Applicant v Respondent

1 On 13 September 2010, the applicant and the respondent entered into an agreement by which the applicant undertook to perform construction works on premises owned by the respondent in Cromwell Street, South Yarra. On 5 January 2017, the applicant commenced proceedings against the respondent in the Victorian Civil and Administrative Tribunal ('the Tribunal') claiming the sum of approximately $3.5 million. In response, the respondent filed a defence and counterclaim seeking damages against the applicant in an amount of a little over $1 million.

2 On 7 April 2020, the Tribunal made an order listing the proceeding for an administrative mention on 25 May 2020, by which time, if the parties had not advised the principal registrar that they wished to proceed with the proceeding, it would be struck out with a right to apply for reinstatement. On 5 June 2020, there having been no response to the administrative mention listed for 25 May, the Tribunal made orders striking out the proceeding with a right to apply for reinstatement.

3 Subsequently, the applicant applied to the Tribunal for reinstatement of the proceeding. On 16 December 2020, in a reserved ruling, Senior Member Lothian upheld the application and ordered that, subject to the parties filing amended pleadings, the claim and counterclaim would stand reinstated.[1] The Senior Member made a number of orders in relation to the filing of further documents by both parties, and listed the proceeding for trial on 15 November 2021 on an estimated hearing duration of 18 days.

4 Subsequently, the applicant failed to comply with orders made by Senior Member Lothian that it serve a foreshadowed further expert report on 28 June 2021, and that it serve its witness statements on 13 September 2021. As a consequence, on 14 September, the respondent made an application to the Tribunal for orders dismissing or alternatively striking out the applicant's claim pursuant to ss 76 and 78 of the Victorian Civil and Administrative Tribunal Act 1998 ('the Act). On 30 September 2021, Senior Member Kirton delivered reasons upholding the application. The Senior Member made orders dismissing the applicant's claim under ss 76 and 78 of the Act, and determining the counterclaim against the applicant in favour of the respondent, with the quantum of the counterclaim to be assessed.[2] The applicant in these proceedings seeks leave, pursuant to s 148 of the Act, to appeal that decision.

The Reasons of Senior Member Kirton dated 30 September 2021

5 In order to address the proposed grounds of appeal, it is necessary to summarise the reasons for decision of the Senior Member in some detail.

6 Senior Member Kirton commenced her reasons by noting that the applicant had not made a formal application for an extension of time to file its witness statements and a further expert report. Nor had the applicant provided any explanation for its failure to comply with the orders made by Senior Member Lothian on 16 December 2020.[3]

7 Senior Member Kirton then outlined the delays which had taken place in the prosecution of the claim by the applicant since commencement of the proceeding in the Tribunal. Having done so, she 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;

d. any further expert reports, due 28 June 2021, not filed;

e. witness statements, due 13 September 2021, not filed.[4]

8 The Senior Member noted that Senior Member Lothian had concluded that the applicant's delays before December 2020 were not sufficient, at that time, to preclude reinstatement of the proceeding in the Tribunal.[5] Senior Member Kirton then continued:

However I agree with the respondent that the delays since December 2020, and the effect they will have on the hearing of the proceeding, are of paramount relevance in the exercise of my discretion. Senior Member Lothian set a timetable allowing the parties 11 months to get ready for the hearing. The applicant conceded that it had failed to comply with the timetable.

As stated above, in oral submissions the applicant's Counsel proposed that the timetable could be amended with the witness statements and further expert report being filed by 4 October, reply witness statements being exchanged by 25 October 2021, the Tribunal Book prepared and filed by 3 November 2021, and the parties' written openings by 10 November 2021.[6]

9 The Senior Member then turned to the question whether the failures by the applicant, to comply with directions given by Senior Member Lothian, were 'intentional and contumelious'. She noted that the respondent's solicitors had alerted the applicant's solicitors to the failure of the applicant to file and serve a further expert report on 28 June 2021, 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.

10 The Senior Member also noted that the first occasion, upon which the applicant's solicitors had advised the respondent that the applicant would not be in a position to exchange witness statements on 13 September, was by way of a letter on that date, stating that they would not be in a position to exchange witness statements, and that they would write to the respondent's solicitors further about that matter 'when I have received the necessary instructions'. In response, the respondent's solicitors sent an email to the applicant's solicitors on the following day requesting clarification of the applicant's solicitors' letter, and enquiring when the preparation and the statements commenced and when the applicant intended to file the statements. The applicant's solicitors did not respond to that email.

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.[7]

12 The Senior Member next turned to the question whether there had been 'inordinate and inexcusable delay' by the applicant in taking a step in the proceeding. The Senior Member noted, in that respect, that the applicant had not made an application for extension of time, and had not filed any evidence to explain the delay. In those circumstances, the Senior Member concluded that the only conclusion that was available was that the delay was incapable of being excused, so that it was inexcusable.[8]

13 The Senior Member then turned to the question whether the delay was 'inordinate'. In respect of that issue, the Senior Member concluded:

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 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 set out in the affidavits of Mr Svendsen 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.[9]

14 Based on those matters, the Senior Member considered that the delay would give rise to a substantial risk that it was not possible to have a fair trial of the issues in the action.[10]

15 The Senior Member then turned to the question whether that delay was likely to cause, or had caused, serious prejudice to the respondent. The Senior Member noted that the critical time, at which to consider such prejudice, is the time at which the trial was likely to be heard. She noted that 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.

