1. By his application, the respondent sought orders under ss 76 and 78 of the VCAT Act that the applicant's claim be dismissed. The application did not refer to the respondent's counterclaim.
2. Sections 76 and 78 are relevantly in the following terms:

76 Summary dismissal for want of prosecution

(1) At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding for want of prosecution.

...

(3) An order under subsection (1) may be made on the application of a party or on the Tribunal's own initiative.

78 Conduct of proceeding causing disadvantage

(1) This section applies if the Tribunal believes that a party to a proceeding is conducting the proceeding in a way that unnecessarily disadvantages another party to the proceeding by conduct such as -

(a) failing to comply with an order or direction of the Tribunal without reasonable excuse; or

(b) failing to comply with this Act, the regulations, the rules or an enabling enactment; or

(c) asking for an adjournment as a result of (a) or (b); or

(d) causing an adjournment; or

(e) attempting to deceive another party or the Tribunal; or

(f) vexatiously conducting the proceeding; or

(g) failing to attend mediation or the hearing of the proceeding.

(2) If this section applies, the Tribunal may -

(a) order that the proceeding be dismissed or struck out, if the party causing the disadvantage is the applicant; or

(b) if the party causing the disadvantage is not the applicant -

(i) determine the proceeding in favour of the applicant and make any appropriate orders; or

(ii) order that the party causing the disadvantage be struck out of the proceeding;

(c) make an order for costs under section 109.

1. The principles governing the application of these provisions are not in doubt. The Tribunal deciding an application under s 76 should apply the same principles as a court when deciding whether to bring a proceeding to an end for want of prosecution.[7] As identified by Tadgell and Ormiston JJ in Bishopsgate Insurance Australia Ltd (in liq) v Deloitte Haskins & Sells,[8] the power is discretionary and the correct approach is that summarised by Lord Griffiths in Department of Transport v Chris Smaller (Transport) Ltd:[9]

The power should be exercised only where the court is satisfied either (1) that the default has been intentional and contumelious, eg disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or (2)(a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants, either as between themselves and the plaintiffs, or between each other, or between them and a third party.[10]

1. As the Tribunal pointed out, case management considerations and questions of the proper use of court or tribunal resources may also come into play.[11] The Court exercises a general discretion upon consideration of the relevant circumstances of the case, unfettered by the above formulations, and orders dismissal only if satisfied that the justice of the case demands it.[12]
2. The leading case concerning s 78 is Bell Corp Victoria Pty Ltd v Stephenson.[13] Ashley J identified the following principles:

In my opinion, ... the subject matter, scope and purpose of the [VCAT] Act show that if the Tribunal forms a belief concerning the matters required by s 78(1)(a) of the Act the following matters must be considered in the exercise of the discretion under sub-s (2):

• The subject matter of the belief formed by the Tribunal for the purposes of sub-s (1).

• The nature of the power conferred by sub-s (2) in the context of the armoury of power conferred upon the Tribunal by ss 75-77. By this I mean, particularly, that s 78(2) operates in circumstances which at least do not require that the proceeding be frivolous, vexatious, misconceived, lacking in substance or otherwise an abuse of process; and which at least do not require that the circumstances demonstrate want of prosecution. Put another way, the sub-section contemplates the making of an order with very serious consequences in circumstances that very probably would not fit the templates set up by ss 75 and 76. Whilst it can rightly be said that the creation of such a remedy in the situation contemplated by s 78(1) shows ... an intention that orders be made in some cases where the situation exists, it should also be firmly concluded, in statutory context, that the remedy should be of last resort and not first resort.

• ...[14]

• The requirement imposed by s 98(1)(a), to the extent that a party should ordinarily be given an opportunity to be heard upon the merits. That opportunity is not absolute. It may be lost without breach of the rules of natural justice. But the consequence that the making of an order under s 78(2) will deprive a party of an opportunity to be heard upon the merits is surely relevant to exercise of the discretion whether to so order.

• The power to make costs orders conferred by ss 109(2)(3) and 78(2)(c). The last-mentioned, it appears, might be exercised even though no order is made under s 78(2)(a) or (b).

It may be that in a particular case the Tribunal will consider some other matter to be relevant.[15]

1. There was an issue before the Tribunal and again before the judge as to whether s 78 permitted judgment to be given in respect of a counterclaim. That question was resolved in favour of the respondent, and it has not been pursued in this Court. We therefore proceed on that basis.

1. The primary judge summarised the decision of the Tribunal.[16] The following summary draws heavily on that part of the judge's reasons.
2. The Tribunal noted that the applicant had not provided any explanation for its failure to comply with the orders made by Senior Member Lothian on 16 December 2020. Nor had the applicant made a formal application for an extension of time to file its witness statements and a further expert report.[17]
3. The Tribunal outlined the delays which had taken place in the prosecution of the claim since commencement of the proceeding. Having done so, it stated:

I consider that delays after the commencement of the proceeding are a relevant factor to take into account. In summary, the respondent says (and this is confirmed by the Tribunal records) that the proceeding has been on foot for 51 months and all the applicant has filed are pleadings and a report of a quantity surveyor in 2018.

