1. the requirement imposed upon the Tribunal by s97;

1. the requirement imposed by s98(1)(a); and
2. the power to make costs.

59. In other words, before making an order under ss(2) I must consider whether the belief I have formed as to the applicant's conduct warrants the making of the order, whether an alternative remedy would suffice, ordinarily case management should not be employed so as to shut a party out of litigating, the attainment of justice is paramount, and ordinarily a party should be given an opportunity to be heard upon the merits.

60. In my view, the nature of the applicant's conduct, as described above, is sufficiently disadvantageous as to warrant an order being made under ss(2). Further, there is no alternative remedy available that will not cause extreme prejudice to the respondent. First, the applicant has not applied for any alternative remedy. It simply made a request from the bar table that the timetable could be extended and the hearing date kept.

61. Second, even if that request were granted, there is no guarantee that the applicant would comply with the order. Given the history of the applicant's failure to comply with orders throughout the proceeding, I have no confidence that it would do so. A self-executing order could be made, however I agree with the respondent's submission that the Tribunal has already made self-executing orders following the applicant's previous non-compliance, permitting the proceeding to be reinstated if the applicant filed and served its Further Amended Points of Claim. The applicant complied with that order so that the proceeding could be reinstated, but has not complied with any order since, other than attending the compulsory conference. I do not consider it would be fair to the respondent to make a further self-executing order in those circumstances.

62. Third, even if the applicant were given an extension of time, and even if it complied with such an order, the hearing could not proceed on 15 November 2021, for the reasons set out above. The adjournment of the hearing is a significant factor to take into consideration under sections 97 and 98, and having regard to Aon.

63. As Senior Member Lothian in the Reinstatement Reasons: "repeated failures to comply with directions should not be tolerated".[24]

64. As I am satisfied of the matters under s78(1), I consider it appropriate to make an order under ss(2)(a) dismissing the claim and under ss(2)(b)(i) determining the counterclaim in favour of the respondent with the quantum to be assessed.

65. I propose to make orders vacating the hearing date of 15 November 2021 and listing the proceeding for a hearing to assess the quantum of the counterclaim. I invite the parties to provide proposed orders, including for the filing of evidence they wish to rely on, noting that the applicant is not prevented from defending the quantum claimed.

66. As the applicant did not address me on costs during the hearing, I will give the applicant the opportunity to file a written submission before making a costs order. If no submission is received, the following order will be made:

Pursuant to ss 109 and 78(2)(c) of the Victorian Civil and Administrative Tribunal Act 1998, the applicant must pay the respondent's costs of and incidental to the applicant's claim, including any reserved costs, to be assessed on the County Court scale in default of agreement.

[1] ACN 115 918 959 Pty Ltd v Moulieris [2020] VCAT 1417 (the Reinstatement Reasons) at [53].

[3] Martin v Fasham Johnson Pty Ltd [2008] VSC 289 at [34].

[4] [2002] VCAT 302 at [8].

[5] [1999] 3 VR 863.

[6] Bishopsgate at 871-873, referring to Chris Smaller (Transport) Ltd [1989] AC 1197 at 1203.

[8] [2020] VSC 306 at [36] - [48].

[12] Affidavit of Kier Piet Svendsen 14 September 2021 at Exhibit KPS-2, p 154.

[13] Affidavit of Kier Piet Svendsen 14 September 2021 at Exhibit KPS-2, p 155.

[14] Affidavit of Kier Piet Svendsen 14 September 2021 at Exhibit KPS-2, p 159.

[15] Affidavit of Kier Piet Svendsen 14 September 2021 at Exhibit KPS-2, p 161.

[17] Affidavit of Kier Piet Svendsen 20 October 2020 at [10], [12], [14], [16] - [24]; Affidavit of Kier Piet Svendsen 14 September 2021 at Exhibit KPS-2, p 155-159

[19] Supplementary affidavit of Kier Piet Svendsen 27 September 2021.

[20] Impresa Construction v Oxford Building & Ors [2021] VCC 1146

[21] Affidavit of Kier Piet Svendsen 20 October 2020 at [10], [12], [14], [16] - [24]; Affidavit of Kier Piet Svendsen 14 September 2021 at Exhibit KPS-2, p 155-159

[22] Davies v Diversii Pty Ltd [2010] VCAT 1126 at [41].

[23] Bell Corp Victoria Pty Ltd v Stephenson [2003] VSC 255 (Bell Corp) at [51].