16 The Senior Member noted that 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 almost thirteen years after the occurrence of the dispute and more than six years after the proceeding had been commenced.[11]

17 The Senior Member then considered whether, if the action was dismissed, there would be consequent hardship to the applicant. She noted that, on a 'superficial inquiry', there would be a significant hardship, because the applicant would lose the opportunity to claim $3.5 million, and the cause of action on which it based the claim was statute barred.[12] However, the Senior Member was not prepared to conclude that there would be any hardship to the applicant. She noted that the applicant had not provided any evidence of hardship. The proceeding had been on foot for 51 months, during which the applicant had only filed pleadings and a 2018 quantity surveyor's report. Based on the evidence contained in the respondent's affidavits, she noted that the applicant's solicitors appeared to have experienced difficulty in obtaining instructions from the applicant. She concluded:

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.[13]

18 The Senior Member concluded that the conduct of the applicant had prevented the timely and cost effective resolution of the dispute. Accordingly the Senior Member was satisfied it was appropriate to make an order under s 76 of the Act dismissing the applicant's claim.

19 The Senior Member then turned to the alternative application for dismissal of the proceeding under s 78 of the Act. She noted that the discretion under s 78 was one which should only be exercised if there was no alternative remedy to achieve a just outcome.[14] In that respect, the Senior Member concluded that the nature of the applicant's conduct had been sufficiently disadvantageous as to warrant an order be made under s 78(2). First, the Senior Member noted that there was no alternative remedy available that would not cause 'extreme prejudice' to the respondent, and that the applicant had not applied for any alternative remedy. Secondly, even if such an application were made and granted, there would be no guarantee that the applicant would comply with the order. In those circumstances the Senior Member did not consider it would be fair to the respondent to make a further self-executing order. Thirdly, even if the applicant were given an extension of time, the hearing could not proceed on 15 November 2021.[15] For those reasons the Senior Member was satisfied it was appropriate to make an order under s 78(2)(a) dismissing the applicant's claim, and under s 78(2)(b)(i) determining the counterclaim in favour of the respondent with quantum to be assessed.[16]

20 The applicant relies on twelve proposed grounds of appeal. The first eight contend that the Tribunal erred in deciding that the proceeding should be dismissed for want of prosecution pursuant to s 76 of the Act. Grounds 9 to 12 contend that the Tribunal erred in determining to dismiss the claim, and in determining the counterclaim in favour of the respondent, pursuant to s 78 of the Act.

Section 76

1. The Tribunal erred ... 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 ... by failing to take account of the relevant fact, as found by the Tribunal (at [40]), that the delay in isolation could not be described as excessive.
3. The Tribunal erred ... by taking into account an irrelevant consideration in determining that the delay was inordinate, namely the context of the timetable set on 16 December 2020 (at [40]).
4. The Tribunal erred ... in that it acted unreasonably in deciding (at [40]) that the delay was not inordinate in isolation but became so in the context of the timetable set by the Tribunal.
5. The Tribunal erred ... for want of prosecution pursuant to s 76 of the 1998 Act by deciding (at [47] - [50]) that the Applicant's delay would cause serious prejudice to the Respondent without having regard to the following relevant considerations:

(a) The Tribunal's own finding (at [40]) that the Applicant's delay for filing its expert report was 14 weeks and the delay for filing its witness statements was three weeks.

(b) The fact the if the trial of the proceeding were adjourned and could not proceed in the Tribunal in November 2021, because of the well-known delays in the Tribunal the next available trial date will be not before March 2023, which is a matter which was not the fault of, and beyond the control of, the Applicant and accordingly not a matter that should be regarded in considering the prejudice to the Respondent.

1. The Tribunal erred ... by deciding (at [47] - [50]) that the Applicant's delay would cause serious prejudice to the Respondent taking into account an irrelevant consideration namely that because of the well-known delays in the Tribunal the next available trial date would be not before March 2023, which is a matter which was not the fault of and beyond the control of the Applicant.
2. The Tribunal erred ... because it did so by having regard to the irrelevant consideration (at [50]) that if the trial were adjourned to March 2023, that would make the trial nearly 13 years after the occurrence of the dispute and more than 6 years after the proceeding was commenced.
3. The Tribunal erred ... 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.

Section 78

1. The Tribunal erred ... in that the Tribunal found that there was no alternative remedy that would not cause extreme prejudice to the Respondent, but made that finding taking into account the following irrelevant considerations:

(a) That the Applicant had not applied for any alternative remedy (at [60]) in circumstances where the Respondent had applied to have the Applicant's claim dismissed and it was of no significance that the Applicant had not 8 applied for an alternative remedy, where it had asked, from the Bar table, for an extension to the timetable and for the hearing date to be kept (at [6]).

(b) That there was no guarantee that the Applicant would comply with the alternative timetable it proposed (at [61]) which was irrelevant speculation by the Tribunal in circumstances where such a matter would never be "guaranteed" and where, had a self-executing order been made, such a failure to comply could result in later orders by the Tribunal.

(c) That it would not be "fair" to the Respondent to make a further self-executing order (at [61]) where that consideration was not relevant.

1. The Tribunal erred ... 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 Tribunal proceeded on a wrong principle in that it purported to determine the counterclaim in favour of the Respondent when it had no power under s 78(2)(b)(i) of the 1998 Act to do so.
2. The Tribunal acted unreasonably in that it purported to determine the counterclaim in favour of the Respondent when it had no power under s 78(2)(b)(i) of the 1998 Act to do so.

22 Before I turn to consider the proposed grounds of appeal, it is convenient, first, to identify the relevant legal principles that apply to them.

23 The appeal is brought under s 148(1) of the Act, which provides that a party to a proceeding may appeal to the court, with the leave of the court, on a 'question of law' from an order of the Tribunal. Section 148(2A) provides that the court may grant an application for leave to appeal only if it is satisfied that the appeal has a real prospect of success.