At paragraph 12 of his written submissions, the respondent set out a table listing the applicant's defaults since 2017. These are as follows:

1. Further and better particulars of Amended Points of Claim, due 10 October 2017, filed four months late;
2. Reply and Defence to Counterclaim, due 15 November 2017, filed five months late;
3. Further Amended Points of Claim, due 14 February 2020, filed 12 months late;
4. any further expert reports, due 28 June 2021, not filed;
5. witness statements, due 13 September 2021, not filed.[18]

1. The Tribunal regarded the delays since December 2020, and the effect they would have on the hearing of the proceeding, as of 'paramount relevance' in the exercise of its discretion. The Tribunal noted that Senior Member Lothian had set a timetable allowing the parties 11 months to get ready for the hearing, with which the applicant had failed to comply. Instead, in oral submissions, counsel for the applicant had proposed an expedited timetable which would, it was suggested, preserve the hearing date.[19] By that timetable, the applicant would file and serve its evidence by 4 October 2021, seven days after the hearing of the application.
2. The Tribunal then considered the respondent's s 76 application, beginning by considering whether the failures by the applicant to comply with directions given by Senior Member Lothian were 'intentional and contumelious'. It noted that the respondent's solicitors had alerted the applicant's solicitors on 29 June 2021 to the failure of the applicant to file and serve a further expert report, and that, in response, the applicant's solicitors had stated that 'receipt of that report is currently delayed'. The applicant had not proffered any explanation for the delay to that date, or for the further delay since then.[20]
3. The Tribunal noted that the first time the applicant's solicitors had advised the respondent that the applicant would not be in a position to exchange witness statements was on 13 September 2021, by way of a letter to that effect, again without explanation or elaboration. In response, the respondent's solicitors responded the next day, enquiring when the preparation of the statements commenced and when the applicant intended to file them. The applicant's solicitors did not respond to that email.[21]
4. The Tribunal concluded:

In circumstances where the applicant has not filed any evidence to explain the delay, it is open to me to conclude that the default was intentional. Further, having regard to the applicant's conduct in wilfully disregarding the timetable, failing to provide any meaningful response to the respondent's solicitors and failing to make any application for an extension of time, I am satisfied that the applicant's behaviour is contumelious.[22]

1. Next, the Tribunal considered whether there had been 'inordinate and inexcusable delay' by the applicant in taking a step in the proceeding. It observed that the applicant had not made an application for an extension of time, and had not filed any evidence to explain the delay. In those circumstances, the only available conclusion was that the delay was incapable of being excused.[23]
2. The Tribunal then considered whether the delay was 'inordinate'. In answering that question in the affirmative, the Tribunal rehearsed the main aspects of the delay, and addressed the applicant's proposed timetable:

The word inordinate is defined as 'immoderate; excessive'. It must be remembered that there is no evidence before me, nor any assurance that the applicant will actually meet its proposed date of 4 October 2021. However let me assume that the applicant can meet that date. The delay for the further expert report would then be 14 weeks and the delay for the witness statements would be 3 weeks. Looking at those dates in isolation, the delays would not be described as excessive. However the delays must be considered in the context of the timetable set on 16 December 2020.

At the reinstatement hearing Senior Member Lothian gave the applicant time to file Further Amended Points of Claim by 15 February 2021. She allowed the respondent two months to file and serve Amended Points of Defence, Amended Points of Counterclaim and any further expert reports (26 April). The applicant was then ... given two months to file and serve Amended Points of Reply and Defence to Amended Counterclaim and any further expert reports (28 June). She ordered the parties to attend a compulsory conference on 12 July. The parties were then allowed two months to prepare witness statements (13 September) and three weeks for witness statements in reply (4 October). Had those dates been met, the parties would have had 3 weeks to prepare the Tribunal Book and 6 weeks to prepare for the trial from the close of evidence.

As a result of the applicant's delays (again taking the applicant's submission at its highest that it can comply by 4 October 2021), the respondent would now have less than 3 weeks to prepare for the trial from the close of evidence (noting the public holiday on 2 November). That time would have to include the preparation of the Tribunal Book, consideration of the reply witness statements, conferring with and updating witnesses, preparation of cross examination, consideration and issuing of summonses to other witnesses, consulting with the respondent's expert, including potentially needing to file a responsive report, preparing opening submissions and arranging transcript.

In other words, the respondent would be allowed less than 3 weeks to prepare for an 18 day hearing in a proceeding which has been on foot for 51 months, involves a claim for over $3.5 million, which is based on a quantity surveyor report which has not yet been updated, and involves evidence of oral representations made 11 years ago by witnesses who may not be identified until 3 weeks before the hearing commences.

In that context, I consider that the delay is immoderate and excessive; that is, it is inordinate. Moreover, as previously stated, there is no application before me and no evidence that the applicant will actually be able to prepare and file witness statements by 4 October, or reply witness statements by 25 October, or that their expert will provide a supplementary report by 4 October. Given the responses from the applicant's solicitors to date ... I consider that highly unlikely. The applicant has not actually provided any information to the respondent's solicitors or to the Tribunal about what steps it has taken to engage the expert, whether it has already interviewed witnesses or commenced drafting the witness statements. Further, I accept the evidence ... that the applicant's solicitors appear to have had difficulties in obtaining instructions for a number of years.

