance upon which the strike out was based was the Applicant's failure to file and serve Further Amended Points of Claim by 14 February 2020, or at all.
3. It seems to me that the primary reason the Tribunal struck out the matter was because neither party had notified it that they wished to proceed. The orders of 7 April 2020 specifically contemplate the timetable being amended if the parties advised they wished to proceed.
4. However, there were also orders allowing the respondent to file Amended Points of Defence and Amended Points of Counterclaim, and then for Points of Defence to any Amended Points of Counterclaim. On 2 December 2019 the parties sought consent orders in general accordance with the orders made that day.
5. I cannot be satisfied that the Applicant's inaction was the only reason for strike out, as a party in the position of the Respondent with a substantial claim, and contemplating amendment of his claim, could have been amended regardless of inaction by the other party. It must be remembered that a counterclaim is a separate claim and is not dependent on the applicant pursuing its claim.
6. Mr Tesarsch made the somewhat surprising submission that order 1 of 2 December 2019 is permissive - "the applicant may file and serve Further Amended Points of Claim". I agree that it is permissive. It gives the Applicant the choice to further amend, or to continue to rely on its Amended Points of Claim. It does not allow the Applicant to choose when it will do so, because that would make a nonsense of order 2: "By 13 March 2020, the respondent must file and serve Points of Defence to any Further Amended Points of Claim." Nevertheless, the orders of 7 April 2020 contemplated that there would be further amendment to the timetable.

1. Both parties agree that there was no delay in seeking reinstatement, and in this proceeding I consider it is the relevant potential delay. It is noted that the respondent seeks to rely on other delays.
2. At paragraph 9 of the Respondent's Submissions there appears, concerning Burnell:

Plainly, Senior Member Proctor considered not only the delay in applying for reinstatement, but also the applicant's conduct of the case prior to the reinstatement.

1. I am not satisfied that the Burnell strike out parallels what happened in this proceeding. The strike out was ordered specifically because of Ms Burnell's conduct, she failed to satisfy a condition for reinstatement (filing witness statements), the respondent was entirely innocent of any delay, it had applied for dismissal under s 75 or 78 of the VCAT Act, SM Proctor concluded that it was unlikely that Ms Burnell would participate in a hearing and as he said at paragraph 73:

Concerning the merit of the case, in my view the application has virtually no prospect of success.

1. I do not consider that a de facto application[4] to dismiss for, say, want of prosecution, is necessarily more successful by being piggy-backed onto resistance to reinstatement. Further, I note that the Respondent did not apply for dismissal until the hearing before me, although it was mentioned in the Respondent's Submissions.
2. At paragraph 16 of the Respondent's Submissions there is a questionable logical leap. First, it is assumed that the member who struck out the proceeding must have done so on the basis of want of prosecution. It then follows that all the matters taken into account for want of prosecution necessarily apply to this application for reinstatement. While I am not persuaded by this argument, in case I am wrong, I address the Respondent's Submissions regarding the other periods of delay, which are alleged to be delay before the commencement of the proceeding and delay between commencement and the proceeding being struck out.

... the Applicant's claim relates to an agreement made between the parties on 13 September 2010. The Applicant commenced the proceeding on 5 January 2017, shortly prior to the commencement of the limitation period.

1. This allegation is based on paragraph 4 of the affidavit of Kier Piet Svendsen affirmed 20 October 2020. At paragraph 4 Mr Svendsen stated that the contract between the parties was a domestic building contract. He said:

At a directions hearing on 9 March 2017, the Applicant's solicitor, Mr Warren, accepted that the proceeding was commenced at that time to fall within the relevant limitation period.

1. Exhibited to his affidavit was an exchange between the presiding member and Mr Warren, where the member notes the poor quality of the application, and Mr Warren agreed with the member that one reason was the limitation period.
2. It is perhaps surprising that Mr Warren considered that there was a potential limitation issue when the Court of Appeal of the Supreme Court of Victoria decided in 2014[6] that the limitation period for a building case under s 134 of the Building Act 1993 is a fixed 10 years from the date of the occupancy permit or final certificate. It is also surprising that Mr Barr did not answer my questions about the relevance of s134 to this proceeding. I am not satisfied that the proceeding was commenced near the expiration of the relevant limitation period and I am not persuaded by this aspect of the Respondent's submissions.
3. I am also satisfied, in accordance with the Applicant's November Submissions, that the Applicant was entitled to commence proceedings when it did.