24 In Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue of the State of Victoria,[17] the plurality of the High Court described the nature of the jurisdiction conferred by s 148 in the following terms:

Section 148 of the VCAT Act is concerned with the invocation of judicial power to examine for legal error what has been done in an administrative tribunal. Although s 148 uses the word "appeal", it is clear that the Supreme Court is asked to exercise original, not appellate, jurisdiction and to do so in proceedings which are in the nature of judicial review.[18]

25 The grounds of appeal seek to specify four kinds of error which, it is contended, were made by the Senior Member. It is contended that the Senior Member: failed to take into account a relevant consideration (grounds 1, 2, 5 and 10); took into account considerations which were irrelevant (grounds 3, 6, 7, 8 and 9); acted unreasonably (grounds 4 and 12); and made an order (in respect of the counterclaim) without having the power to do so (grounds 11, 12).

26 The principles relating to the first two bases relied on by the applicant - the failure to take into account a relevant consideration, and the taking into account of an irrelevant consideration - were considered in some detail by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd.[19] His Honour, having considered a number of the decided cases, outlined the principles in the following terms:

(a) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision: ...

(b) What factors a decision-maker is bound to consider in making a decision is determined by construction of the statute conferring a discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard: ... By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is found to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.

(c) Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision: ...

(d) The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned: Wednesbury Corporation.[20]

27 The foregoing passage, from the judgment of Mason J, contains two points which are of particular relevance to the present proceeding. First, in considering whether the decision-maker has failed to take into account a relevant consideration, the principal inquiry is whether the decision-maker was, by law, bound to take that matter into account.

28 In similar terms, in Peko-Wallsend, Brennan J stated:

The court has no jurisdiction to visit the exercise of the statutory power within validity for failure to have regard to a particular matter unless some statute expressly or by implication requires the repository of the power to have regard to that matter or to matters of that kind as a condition of exercising the power.[21]

29 The second relevant principle, contained in the foregoing passage from the judgment of Mason J in Peko-Wallsend, is that in the absence of any explicit restriction contained within the statutory provision, a ground, based on the decision-maker taking into account an irrelevant consideration, may only succeed if there may be found in the 'subject matter, scope and purpose' of the statute in question some implied limitation on the factors which the decision-maker might legitimately have regard to.[22]

30 As noted, grounds 4 and 12 are to the effect that the Tribunal acted unreasonably in reaching a particular conclusion. In the context of a judicial review of an administrative decision, the court may only intervene where it is demonstrated that there is no evident and intelligible justification for the decision in question.[23] By its nature, the test for unreasonableness, in that sense, is stringent.[24]

31 The application, that was before the Senior Member of the Tribunal, was made under ss 76 and 78 of the Act.

32 Section 76(1) provides that 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'.

33 The principles, relating to an application to dismiss a proceeding for want of prosecution, are well established. It was common ground before the Tribunal, and on the present application, that those principles are equally applicable to an application made under s 76(1) of the Act.

34 In Bishopsgate Insurance Australia Ltd v Deloitte Haskins & Sells,[25] Tadgell and Ormiston JJ discussed, in detail, the principles that apply to such an application. Their Honours noted that the principles had been stated by Lord Griffiths in Department of Transport v Chris Smaller (Transport) Ltd,[26] in terms which had been applied in a number of decided cases, as follows:

The power should be exercised only where the court is satisfied either (1) that the default has been intentional and contumelious, e.g. 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.[27]

35 It will be noted that Lord Griffith expressed the test to be applied, on such an application, in the disjunctive. His Lordship stated that the power should only be exercised where the court is satisfied either that the default has been intentional and contumelious, or, alternatively, where there has been inordinate and inexcusable delay which would give rise to substantial risk of prejudice. In the present case, counsel for the respondent noted that the Senior Member had expressly concluded that the default by the applicant, in not serving the further expert report and not in serving its witness statements, had been intentional and contumelious[28]. In those circumstances, it was submitted, it was not necessary for the Senior Member to address and determine the issues as to whether the delay by the applicant had been inordinate and inexcusable, and as to whether it was such as to give rise to a serious risk of prejudice to the respondent.

36 As discussed in the course of submissions, the vast majority of the decided cases, in respect of the summary dismissal of a proceeding, concern the second kind of case described by Lord Griffiths, namely, cases in which there has been inordinate and inexcusable delay by a plaintiff, which has given rise to a serious risk of prejudice to the defendant. Counsel did not refer to, nor could I locate, any case which describes the principles which apply where the court has concluded that the default has been intentional and contumelious.

37 The power of the Tribunal, to summarily dismiss a proceeding, under s 76 of the Act, is discretionary. In the absence of authority, and in view of the discretionary nature of the power, for the purposes of determining the current appeal, it is appropriate to act on the basis that, having determined that there had been intentional and contumelious default by the applicant, it was relevant for the Tribunal to take into account, as the Senior Member did, the nature and extent of the delay, and the issue of whether any prejudice had been, or might have been, sustained by the respondent as a consequence.

38 In Bishopsgate Insurance, Tadgell and Ormison JJ, having cited the above passage from the judgement of Lord Griffiths in Chris Smaller (Transport), then proceeded to discuss the principles that apply to an application for summary judgment, in terms which may be summarised as follows:

(1) The critical issues (other than those which apply in a case of contumelious disobedience of court orders), which must be considered, are the delay, any explanation for the delay, and the likely prejudice to be caused to the defendant as a result of that delay.[29]

(2) In considering each of those issues, ordinarily the effect of the delay, on the orderly management of the court's business, is not a relevant consideration.[30]

(3) The delay, which must be considered, is the period of time that has passed since the issue of the proceedings in question. However, where the plaintiff has been tardy in issuing the proceedings, the plaintiff is obliged to prosecute the claim with greater expedition than if the proceeding had been issued earlier and at a time more proximate to the events in question.[31]

(4) The delay, in the prosecution of the case, is not confined only to periods in which the plaintiff has been totally inactive. It can also include, and take into account, the failure of the plaintiff to take steps in the action in a manner which would have enabled the interlocutory procedures to be concluded within a reasonable time.[32]