The uncertainty as to when or whether the applicant could comply with any new date I were to set today strengthens my view that the delay is inordinate.[24]

1. Based on those matters, the Tribunal considered that the delay gave rise to a substantial risk that it was not possible to have a fair trial of the issues in the action.[25]
2. The Tribunal then considered whether the delay was likely to cause, or had caused, serious prejudice to the respondent. It noted that the time at which to consider such prejudice was the time at which the trial was likely to be heard. The respondent had given evidence that the toll of the litigation on him had been severe. The property in issue was his family home, and the claim against him was for $3.5 million. Representatives of the applicant had contacted him in an effort to exert pressure on him, and, as a consequence, an intervention order had been taken out on his behalf against the applicant's director.[26]
3. The Tribunal found that, even if the applicant were to be allowed more time to file a further expert report, witness statements and reply witness statements, the respondent would not be in a position to conduct the hearing on 15 November 2021. Due to the delays in the lists in the Tribunal, if the hearing could not proceed on that date, the next available date for a hearing would not be before March 2023. As a result, the hearing would be conducted nearly 13 years after the occurrence of the dispute and more than six years after the proceeding was commenced.[27]
4. Based on those matters, the Tribunal was satisfied that the delay would cause serious prejudice to the respondent.[28]
5. The Tribunal then considered whether, if the action was dismissed, there would be consequent hardship to the applicant. It reasoned as follows:

What is the hardship to the applicant if the action is dismissed?

On a superficial inquiry, it appears obvious that there will be significant hardship to the applicant if the proceeding is dismissed. It would lose the opportunity of claiming $3.5 million and no further action could be brought, because the cause of ... action is now statute barred.

However I am not prepared to draw that conclusion, in circumstances where the applicant has not provided any evidence of any hardship. ... [A]fter 51 months of litigation the applicant has only filed pleadings and a 2018 quantity surveyor's report. I accept the evidence ... of the difficulties the applicant's solicitors appeared to have experienced in obtaining instructions. Having regard to the lack of prosecution of the claim, it could equally be surmised that the applicant does not wish to pursue the claim and/or is not convinced of its merits.[29]

1. Finally, under the heading 'case management considerations', the Tribunal referred to the High Court's decision in Aon and concluded that the conduct of the applicant had prevented the timely and cost-effective resolution of the dispute.[30]
2. The Tribunal concluded that it was satisfied that it was appropriate to make an order under s 76 dismissing the applicant's claim.[31]
3. The Tribunal then turned to the alternative application for dismissal of the proceeding under s 78. It stated that the discretion under s 78 should only be exercised if there was no alternative remedy to achieve a just outcome.[32]
4. The Tribunal considered that the applicant's conduct since 2020 had unnecessarily disadvantaged the respondent within the meaning of s 78(1) of the VCAT Act.[33] The Tribunal further concluded that the nature of the applicant's conduct had been sufficiently disadvantageous to warrant an order under s 78(2).[34]
5. First, the Tribunal noted that there was no alternative remedy available that would not cause 'extreme prejudice' to the respondent, and that the applicant had not formally applied for any alternative remedy. Secondly, even if such an application were made and the expedited timetable were to be ordered, with a self-executing order for dismissal if the applicant failed to meet that timetable, there would be no guarantee that the applicant would comply with the order. In those circumstances the Tribunal did not consider it would be fair to the respondent to make a further self-executing order.[35] Thirdly, even if the applicant were given an extension of time, the hearing could not proceed on 15 November 2021. For those reasons the Tribunal was satisfied it was appropriate to make an order under s 78(2)(a) dismissing the applicant's claim, and an order under s 78(2)(b)(i) determining the counterclaim in favour of the respondent with quantum to be assessed.[36]

1. As mentioned, there were 12 grounds of appeal in the application before the primary judge, only three of which are still pursued. They are in these terms:
   1. The Tribunal erred in deciding that the proceeding should be dismissed for want of prosecution pursuant to s 76 of the [VCAT] Act by failing to take into account a relevant consideration, namely that the Applicant would suffer hardship by losing the right to pursue a claim for $3.5 million and would be liable on the counterclaim, and took the erroneous position (at [52]) that it could not draw the conclusion that the applicant would suffer that hardship because the applicant had not provided any evidence of hardship.
   2. The Tribunal erred in deciding that the proceeding should be dismissed for want of prosecution pursuant to s 76 of the [VCAT] Act because it did so having regard to the irrelevant consideration (at [52]) that it could be surmised that the applicant did not wish to pursue the claim and/or is not convinced of its merits.
   3. The Tribunal erred in determining to dismiss the claim and determine the counterclaim in favour of the Respondent pursuant to s 78 of the [VCAT] Act in that the Tribunal made that decision without regard to the following relevant considerations:

(a) The Tribunal failed to consider the nature of the power and its very serious consequences and in particular the Tribunal failed to consider that the Applicant would suffer hardship by losing the right to pursue a claim for $3.5 million and would be liable on the counterclaim, and took the erroneous position (at [52]) that it could not draw the conclusion that the Applicant would suffer that hardship because the applicant had not provided any evidence of hardship.