Alleged delay between commencement and strike out

1. At paragraph 19 of the Respondent's Submissions there is a table of alleged delays by the Applicant totalling about 19 months, although some of those months were concurrent, as pointed out in the Applicant's November Submissions. All the listed delays were before the hearing conducted by Senior Member Walker on 14 May 2018, with the exception of the delay in filing and serving the Further Amended Points of Claim.
2. I will not reconsider matters considered by Senior Member Walker, except to the extent that a pattern of failing to comply could become obvious after an earlier application.
3. It is surprising that the Respondent has again alleged that the Reply and Defence to Counterclaim was due on 15 November 2017. The Respondent did not file his Counterclaim (with the Amended Points of Defence to Amended Points of Claim) until 20 February 2018 - a defence could not have been filed before the Counterclaim was articulated. This was mentioned by Senior Member Walker at paragraph 18 of his Reasons.
4. In considering the overall time taken in this proceeding, I do not take into account the period during which the Respondent filed, and was ultimately unsuccessful in, an appeal of Senior Member Walker's decision to the Supreme Court. This period was 8 June 2018 to 14 December 2018, although as previously noted, the compulsory conference was conducted during this period.
5. As to the delay in filing the Further Amended Points of Claim, the Respondent attributes more than 8 months' delay to this failure. The delay between the date when the Applicant was to file and serve the Further Amended Points of Claim - 14 February 2020 - to the strike out - 5 June 2020 - is substantial and not well explained by the Applicant. I note the apparent frustration experienced by the Respondent and his team recorded by Mr Svendsen in his affidavit of 20 October 2020[7] concerning a number of failures to file and serve the Further Amended Points of Claim. I reserve the right of the Respondent to raise these occurrences again if there is a further issue about a possible systemic failure of the Applicant to follow orders. It is for this reason that I will order that reinstatement does not occur until the Applicant either files and serves Further Amended Points of Claim, or files and serves notice that it will not be amending its claim any further, at any time unless because of a matter that is not foreseeable on 15 February 2021.
6. However, I am not satisfied that it was reasonable to expect the Applicant to incur costs for this document when the Tribunal did not make an order for it as a condition of an application for reinstatement and reinstatement was vigorously opposed.
7. Even if I considered that delay before the parties received the strike-out order was relevant, I would not be satisfied that the four months was sufficient to have the proceeding decided on a basis other than its substantial merits. I wholeheartedly agree with Senior Member Walker that the "procedural tail must not wag the substantive dog."[8]
8. This is particularly so in the context of the early, chaotic days of the pandemic lock-down, which occurred first in mid to late March 2020 and were the subject of some of the correspondence from the Applicant's solicitors[9].

Whether there is an acceptable explanation for the delay

1. As there was no delay in applying for reinstatement, it follows that there is nothing to explain. However, Mr Warren provided an affidavit to explain why the applicant had failed to comply with the orders concerning the administrative mention. Mr Warren's affidavit was to the effect that he was on leave at the time when the orders of 9 April 2020 were received in his office and they were not specifically drawn to his attention. He said that there were diary entries concerning the administrative mention, but he overlooked one and the second, which was for 25 May 2020 was when his mother was ill in hospital.
2. I note the Respondent's submissions that a party is not necessarily absolved of responsibility for the failures of its lawyers, but do not need to consider that further. I also remark that if a party wishes to be legally represented, it is incumbent on it to pay its lawyers. A failure to pay lawyers is rarely a sufficient reason for delay, although in the days of the pandemic, it might be.