(5) It is not a pre-requisite, to dismissal of an action for want of prosecution, that the defendant by affidavit, allege prejudice sustained as a result of the delay of the plaintiff, in a case in which such prejudice may be inferred from all the circumstances of the case.[33]

(6) In determining whether, and to what extent, the defendant has suffered prejudice, the court focusses primarily on the prejudice caused by the delay by the plaintiff in prosecuting the claim. In that respect, Tadgell and Ormiston JJ stated:

In each case ... one must look at each of the elements of prejudice asserted and examine the time at which it is likely to be suffered, always making due comparison between prejudice which the defendant has suffered or will be likely to suffer because of inordinate and inexcusable delay and any prejudice it might have suffered in any event.[34]

(7) The relevant prejudice includes that which will likely be suffered up to the time at which it might fairly be expected that the case would be tried to conclusion. Thus the court must take into account not only prejudice resulting from delay to the date of the application before it, but also additional prejudice which may fairly be expected to be suffered by the defendant in the period up to the hearing and conclusion of the proceeding.[35]

39 The alternative basis, upon which the respondent applied to the Tribunal for summary dismissal of the claim, and for judgment on the counterclaim, was pursuant to s 78 of the Act. In respect to that basis, the Senior Member concluded, pursuant to s 78 (1), that the applicant had conducted the proceeding in a way that unnecessarily disadvantaged the respondent, in particular by failing to comply with the directions made by Senior Member Lothian on 16 December 2020, without reasonable excuse[36]. That conclusion is not the subject of the proposed grounds of appeal. Grounds 9 to 12 are directed to the Senior Member's conclusion, pursuant to s 78 (2), the applicant's claim should be dismissed and the counterclaim should be determined in favour of the respondent.

40 So far as it is relevant, s 78 provides as follows:

(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;

...

(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.

(3) The Tribunal's powers under this section are exercisable by the presiding member.

41 In Bell Corp Victoria Pty Ltd v Stephenson,[37] Ashley J identified the matters which need to be considered in the exercise of the discretion under s 78(2) as follows:

• 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 that 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.
• The requirement imposed upon the Tribunal by s. 97. That section should be considered to import the concept that, ordinarily, the interests of case management should not be employed so as to shut a party out of litigating its case. The ultimate aim of the Tribunal, as much as of a court, must be the attainment of justice in respect of issues joined.
• 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).[38]

42 Grounds 1 and 8 are directed to the consideration by the Senior Member whether the applicant would suffer hardship if the proceeding were dismissed for want of prosecution.

43 In support of those grounds, counsel for the applicant noted that the Tribunal had recognised that it was obvious that there would be significant hardship to the applicant if the proceeding were dismissed, because, as a consequence, the applicant would lose the opportunity of claiming $3.5 million, and it would not be able to institute a further proceeding because the cause of action, on which it would be cased, was statute barred. Despite that conclusion, the Senior Member refused to take account of that hardship to the applicant, because it surmised that the applicant did not wish to pursue the claim or was not convinced of its merits. Counsel submitted that, in reaching that conclusion, the Tribunal member incorrectly took into account that the applicant had not provided any evidence as to hardship. It was submitted that such hardship was self-evident, constituted by the loss of the right of action which the applicant sought to pursue against the respondent.

44 For those reasons, it was submitted that the Senior Member erred, first, by failing to take into account, as a relevant consideration, the hardship which would be sustained by the applicant by reason of the summary dismissal of its action (ground 1). Secondly, it was submitted, the Senior Member erred by having regard to an irrelevant consideration, namely, her surmise that the applicant did not wish to pursue the claim or was not convinced of its merits (ground 8).

45 In response, counsel for the respondent submitted, first, that s 76 of the Act does not either expressly, or by necessary implication, require the Tribunal to have regard to the potential hardship suffered by an applicant if a proceeding is dismissed. Instead, it was contended, at its highest, the potential hardship to an applicant, by reason of the loss of its cause of action, is one of a number of matters which may be relevant for a Tribunal to consider.

46 In addition, counsel pointed out that, at the hearing before the Tribunal, the applicant did not file any affidavit, or adduce any evidence, as to any particular hardship which it would suffer if its proceeding were dismissed, other than the loss of its cause of action. In any event, it was submitted, the Tribunal did consider the issue as to whether the applicant would suffer hardship should the proceeding be dismissed, and the Tribunal held that it was not prepared to draw the conclusion that the applicant would suffer such hardship. Accordingly, counsel contended, it cannot be maintained that there was a failure by the Tribunal to address the issue of the potential hardship to the applicant.

47 In response to ground 8, counsel for the respondent noted that the statement by the Tribunal, surmising that the applicant did not wish to pursue the claim, was made on the basis of evidence relating to the difficulties that the applicant's solicitor had experienced in obtaining instructions and in progressing the claim in the Tribunal. Counsel submitted that the Tribunal was not precluded, by s 76, from considering the manner in which the applicant had prosecuted its claim, from drawing appropriate inferences from the evidence relating to that issue.

48 In determining ground 1 (and ground 8), it is not necessary to enter into the issue as to whether, in an application to dismiss a proceeding for want of prosecution, the Tribunal was bound to consider and take into account the hardship which might be consequent to the applicant if the proceeding were dismissed. However, it is relevant, in that respect, to bear in mind that the relief, that is afforded on a successful application for dismissal for want of prosecution, necessarily involves the dismissal of an action without an adjudication on its merits. It is for those reasons that the principles, that apply to such an application, require the party, seeking such relief, to establish (in a case which does not involve an intentional and contumelious default) a delay which is inordinate and inexcusable, and which has given rise to, or is likely to give rise to, irreparable and serious prejudice to the defendant (or respondent). The requirement, that each of those pre-requisites be established, reflects, and is a result of, the consequences to a plaintiff resulting from the dismissal of the proceeding for want of prosecution.