(b) The Tribunal failed to consider the relevant consideration that dismissing the claim and determining the counterclaim in favour of the Respondent was a remedy of last resort, in circumstances where other options were available to the Tribunal including a self-executing order or an adjournment of the proceeding.

(c) The Tribunal failed to consider that the order that it ultimately made would deprive the Applicant of an opportunity to have its claim and defence to the counterclaim heard on their merits.

1. The judge treated grounds 1 and 8 together.
2. The applicant argued that the Tribunal had failed to take hardship to the applicant into account, because it surmised that the applicant did not wish to pursue the claim or was not convinced of its merit. It was submitted that such hardship was self-evident, and that the fact that the applicant had not provided evidence in respect of it was irrelevant. It was also submitted that the 'surmise' of the Tribunal was irrelevant.[37]
3. The judge found it unnecessary to enter into the question whether, in an application to dismiss a proceeding for want of prosecution, the Tribunal was bound to consider the hardship which the applicant in that proceeding would suffer if the proceeding were to be dismissed. He noted, however, that a successful application leads to an order dismissing the claim without adjudicating on its merits. The authorities therefore required a party seeking summary dismissal to show an intentional and contumelious default, or irreparable and serious prejudice to the other party.[38] This matter was the subject of a notice of contention in this Court, by which the respondent contends that the judge ought to have found that the Tribunal was not bound to consider the potential hardship to an applicant in dismissing that applicant's claim under ss 76 or 78 of the VCAT Act.
4. Assuming that the Tribunal was bound to take account of whether there would be significant hardship to the applicant, constituted by the loss of the opportunity to claim around $3.5 million based on an action which was since statute-barred, the judge found that the Tribunal had done so. It addressed the question and concluded on the facts available to it that no such conclusion could be drawn. In the view of the judge, that was sufficient to dispose of ground 1.[39]
5. As to ground 8, the judge said that it was self-evident that, if potential hardship arising from dismissal was a relevant consideration, then factors which might indicate that the applicant was either not interested in pursuing its claim, or was not convinced of its merit, were equally relevant. Ground 8 therefore failed also.[40]
6. Ground 10 concerned the exercise of the power under s 78. It is important because it is only s 78 that empowered the Tribunal to determine the counterclaim. The ground asserted that the Tribunal had failed to have regard to three relevant considerations.
7. First, it was said that the Tribunal had failed to take account of the fact that, if the order was made, the applicant would lose its right to claim a significant sum of money in circumstances where its cause of action was now statute-barred. Secondly, the applicant submitted that the Tribunal failed to take account of the fact that dismissal of the proceeding, and determination of the counterclaim, were remedies of last resort, in circumstances where other options included the making of a self-executing order, or an order adjourning the hearing date. Thirdly, it was contended that the Tribunal failed to consider the fact that the applicant would lose the opportunity to have its claim, and its defence to the counterclaim, heard on their merits.[41]
8. The judge found that it was not necessary for the Tribunal to revisit its findings regarding hardship to the applicant, made in the context of s 76, when it came to consider s 78. The judge held that the first and third arguments really took issue with the conclusions of the Tribunal regarding hardship, reached in its treatment of s 76, in which it had taken account of the matters identified. As to the second matter, the Tribunal expressly acknowledged that the power under s 78 was one that should only be exercised as a last resort. In the context of s 76, the Tribunal had considered whether there was an alternative remedy available that would not cause serious prejudice to the applicant. It concluded that no alternative remedy was available. It followed that it adopted the remedy of last resort. Ground 10 therefore failed also.[42]