Whether the delay has prejudicial effect on the respondent

1. The Applicant submits that if there was a delay between the date of the order and the application for reinstatement, it was not caused by the Applicant. I am satisfied that this is accurate; it was caused by the delay between signing the order and when it was sent to both parties by the Tribunal. The Respondent may have hoped that the strike-out order would be made, but until it was received, the Respondent could not be sure. There was therefore no delay during which the Respondent could suffer prejudice.
2. As mentioned above, the Respondent attempts to piggy-back arguments concerning dismissal for want of prosecution onto resistance to reinstatement. In the absence of a properly made and served application for want of prosecution, I will not consider it further, although as also mentioned above, I reserve the right of the Respondent to raise again the matters contained in the Respondent's Submissions if, most regrettably, it is necessary to do so in the future.
3. As to relevant prejudice to the Respondent, I am not satisfied that he has suffered substantial prejudice between the date of the strike-out and now. As the Applicant submitted[10], the Respondent remains represented by the same solicitors that he has retained throughout the proceeding. It is most unlikely that he has lost the opportunity to adequately defend the claim. If he has, some of it is of his own making, although I do not criticise him for steps such as taking his concerns about the Applicant to the Building Practitioners Board[11], making the application heard by Senior Member Walker and appealing that decision.
4. A proper consideration of matters raised about potential prejudice in the Respondent's Submissions calls for detailed examination of evidence, and the time for that is at the hearing.
5. Another matter raised by Mr Barr at the reinstatement hearing concerned the possible impecuniosity of the Applicant, and the possibility that reinstatement might be a futile step. Evidence was given in Mr Svendsen's affidavit of 20 October 2020 that Mr Carmen Mimmo, the sole director of the Applicant, has been sued for a substantial amount in the Supreme Court. From a practical point of view, this is likely to affect the liquidity of the Applicant, however I am not satisfied that this a sufficient reason to refuse reinstatement in this case.

The Applicant's chance of success - the merits

1. I will not consider matters that were before Senior Member Walker, and have not been asked to do so. The Respondent submits[12]

[Since SM Walker's decision] the Applicant has ... accepted that the claim in respect of which the Tribunal made those findings can no longer be prosecuted due to the High Court's decision in Mann v Paterson Constructions Pty Ltd.... Therefore, the only evidence before the Tribunal is what appears from the Amended Points of Claim ...which the Applicant concedes are required to be further amended and must therefore be inadequate to demonstrate the merits of its claim. [Underlining added]

1. Neither party spoke in detail of the likely impact of Mann v Paterson upon this proceeding. It is to be expected that there will be amendments to the claim concerning quantum meruit, and also possibly concerning some aspects of the claim for variations. The Respondent did not provide proof of the underlined part of the above quotation. Further, at the hearing I asked Mr Barr whether he was saying that the current pleading is bound to fail. He said he was not saying that.
2. Mr Tesarsch said that he considers the hearing could proceed based on the current Amended Points of Claim up to and including paragraph 18, and that paragraphs 19 to 25 are affected by Mann v Paterson.
3. I am not satisfied, on the evidence and submissions before me, that the lack of the Further Amended Points of Claim, and the state of the current Amended Points of Claim is sufficient to satisfy the principles set out in Norman v Australian Red Cross Society (1998) VAR 243; particularly:

... for a dismissal or strike out to succeed, the proceeding must be obviously hopeless, must be obviously unsustainable in fact or in law, can on no reasonable view justify relief, or must be bound to fail.

1. This is not an issue where a party is clearly at fault to the degree where I must decide whether costs will be sufficient to ameliorate the damage caused by its failures. My comments about costs are below.

The objectives of the Tribunal and justice generally

1. At paragraph 13 of the Respondent's Submissions there appears:

In exercising its discretion [whether to reinstate or not], the tribunal also ought to consider the effect that reinstatement of the proceeding would have upon "the public as a whole, not merely the parties to the proceedings..."

1. I agree that parties should not be granted numerous indulgences. On the other hand, devoting substantial resources of the parties and the Tribunal to matters such as the Respondent's objection to reinstatement, is not desirable either.
2. The Respondent's Submissions referred[13] to Caruso v Jafer[14] and Bishopsgate Insurance Australia Ltd (in liq) v Deloitte Haksins & Sells[15] with respect to "what justice requires" in "all relevant circumstances".
3. I consider Caruso has limited application to the matter before me, because it concerns dismissal, not striking out, of a proceeding before the Supreme Court where Mandie J said at page 1:

The rules empower a judge to reinstate such a proceeding and it is noteworthy, I think, that no power is given to a master to do so. It was not regarded by the judges as a matter of routine procedure.