49 Nevertheless, assuming that the Tribunal was bound to take into account the hardship to the applicant if the proceeding were dismissed, it is clear that the Senior Member did address that consideration. Under the subheading 'What is the hardship to the applicant if the action is dismissed?', the Senior Member noted that, 'on a superficial inquiry', it appeared obvious that if the action were dismissed, there would be significant hardship to the applicant, constituted by its loss of an opportunity to claim $3.5 million based on a cause of action which was then statute barred.[39] However, the Senior Member was not prepared to draw that conclusion, stating her reasons for not doing so in the following terms:

However I am not prepared to draw that conclusion, in circumstances where the applicant has not provided any evidence of any hardship. As summarised by the respondent, after 51 months of litigation the applicant has only filed pleadings and a 2018 quantity surveyor's report. I accept the evidence set out in the affidavits of Mr Svendsen of the difficulties the applicant's solicitors appear 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.[40]

50 Thus, in short, the Senior Member did address, as a relevant issue, the question whether the applicant would suffer hardship as a result of the summary dismissal of its action, and concluded, on the facts available to the Tribunal, that no such conclusion could be drawn. In that way, it cannot be maintained that the Senior Member failed to take into account the potential hardship to the applicant.

51 Ground 8 is directed to the reasons provided by the Senior Member as to why she was not prepared to draw conclusion that the applicant would suffer any hardship by reason of the summary dismissal of its claim. In essence, it was submitted that the suggestion by the Tribunal, that it could be surmised that the applicant did not wish to pursue its claim or was not convinced of its merits, was an irrelevant consideration. In particular, it was contended, the 'surmise' was without foundation, because the applicant had brought the proceeding and was actively opposing its dismissal.

52 On analysis, that argument is, in a sense, self-contradictory. If, as the applicant maintains, it was relevant, and indeed necessary, for the Tribunal to take into account the potential hardship to the applicant if its proceeding was summarily dismissed then, equally, it was relevant for the Tribunal to also take into account any considerations which might negate, or mitigate, the hardship contended for by the applicant.

53 Each of the matters considered by the Senior Member, in the passage which I have quoted, were directly relevant to whether the Senior Member should draw the conclusion that the applicant would suffer hardship in that event. In particular, the fact that the applicant had not provided specific evidence of any hardship, that it had made little progress after more than four years of litigation, and that its solicitors had experienced difficulty in obtaining instructions, were a proper and logical foundation for an inference by the Senior Member that the applicant did not wish to pursue the claim or was not convinced of its merits.

54 Ground 8 is not directed, in terms, to the reasoning process by which the Tribunal drew that inference. Rather, it is directed to the relevance of the inference itself. However, quite self-evidently, if the potential hardship to the applicant, arising from the summary dismissal of this action, was a relevant consideration, as a corollary, equally, it was relevant for the Tribunal to consider any factors which might indicate that, in reality, the applicant was either not interested in pursuing its claim, or was not convinced of the merits of that claim.

56 Grounds 2, 3 and 4 concern the conclusion by the Senior Member that the delays by the applicant, in filing and serving an expert report and witness statements, were excessive and inordinate.

57 In support of each of those grounds, counsel for the applicant focussed on the consideration by the Senior Member that, assuming that the applicant could file and serve the outstanding documents by 4 October 2021, the consequent delays in the provision of those documents, taken 'in isolation', would not be described as excessive, but that, in the context of the timetable set by Senior Member Lothian on 16 December 2020, the delays were inordinate.[41] In essence, it was contended that, in reaching the conclusion that the delays were excessive and inordinate, the Senior Member failed to take into account a relevant consideration, namely, that taken in isolation the delays could not be described as excessive (ground 2). Conversely, it was submitted, the conclusion by the Senior Member, that the potential delay was excessive and inordinate, was based on an irrelevant consideration, namely the context of the timetable that had been set by Senior Member Lothian (ground 3). Further, it was submitted that the delay by the applicant was either excessive or it was not excessive, and that the context, provided by the timetable set by Senior Member Lothian, could not rationally convert a delay that was acceptable into one which was inordinate (ground 4).

58 In response, counsel for the respondent submitted that the Tribunal was not required, by the terms of s 76 of the Act, to consider the length of the delay, either taken in isolation, or in the context of the procedural timetable, as a condition of the exercise by it of the statutory power under the section. Further, counsel submitted that the test, as prescribed by the authorities, is not simply whether there has been an inordinate and inexcusable delay, but rather whether the delay was such as to give rise to substantial risk that it is not possible to have a fair trial of a proceeding. In those circumstances, it was submitted, the length of the delay should not be considered in a vacuum, but rather in the context of the particular proceeding. Accordingly, counsel submitted, it was relevant and correct for the Tribunal to have taken into account the context in which Senior Member Lothian prescribed the timetable on 16 December 2020.

59 For the same reasons, counsel submitted that ground 4 must also fail. Counsel noted the observation by Ashley J in Pong Property Development Pty Ltd v Strangio[42] that the court should be reluctant to conclude that a decision made by the Tribunal, which involved the formation of an opinion and exercise of a discretion, was so unreasonable as to be untenable.

60 Counsel noted that the applicant appeared to submit that it was manifestly unreasonable for the Tribunal to find that the proposed three weeks, for the respondent to prepare for the trial following the close of exchange of witness statements, was insufficient. In that respect, counsel for the respondent submitted that that contention, advanced on behalf of the applicant, was not capable of rendering the conclusion by the Tribunal to be unreasonable in the sense discussed in the authorities. Further, the submission advanced on behalf of the applicant failed to take into account the consideration by Senior Member Kirton of the various steps which the applicant would need to take during the three weeks before the hearing of the proceeding, and the complexity and nature of the hearing itself.