1. The proposed ground of appeal is that the judge 'erred in failing to grant leave and allow the appeal on proposed grounds of appeal numbered 1, 8 and 10 as stated in the applicant's notice of appeal'.
2. The applicant submitted, treating all grounds together, that the Tribunal had not taken account of the inevitable hardship flowing from dismissal of a proceeding in respect of which the limitation period had since expired.[43] It was said that the Tribunal had expressly declined to have regard to such hardship. The applicant submitted that the hardship of dismissal was an inherent and obvious form of prejudice which did not depend on any proof on the part of the applicant. By requiring the production of evidence of hardship, the Tribunal had disregarded the hardship entirely. Conversely, it had taken account of a surmise based on a lack of evidence which was irrelevant because that circumstance could not deny the hardship suffered by the applicant.
3. The applicant accepted that there might be cases where the prospects of success were so low that the hardship of dismissal could be effectively disregarded, but this was not such a case. The quantity surveyor's report filed by the applicant valued the work and labour of the applicant in excess of $6.767 million. The respondent's own quantity surveyor valued the work at about $4 million. The applicant submitted that, given that the contract price was only about $2.3 million, it had a compelling prima facie case that it performed work outside of the scope of the contract. In any event, the Tribunal did not conclude that the case was hopeless or weak. It merely surmised that the applicant could be of that opinion. That subjective view, even if established, could not be a sufficient basis for leaving hardship out of account. It would need to be shown, rather, that the claim was not plausible or viable. It was submitted that, if the Tribunal's approach were correct, evidence of prejudice to an applicant would need to be led in every case of want of prosecution, even though the fact of such prejudice was recognised as a mandatory consideration.
4. The applicant submitted that the judge did not grapple with its complaint. It was not enough that the Tribunal addressed the issue of hardship, because it failed to have regard to the fact that dismissal of the proceeding, and determination of the counterclaim, were prejudicial to the applicant. The judge ought to have upheld grounds 1, 8 and 10 on that basis.
5. The applicant also submitted that the Tribunal failed to explore remedies and case management approaches falling short of dismissal. Its conclusion that the hearing date would be lost in any event was said to rest on speculation about the scope and content of the documents which the applicant was proposing to file within the next seven days. These matters went to grounds 1 and 10.
6. The applicant submitted that the prejudice was especially clear in the case of the counterclaim. The determination of the counterclaim imposed liabilities on the applicant. No evidence was required to establish such prejudice. The Tribunal's reasoning was inapplicable to the counterclaim. Moreover, prejudice to the applicant was not even mentioned by the Tribunal in the context of s 78.
7. If the argument in respect of the counterclaim were to be accepted, the applicant contended that this would affect the position regarding the primary claim. The factual issues overlapped to a considerable extent, such that it would be unfair to conduct a hearing in respect of the counterclaim without allowing the applicant's proceeding to be determined at the same time.
8. Finally, the applicant contended that, if error was established, the matter should be remitted to the Tribunal. It would not be appropriate for this Court to make orders itself under the power in s 148(7) of the VCAT Act, because the discretion would need to be exercised afresh on updated material and by reference to current timetabling considerations in the Tribunal.[44]
9. The respondent emphasised the unchallenged findings of the Tribunal that the delay had been intentional, contumelious and inexcusable, and had unnecessarily disadvantaged the respondent. It had been in the power of the applicant to explain the delay, and to show both its own prejudice if its claim were to be dismissed and what material it proposed to file within seven days that might bear on prejudice to the respondent, but it had not done so. Inferences adverse to the applicant should be drawn accordingly.[45] The reasoning of the judge should be upheld, it was submitted, but even if the issue of hardship to the applicant was not taken into account by the Tribunal, such an error was not material in all the circumstances. Alternatively, the appeal should be dismissed because the same result should have been ordered under s 148(7) of the VCAT Act in any event.
10. The respondent noted that the proceeding had been commenced, by the admission of the applicant's solicitor, in order to avoid the expiry of the limitation period. Despite 12 days' notice of the present application, the applicant had filed no evidence or submissions in the Tribunal. The litigation had been on foot for 51 months, and all the applicant had done was to file the quantity surveyor's report in 2018 and its pleadings. After the proceeding had been struck out in the face of neither party seeking a contrary order, an eleven-month timetable for trial was established upon its reinstatement, and still the applicant had not complied with the Tribunal's orders. In the circumstances, it was well open to the Tribunal to decline to find that the applicant would suffer significant hardship if the proceeding were to be dismissed.
11. The respondent also pointed to the toll the proceeding had taken on him. The litigation was about the construction of his family home under a contract signed in 2010. The claim was for some $3.5 million against him personally. Police had obtained an intervention order against the applicant's director to protect the respondent.

1. In our view it is plain that the Tribunal took into account the question of hardship to the applicant if its proceeding were to be dismissed. Its reasons contain a heading to that effect,[46] having set out a passage from a previous decision indicating that this was a matter the Tribunal should take into account in an application under s 76.[47]
2. Under that heading the Tribunal observed that the applicant stood to lose the opportunity of claiming $3.5 million, and that the cause of action is now statute-barred. The Tribunal indicated that, on a 'superficial inquiry', this would constitute significant hardship to the applicant.[48] It expressly declined to draw that conclusion, however, noting that the applicant had, after 51 months of litigation, only filed pleadings and (in 2018) a quantity surveyor's report. The applicant's solicitors had experienced difficulties in obtaining instructions, for a number of years. In these circumstances, the Tribunal was left to 'surmise' as to whether the applicant would suffer significant hardship, or whether it did not wish to pursue the claim or was not convinced of its merits.[49]
3. This amounted to taking account of the prospect of hardship to the applicant. In submissions made to this Court, the applicant contended that the Tribunal had applied an erroneous principle by requiring the applicant to give evidence as to hardship, effectively failing to take account of the hardship inherent in every case where an action is dismissed for want of prosecution. But this argument reads the Tribunal's reasons too literally.
4. The Tribunal was not saying that hardship cannot be established without evidence, as a matter of principle. To have done so would have risked falling into error by failing to take account of the hardship inherent in dismissing an action for want of prosecution. Instead, the Tribunal said it was 'not prepared to draw [the] conclusion' of 'significant hardship' on the available evidence.[50] On the Tribunal's reasoning, the extraordinary and intentional delay, coupled with the lack of interest shown by the applicant in its own proceeding, raised a question whether there would in fact be any significant hardship or prejudice in dismissing the applicant's claim. The Tribunal was not required to divine without evidence that the applicant would, as a matter of fact, suffer significant hardship if the proceeding were to be dismissed.
5. In this way, the Tribunal took account of the hardship to the applicant but found that it could not be satisfied as to its significance. It did not make the error attributed to it in ground 1.
6. Ground 8 is substantially the other side of the same issue. The applicant contends that the Tribunal took account of an irrelevant consideration by 'surmising' that the applicant did not wish to pursue its claim or was not convinced of its merits. But the Tribunal did not take any irrelevant 'surmise' into account. It took the absence of evidence into account as a basis for concluding that it could do no more than surmise as to the question of hardship (or prejudice), and therefore could not draw the inference the applicant urged. The argument that the Tribunal took its own 'surmise' into account seeks to make a virtue out of the applicant's own failure to put forward evidence. The reason that the Tribunal could only surmise about the position was that the applicant, despite being in a position to advance any relevant evidence, had chosen not to do so. In truth, ground 8 takes issue with the conclusion of the Tribunal rather than pointing to any irrelevant consideration or error of law.
7. For these reasons, the applicant has failed to establish that there was an error of law affecting the Tribunal's decision under s 76.
8. It follows that the proposed appeal must fail in so far as it concerns the judge's upholding of the Tribunal's orders under s 76.