1. Bishopsgate does not concern an application to reinstate, but dismissal for want of prosecution where the plaintiff sought leave to file and serve the seventh version of the statement of claim.
2. Sections 97 and 98(1)(d) of the VCAT Act set out the manner, particularly relevant to this proceeding, in which hearings should be conducted. Section 97 provides:

The Tribunal must act fairly and according to the substantial merits of the case in all proceedings.

1. Section 98 concerns general procedure in hearings and subsection 98(d) provides:

(d) must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit.

1. While repeated failures to comply with directions should not be tolerated, an underlying objective of the Tribunal is that when proceedings are heard they are dealt with on the merits rather than on a technicality.
2. It would be a substantial imposition on Tribunal efficiency if, as suggested in the Respondent's Submissions, every time an order is made for a strike out with a right to apply for reinstatement on an apparently inactive file, the member must first consider whether the conduct of one or more party amounts to want of prosecution.

1. In Burnell Senior Member Proctor refused to reinstate the proceeding and dismissed it under sections 75 and 78 of the VCAT Act. At paragraph 84 he said:

While Ms Burnell's application for reinstatement is refused, if the proceeding remains struck out there remains the prospect that Ms Burnell will make a further application to have it reinstated. For that reason, [the respondent] applied for the proceeding to be struck out under either s75 or s 78 of the VCAT Act.

I dismissed the proceeding under s75 because Ms Burnell's application is lacking in substance and s 78 because the proceeding has been conducted such that it now unnecessarily disadvantages [the respondent].

1. I do not consider this proceeding is analogous to Burnell.

1. This is the second substantial application before the Tribunal in this proceeding. It is a matter of concern and should not become a pattern for future behaviour. On the other hand, parties must comply with orders unless there is a compelling reason for failing to do so.
2. I have set this matter down for an 18 day hearing as discussed with the parties during the hearing of the reinstatement application. I have also set it down for a compulsory conference. The proceeding went to a compulsory conference before Senior Member Levine on 26 November 2018. Although the further compulsory conference might not be successful, I consider it is worth an attempt by the parties to reach an outcome with which they can both live, rather than going through the financial and mental cost of an 18 day hearing.
3. At the hearing Mr Barr asked that if the claim were to be reinstated, that I would reinstate the counterclaim as well. As I have mentioned above, although they are in a single file, the claim and counterclaim are separate applications. It is the Respondent's choice to reinstate the counterclaim only if the claim is reinstated. Although the Respondent's application to reinstate is therefore late, I consider it is reasonable in the circumstances. Both are conditional upon the Applicant's compliance with Order 1.

1. The volume and complexity of the material produced for both parties indicates that the costs incurred by both must have been substantial.
2. I will order that costs are reserved with liberty to apply, but neither party should expect an order for costs will necessarily be made. Section 109 of the VCAT Act starts with the assumption that parties will bear their own costs. The application for reinstatement would not have been necessary if the Applicant had responded to the administrative mention, but the application for reinstatement has been successful, subject to the conditions in the orders.

[1] See paragraph 16 and following below.

[2] ACN 115 918 959 Pty Ltd v Moulieris (Building and Property) [2018] VCAT 740

[3] Paragraph 10 of the Respondent's Submissions, noting the reasons of SM Steele in Fatouros v Jackson Development Group Pty Ltd (Civil Claims) [2007] VCAT 2461.

[4] Paragraph 32 of the Respondent's Submissions: "... the Tribunal ought to consider whether the proceeding would be dismissed for want of prosecution had such an application been made by the Respondent..."

[5] Paragraph 18, Respondent's Submissions.

[6] Brirek Industries Pty Ltd v McKenzie Group Consulting (Vic) Pty Ltd [2014] VSCA 165

[9] Paragraphs 19, 20 and 24 of Mr Svendsen's affidavit of 20 October 2020

[11] Mentioned at paragraph 10 of Senior Member Walker's reasons

[12] Respondent's Submissions, paragraph 54

[13] Respondent's Submissions, paragraph 12

[14] Supreme Court of Victoria, unreported, 15 June 1998

[15] [1999] 3 VR 863.