61 As the principles, to which I have referred, make clear, the question of the delay by the applicant in prosecution of the proceeding, the extent and nature of the delay, and the effect of it, are principal factors which must be taken into account in determining whether the proceeding should be dismissed for want of prosecution.

62 The applicant has not advanced any basis upon which it should be inferred, from s 76 of the Act, that the Tribunal must consider the delay, by an applicant, in isolation from the context in which the delay occurred, and, conversely, that the Tribunal must disregard the context to the delay. On the contrary, on a plain analysis, it is not only relevant, but indeed, in most cases, necessary, for the Tribunal in question to consider the particular delay, not in isolation, but rather in the context in which it occurred in the proceeding.

63 As the authorities to which I have referred recognise, in a case in which there has been delay in the commencement of the proceeding, the courts require the applicant to proceed with greater expedition in the conduct of the interlocutory steps which are necessary to prepare the proceeding for trial.[43] A fortiori, it would follow that, in considering whether a period of delay in question was excessive and inordinate, it is equally relevant to take into account the progress of the proceeding after its commencement up until the time at which the delay in question occurred. That consideration is a necessary aspect of the court's assessment of the nature and extent of the particular delay.

64 In accordance with principles stated by Tadgell and Ormiston JJ in Bishopsgate Insurance, in determining whether the delay is inordinate and excessive, it is relevant to take into account the effect of the delay on the completion of the proceeding. In the present case, the orders made by Senior Member Lothian on 16 December 2020 were specifically directed to ensuring that the interlocutory steps - including the provision of the further expert report by the applicant and the exchange of witness statements by the parties - were completed in sufficient time to enable the parties to have six weeks to prepare for the trial of the action that was listed for hearing on 15 November 2021. Those orders themselves were made in the context of a proceeding which had been the subject of significant inactivity and delay since its commencement in January 2017.

65 In those circumstances, it was relevant for the Tribunal to take into account the particular context in which the delays in question had taken place. The applicant has not sought to impugn, nor could it, the Tribunal's finding that if the applicant was able to comply with the proposed amended timetable, the respondent would not have sufficient time to be able to prepare for trial in order to be able to conduct its case on 15 November 2021.[44] That consideration, of itself, was an important aspect of the context to the determination of the question whether the delay by the applicant was inordinate and excessive.

66 Further, the applicant has not sought to impugn, not could it, the finding by the Senior Member that, in view of the previous conduct by the applicant in the proceeding, it was 'highly unlikely' that the applicant would be able to prepare and file witness statements by 4 October, or reply witness statements by 25 October, or provide a supplementary expert report by 4 October, as proposed by the applicant.[45] Thus, in determining the issue of delay, it was relevant for the Tribunal to take into account, not just the delay to the date of hearing, but the potential delay, and the effects of that delay on the conduct of the proceeding.

67 For those reasons, each of the three grounds of appeal under consideration must fail. Specifically, the Tribunal did not err in taking into account the context in which the delay in question occurred (ground 3). It follows that the Tribunal equally did not fall into error by not confining its consideration to the 'delay in isolation' (ground 2). It follows that the Tribunal did not act unreasonably in determining that, notwithstanding that the delay 'in isolation' was not inordinate, it became so in the context of the timetable set by Senior Member Lothian on 16 December 2020 (ground 4).

68 Grounds 5, 6 and 7 are directed to the conclusion by the Senior Member that the delays by the applicant had caused, or would be likely to cause, serious prejudice to the respondent. The grounds focus on the circumstance that the Tribunal, in reaching that conclusion, took into account that, because the respondent would not be in a position to conduct the hearing on 15 November 2021, the trial of the proceeding would not be able to be held until March 2023, due to the well-known delays in the listing of trials in the Tribunal.

69 Specifically, under ground 5(a), the applicant submitted that, in reaching that conclusion, the Tribunal failed to take into account a relevant consideration, namely, the Tribunal's own finding that the applicant's delay in filing the expert report was fourteen weeks and that the delay for filing the witness statements would be three weeks. Under ground 5(b) and ground 6, it was submitted that the Senior Member took into account an irrelevant consideration, namely, that if the trial of a proceeding could not commence in November 2021, the next trial date would not be until March 2023. Counsel submitted that that consideration was irrelevant, because that delay would not be due to the default by the applicant, but rather it would be a consequence of the listing problems in the Tribunal. It was contended that the relevant prejudice, to be taken into account, must be confined to the prejudice that was due to the fourteen week delay in the provision of the expert witness report and the delay in filing the witness statements.

70 In response, counsel for the respondent submitted that the fact, that the delay which would occur in re-listing the proceeding was not due to any fault of Pearl Hill, was irrelevant to the consideration of the question of whether, as a result of the default of the applicant, the respondent would suffer prejudice. Counsel submitted that the authorities, including the decision of the Full Court in Bishopsgate Insurance, had made it plain that the Tribunal was required to consider the prejudice to the respondent at the time at which the proceeding was likely to reach final determination. In accordance with that principle, the Tribunal correctly considered that the current prejudice, and the likely future prejudice to the respondent, were a consequence of the default by the applicant. In particular, as a consequence of the default, it would be necessary to vacate the trial date that had been fixed at 15 November 2021, and as a result the trial would not be able to be conducted until March 2023. In that way, it was submitted, the Senior Member correctly assessed the prejudice at the time at which it may be fairly estimated that the case would be tried to conclusion.

Grounds 5, 6 and 7 - analysis and conclusion

71 The fundamental point, relied on in support of each of grounds 5, 6 and 7, is that, in considering the prejudice suffered by the respondent, the Tribunal erred in taking into account the potential delay in re-listing the trial of the proceeding, because that part of the delay was not, and would not be, due to any default by the applicant.

72 For the following reasons, that proposition is contrary to the principles established in the cases relating to the dismissal of a proceeding for want of prosecution.