1. The order dismissing the proceeding was also made under s 78, which is the subject of ground 10. As noted, it is that provision which permitted the making of an order determining the counterclaim. Although not necessary to our decision, because the primary claim stands dismissed under s 76, we will first address the application of ground 10 to the primary claim.[51]
2. It will be recalled that Ground 10 had three sub-grounds. Grounds 10(a) and (c) contended that the Tribunal had failed to have regard to the hardship occasioned to it by the dismissal of its claim and the determination of the counterclaim, and the fact that such orders would deprive it of the opportunity to have its claim and defence to the counterclaim heard on the merits. These grounds must fail in so far as they concern the primary claim, for the reasons already given in respect of s 76. The Tribunal acknowledged that it was required to consider, among other things, the fact that a party should ordinarily have the opportunity to be heard upon the merits.[52] It had previously dealt with the argument that the hardship to the applicant if it made the order sought would be significant.[53] These grounds effectively reprise ground 1.
3. Ground 10(b) was that the Tribunal had failed to take into account the principle that dismissing the claim and determining the counterclaim should be a remedy of last resort. This ground must also fail in respect of the primary claim. The Tribunal expressly stated that the discretion under s 78 should only be exercised to dismiss a proceeding if there was no alternative remedy to achieve a just outcome, and that this was a last resort.[54] It found that there was no alternative remedy that would not cause extreme prejudice to the respondent. Again, it considered and rejected the possibility of a self-executing order as proposed by the applicant.[55]
4. In the context of the counterclaim, the applicant is on somewhat stronger ground. The Tribunal did not expressly mention the question of hardship in relation to the counterclaim. Its reasoning concerning the hardship involved in dismissing the action was not applicable to the counterclaim - the applicant, as the responding party, had no choice but to address the counterclaim; it was not a question of the applicant pursuing the counterclaim, or delaying doing so. Moreover, the determination of the counterclaim was plainly prejudicial to the applicant as it would determine its liability to pay damages to the respondent, in an amount to be assessed. There was no room for 'surmise' as to that prejudice. The Tribunal did not explicitly address these matters. Furthermore, in its discussion of s 78 it did not articulate any reason particular to the counterclaim for determining the counterclaim. Rather, its reasoning was more general.
5. This is less surprising when it is borne in mind that the respondent's application before the Tribunal did not seek any order in respect of the counterclaim. The matter was raised by the Tribunal itself towards the end of the hearing, during the respondent's reply submissions, and embraced at that point by senior counsel for the respondent, albeit indicating that, if the subsistence of the counterclaim operated as an impediment to obtaining relief in respect of the primary claim, the respondent would be prepared to forego the counterclaim. However, the applicant was given an opportunity to make submissions in response to the reply. It thus had the opportunity to address the question whether to determine the counterclaim in the respondent's favour. It then addressed that question as follows:

We say it's pretty astonishing that what's been said about, 'Well, it if would help the matter along, we'll drop the counter-claim.' That speaks of someone who doesn't want to go to trial. Now, there might be all sorts of reasons for that, but we regard that as a fairly astonishing submission to make and also it's made, 'Well, we won't offer it unless, as part of your reasoning, you think it's relevant.' That's not the proper way that should be done. They either do it properly or not at all.