73 In the passage in Chris Smaller (Transport), to which I have earlier referred, Lord Griffiths stated, that the relevant issue is whether the delay in question would give rise to a substantial risk that it would not be possible to have a fair trial of the issues in the action.[46] As I have noted, in Bishopsgate Insurance, Tadgell and Ormiston JJ thus concluded that the relevant prejudice extends to the time at which it is likely it would be suffered, namely, the time at which it might be fairly expected that the proceeding would be tried to conclusion.[47] Their Honours stated:

So far as likely prejudice to the conduct of the fair trial is concerned the critical time is the time at which the action is likely to be heard. In the case of prejudice resulting from a defendant being kept at risk in respect of the subject matter of the action, the relevant period will extend from the time the action is bought to the time that it is likely to be heard. In each case due allowance should be made for the time which any action will ordinarily take to reach final conclusion.

...

Relevant prejudice must in these circumstances extend to that which will be likely to be suffered up to the time at which it may fairly be estimated that the case will be tried to conclusion, by considering the additional delay after the writ was issued.[48]

74 In the present case, the applicant has not put in issue the conclusion by the Senior Member that, as a result of the delays by the applicant, the respondent would not be in a position to conduct its case at the hearing on 15 November 2021, and that if he were to apply for an adjournment, it would be likely that that application would be granted.[49]

75 Thus, the likely vacation of the trial date, and adjournment of the proceeding, was a direct consequence of the defaults by the applicant. It inexorably follows, from that conclusion, that the consequential delay in the re-listing of the proceeding for trial was a result of the defaults by the applicant. The circumstance that, due to its heavy workload and delays, the Tribunal would not be able to afford a further hearing date for the application until March 2023, could not logically break that 'chain' of causation.

76 The fundamental premise of each of grounds 5, 6 and 7 is that the Tribunal was confined to considering the particular prejudice which directly followed from the fourteen week delay in the provision of the expert report and of the three week delay in the provision of witness statements. As I have discussed, such an analysis ignores a fundamentally relevant point, namely, the effect of the defaults by the applicant on the ability of the parties to commence and conduct the trial of the proceeding on 15 November 2021. As such, the submissions advanced on behalf of the applicant are contrary to the principles stated in the authorities to which I have referred, namely, that the prejudice to the respondent was to be assessed at the time at which it might fairly be expected that the proceeding would, ultimately, be tried to conclusion.

77 For those reasons, grounds 5, 6 and 7 must fail. It follows that each of the grounds, on which the applicant has sought to appeal the decision of the Tribunal based on s76 of the Act, do not succeed.

78 I now turn to the remaining grounds which are directed to the Tribunal's decision under s 78 of the Act.

79 Counsel for the applicant advanced two submissions under ground 9(a). First, it was submitted that it was irrelevant that the applicant had not made a formal application for an alternative remedy, because its counsel had, in the hearing before the Tribunal, made a request from the Bar table that the timetable be extended and the hearing date retained. Secondly, it was submitted, in any event, the failure by the applicant to apply for an alternative remedy was not relevant to the question whether there was an alternative remedy available that would not result in unfair prejudice to the respondent.

80 Under ground 9(b), counsel submitted that the observation by the Tribunal, that there could be no 'guarantee' that the applicant would comply with the alternative timetable that it had proposed, was not relevant to the question whether there was an alternative remedy available. It was further submitted that the observation by the Senior Member was plainly a matter of speculation, which was irrelevant, especially in a case in which (it was submitted) the appropriate remedy was for the Senior Member to make a self-executing order against the applicant.

81 Under ground (9)(c), counsel contended that the Tribunal's observation, that it would not be 'fair' to the respondent to make a self-executing order, was irrelevant to the question whether there was such a remedy available.

82 In response, counsel for the respondent noted that the applicant had not challenged the conclusion by the Senior Member, under s 78(1), that the applicant was conducting the proceeding in a way that necessarily disadvantaged the respondent.[50] Counsel further submitted that the applicant had not sought to demonstrate how the three matters, that are the subject of ground 9, contravene any implied limitation on the factors to which the Senior Member could legitimately have regard under s 78(2) of the Act.

83 Specifically, in respect of ground 9(a), counsel noted that the Senior Member did, in fact, proceed to consider the alternative remedy that it was proposed by counsel for the applicant from the Bar table, namely, the extension of the timetable and retention of the hearing date. Thus, the Senior Member did have regard to an alternative remedy. The fact that the applicant had not made a formal application was, ultimately, of no moment in the exercise by the Tribunal of its discretion.

84 In respect of ground 9(b), counsel submitted that the Tribunal's lack of confidence, that the applicant would comply with a self-executing order, was a relevant consideration, and it was not a matter which the Tribunal was precluded from considering under s 78(2) of the Act.

85 In response to ground 9(c), counsel for the respondent submitted that, in considering the alternative timetable proposed by the applicant's counsel, it was plainly relevant for the Tribunal to consider, and take into account, whether it would be fair to the respondent to make a further self-executing order as contended for on behalf of the applicant.

86 In addressing ground 9 as a whole, counsel for the respondent submitted that the Senior Member had properly considered the availability and practicality of alternative remedies in the form of a self-executing order and extension to the timetable. Senior Member Kirton noted that the applicant had breached orders made by Senior Member Lothian requiring it to file and serve an expert report and witness statements, and she concluded that a self-executing order and extension of the timetable would not suffice to preclude the prejudice to the respondent arising from the defaults of the applicant. Accordingly, it was submitted, the applicant could not establish that the Senior Member had failed to properly consider the availability of an alternative remedy for the defaults by the applicant.