1. The question of the counterclaim also received scant attention when the matter was in the Trial Division. While ground 10 referred to the counterclaim (as did ground 1, albeit only concerned with s 76), specific argument was not focused on the point. The applicant's written submissions did refer to the order regarding the counterclaim as having been 'remarkable' but it was not a specific area of complaint. No doubt for that reason, again, the matter was not separately canvassed in the reasons of the judge in the Trial Division.
2. The respondent did not go so far as to submit that the applicant was now precluded from raising the point specific to the counterclaim by not having raised it before the primary judge. The issue was, as we have said, within the scope of ground 10 of the appeal. The respondent sought to show that the judge had addressed this aspect of the ground, in particular by referring to the way in which the ground extended to the counterclaim.
3. The dispositive reasoning of the judge on ground 10 does not address the specific position of the counterclaim. It is instead directed at the dismissal of the claim. But he plainly appreciated that ground 10 extended to the determination of the counterclaim, and considered that the Tribunal had taken the relevant matters into account in that context.[56] We agree.
4. In a practical sense, the fates of the primary claim and the counterclaim were inextricably related. They involved overlapping factual issues involving communications between the parties and the performance of works at the property. The two claims were necessarily to be managed and heard together. The applicant's failures to comply with directions, including as to evidence, affected each of them. The prejudice to the respondent in the continued defence of the primary claim, as a result of the dilatory approach of the applicant, was of a similar character and extent as the prejudice to the respondent in its running of the counterclaim, which resulted from the same disadvantageous conduct of the applicant.
5. It can readily be seen that the Tribunal saw the claim and counterclaim as proceeding together or not at all. It was inherent in that approach that the Tribunal had regard to the prejudice that the applicant would suffer by the determination of the counterclaim against it, the fact that determining the counterclaim was a remedy of last resort in respect of the counterclaim, and the fact that such a course would deny the applicant the opportunity of having its defence to counterclaim determined on its merits. As we have seen, the Tribunal referred to each of those matters when considering generally the matters relevant to the exercise of the powers under s 78. It then stated it was satisfied of the matters under s 78(1) and that it considered it appropriate to make an order under s 78(2)(b)(i) determining the counterclaim in favour of the respondent with the quantum to be assessed. It is apparent that the Tribunal was relying on what it had earlier said as the basis for making that order. In the circumstances, we do not consider that the absence of any distinct treatment of the counterclaim points to any error in the Tribunal's approach to the counterclaim.
6. For that reason, we consider that the judge was correct not to uphold ground 10, and that the Tribunal did not err in determining the counterclaim. We would grant leave in respect of that aspect of the proposed appeal, but dismiss the appeal.

1. Alternatively, as already mentioned, the respondent contended that, even if the error asserted by the applicant was made out, the circumstances of the case were such that the error was immaterial. Alternatively, the Court should dismiss the appeal, even if the Tribunal was in error, because the judge should in that event have exercised the power in s 148(7) of the VCAT Act by making the same decision.[57]
2. We accept the latter submission. This was an overwhelming case for an order dismissing the action under s 76. The applicant's default was intentional and contumelious. It was inordinate and inexcusable. It was unexplained. There was a substantial risk that it would not be possible to have a fair trial of the issues in the action, as a result of the delay. None of those conclusions were contested.
3. The Tribunal also found that, if the matter were to proceed there would be serious prejudice to the respondent that could not be compensated by an order for costs.[58] The applicant contested this conclusion only by submitting that the Tribunal ought to have made a self-executing order dismissing the proceeding if the applicant failed to file its evidence within seven days. The Tribunal noted that the applicant had previously complied with self-executing orders that were made following instances of non-compliance, thereby keeping the proceeding alive, but had then returned to its pattern of non-compliance. In those circumstances, the Tribunal considered that it would not be fair to make a further self-executing order.[59]
4. If it were necessary to do so, we would infer, for the purpose of deciding the orders to be made under s 148(7), that the hardship caused to the applicant if the action were to be dismissed under s 76 would not be significant. As noted, the applicant had done nothing other than file pleadings and a single expert report in more than four years of litigation. Furthermore, the proceeding had been instituted more than six years after the entry into the contract. The respondent drew attention to an acknowledgment by the applicant's legal representative that the proceeding was commenced in light of the imminent expiry of the applicable limitation period. There is a strong sense in which the applicant has sought to do the bare minimum needed to keep its claim alive. Even when the issue before the Tribunal was whether the claim ought to be dismissed, the applicant gave no indication of the material that it proposed to file within seven days, or the progress it had made in preparing such material. It submitted no evidence at all on the s 76 hearing, and filed no written submissions. The failure of the applicant to give evidence of matters within its knowledge about the past and future prosecution of the claim makes the conclusion that it has no real interest in pursuing it, instead of merely preserving it, irresistible.
5. We reject the applicant's argument that, upon the establishment of error on the part of the Tribunal, exercise of the power to make substantive orders under s 148(7) would be inappropriate because the matter should be remitted to the Tribunal to be considered on the basis of fresh and current material, given in particular that the Court is not in a position to know when a trial could be held by the Tribunal. Remittal would amplify the prejudice to the respondent without any countervailing benefit. Moreover, for the reasons that we have given, the order made by the Tribunal was correct. Nothing that has happened since then suggests that it would be appropriate to make any different decision by reference to fresh or updated material. As before the Tribunal, the applicant gave this Court no indication of what further material it would seek to advance, or what it might establish if the matter were to be remitted to the Tribunal.
6. In our view, the case for determining the counterclaim, like the case for dismissal of the proceeding itself, was also overwhelming. Not to have done so would have left the respondent needing to pursue the counterclaim in a hearing delayed, through no fault of its own, as a result of the intentional and inexcusable conduct of the whole case by the applicant. The trial of the counterclaim would necessarily have involved much of the factual terrain presented by the primary claim, which on the Tribunal's findings could not have been heard until March 2023. The substantial prejudice to the respondent was therefore not confined to the primary claim.
7. To the contrary, the overlapping nature of the two cases makes it plain that the prejudice to which the respondent was exposed extended to his own pursuit of the counterclaim. Moreover, just as the Tribunal concluded that there was no alternative course that would not cause extreme prejudice to the respondent in respect of the primary claim, the same conclusion applies in respect of the counterclaim. The order determining the counterclaim was the remedy of last resort.[60]
8. For these reasons as well, the proposed appeal must fail.

1. In the circumstances, it is unnecessary to address the notice of contention.
2. Leave to appeal should be granted, but the appeal must be dismissed.

[1] The following factual account adopts, in large part, the summary usefully agreed by the parties in this Court.

[2] As implemented in Victoria by the Australian Consumer Law and Fair Trading Act 2012.

[3] ACN 115 918 959 Pty Ltd v Moulieris [2020] VCAT 1417 [59].

[4] ACN 115 918 959 Pty Ltd v Moulieris [2021] VCAT 1136 [34] (Senior Member Kirton) ('Tribunal Reasons').

[7] Gabriel v Council of Box Hill Institute of TAFE [2002] VCAT 302 [8] (Deputy President McKenzie) ('Gabriel'), cited by Tribunal Reasons, [27].

[8] [1999] 3 VR 863, 872 [25].

[9] [1989] AC 1197, 1203.

[10] Ibid. See also Masel v Transport Industries Insurance Co Ltd [1995] VicRp 59; [1995] 2 VR 328, 331-2, 336 (Brooking, Teague and Hedigan JJ) ('Masel').

[11] Cappelleri v Cappelleri [2020] VSC 306 [46] (Derham AsJ) ('Cappelleri'), referring to Aon Risk Services Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175, 211 [93] (Gummow, Hayne, Crennan, Kiefel and Bell JJ) ('Aon').

[12] Cappelleri [2020] VSC 306 [48] (Derham AsJ). See also Masel [1995] VicRp 59; [1995] 2 VR 328, 331-2, 336 (Brooking, Teague and Hedigan JJ).

[13] [2003] VSC 255 ('Bell Corp').

[14] Ashley J also referred to case management considerations, in a way that is no longer apt in light of the High Court's decision in Aon: see Primrose Meadows Pty Ltd v River View Pty Ltd [2017] VSC 487 [46] (Croft J) ('Primrose Meadows'); Benson v La Trobe University [2011] VCAT 2064 [29] (Member Proctor).

[15] Bell Corp [2003] VSC 255 [51]; see also Gevah Constructions Pty Ltd v GRN Australia Pty Ltd [2006] VSC 266; (2006) 25 VAR 90 [28] (Hargrave J); [2006] VSC 266; Primrose Meadows [2017] VSC 487 [43] (Croft J).

[16] ACN 115 918 959 Pty Ltd v Moulieris [2022] VSC 555 [6]-[19] (Kaye JA) ('Trial Division Reasons').

[24] Ibid [40]-[45] (citation omitted).

[35] The Tribunal had previously made self-executing orders following the applicant's earlier non-compliance: ibid [61].

[37] Trial Division Reasons, [43]-[44].

[43] Cappelleri [2020] VSC 306, [45] (Derham AsJ).

[44] Section 148(7) empowers the Court to make orders 'on an appeal' including (a) 'affirming, varying or setting aside the order of the Tribunal' and (b) 'that the Tribunal could have made in the proceeding'.

[45] Blatch v Archer [1774] EngR 2; (1774) 1 Cowp 63; 98 ER 969, 970 (Lord Mansfield).

[47] Ibid [27], citing Gabriel [2002] VCAT 302 [8] (Deputy President McKenzie).

[51] It was faintly submitted by the applicant that, if the discretion under s 78 miscarried, this alone vitiated the whole of the orders notwithstanding that they rested partly on s 76. It is not apparent why that would be so, especially in circumstances where the Tribunal treated the provisions separately.

[56] Trial Division Reasons, [94]-[103].

[57] It was not suggested that this submission was foreclosed by the respondent's not having advanced it by way of notice of contention. In circumstances where the applicant did not object or assert any prejudice, and made full submissions on the point, it is appropriate for us to permit the argument.

[60] The fact that senior counsel for the respondent indicated to the Tribunal that, if the pursuit of the counterclaim stood as an obstacle to ordering dismissal of the primary claim, the respondent would not press the counterclaim, does not indicate that the determination of the counterclaim was not a remedy of 'last resort'. As far as the counterclaim is concerned, it would be no remedy at all under s 78 if the respondent were required to abandon it as the price of obtaining the dismissal of the primary claim.