87 It is common ground that it was relevant (and indeed necessary), that in exercising its discretion under s 78 of the Act, the Tribunal consider whether there may be an alternative remedy available, which would not cause prejudice to the respondent, but which would enable the proceeding to be heard on its merits. Notwithstanding the submissions advanced on behalf of the applicant, each of the matters that are the subject of ground 9 were, in my view, properly taken into account, and relevant, in the determination by the Senior Member that no such alternative remedy was available in the case. In any event, as the respondent has correctly submitted, the applicant has not demonstrated how the three matters, that are the subject of ground 9, infringe any implied limitation on the factors which the Tribunal was entitled to take into account.

88 The first such matter, which is the subject of ground 9(a), was the observation by the Senior Member that the applicant had not applied for an alternative remedy, but, instead, had 'simply' made a request from the Bar table that the timetable could be extended and the hearing date retained. It has not been demonstrated why the Tribunal member could not take into account, in assessing that alternative remedy, the fact that it had been proffered in the course of submissions, rather than being the subject of a formal application to the Tribunal supported by an appropriate affidavit. In any event, the Tribunal did, in the next paragraph of her reasons, proceed to consider the alternative remedy that had been proposed, in argument, by counsel acting for the applicant.

89 The submissions advanced under ground 9(b) are based on one phrase, taken in isolation, from the paragraph of the reasons in which the Senior Member concluded that it was unlikely, in any event, that the applicant would comply with an amended timetable put forward by it.

90 The Senior Member did commence that paragraph by observing that there was 'no guarantee' that the applicant would comply with an order containing an extended timetable. However, in the next sentence, the Senior Member proceeded to state that, in view of the history of the applicant's failure to comply with orders throughout the proceedings, she had 'no confidence' that it would comply with an amended timetable. In that respect, the Senior Member noted that the Tribunal had previously made other self-executing orders following non-compliance by the applicant with orders of the Tribunal, that the applicant had complied with those self-executing orders so that the proceeding could be reinstated, but subsequently it had not complied with any other orders.[51] Thus, taken as a whole, the passage in the Senior Member's reasons, relied on under ground 9(b), provides a relevant reason why the Senior Member did not consider that there was an alternative remedy available in the circumstances.

91 Ground 9(c) focusses on the last sentence of the paragraph to which I have just referred, in which the Senior Member stated that she did not consider it would be fair to the respondent to make a self-executing order in the circumstances.

92 The applicant has not demonstrated why such a consideration would be the subject of any implied limitation on the factors to which the Tribunal could legitimately have regard in the exercise of its powers under s 78 of the Act. Rather, in determining that question, it was relevant and apposite for the Tribunal to consider whether the alternative remedy proffered by the applicant - the extension of the timetable and retention of the trial date - would be fair to the respondent. The Senior Member's conclusion, on that point, was consistent with, and derived from, her earlier consideration that if the applicant were allowed more time to comply with its obligations in respect of the expert report and the provision of witness statements, the respondent would not be in a position to conduct its case on the date on which the case had been fixed for trial on 15 November 2021.

93 For those reasons, I am not persuaded that any of the three matters, that are the subject of ground 9, were irrelevant to the conclusion by the Senior Member that there was no alternative remedy available in the circumstances. Accordingly, ground 9 must fail.

94 Under ground 10, counsel for the applicant submitted that the Tribunal failed to have regard to three relevant considerations in deciding to dismiss the applicant's claim, and to determine the counterclaim in favour of the respondent, pursuant to s 78 of the Act.

95 In particular, under ground 10(a), counsel submitted that the Tribunal failed to take into account the consideration that, if the proceeding were dismissed without adjudication, the applicant would thereby lose its right to claim a significant amount of money in circumstances in which its cause of action, in respect of that claim, was now statute barred. Thus, it was submitted, the Senior Member failed to take into account the patent hardship which the applicant would sustain if the proceeding were dismissed under s 78 of the Act.

96 In support of ground 10(b), counsel submitted that the Tribunal had failed to take into account the relevant consideration that dismissal of the claim, and determination of the counterclaim in favour of the respondent, was a remedy of 'last resort' and not 'first resort', and failed to take into account that other options were available, including making a self-executing order, or making an order adjourning the date that had been fixed to hear the proceeding.

97 In support of ground 10(c), counsel for the applicant contended that the Senior Member had failed to consider that the order, which she made under s 78, would deprive the applicant of an opportunity to have its claim, and its defence of the counterclaim, heard on their merits.

98 In response, counsel for the respondent submitted that ground 10 is without merit. In particular, in respect to grounds 10(a) and (c), the Senior Member had noted that the remedy provided by s 78 should be one of last resort. The Senior Member had, early in her reasons, given consideration to the extent to which the applicant would suffer hardship if the proceeding were summarily dismissed.

99 In response to ground 10(b), counsel for the respondent also noted that the Senior Member had, in determining the application under s 76 of the Act, given consideration as to whether any other option were available, including a self-executing order or adjournment of the proceeding.

100 As I have earlier discussed, in considering whether the proceeding should be dismissed for want of prosecution, the Senior Member did expressly address the question whether, as a result, the applicant would suffer significant hardship. It was not necessary, when considering the application under s 78, for the Senior Member to revisit her findings in that respect. Contrary to ground 10(c), the Senior Member expressly took into account that ordinarily case management should not be employed so as to shut a party out of litigating its claim, and that ordinarily a party should be given an opportunity to be heard on the merits of the proceeding.[52] The submissions, advanced on behalf of the applicant under ground 10(a) and (c), in reality, take issue with the conclusions drawn by the Senior Member in respect of each of those two considerations.

101 Similarly, contrary to ground 10(b), the Senior Member expressly acknowledged that the discretion under s 78 is one which provides a remedy of last resort. Specifically, the Senior Member stated:

It is well established that the discretion under s 78 is one 'that should only be exercised when there is no other way to achieve a just outcome' and provides a remedy 'of last resort and not first resort'.[53]

102 It is clear that the Senior Member did more than pay lip service to that proposition. As I have discussed, the Senior Member gave consideration as to whether there was any alternative remedy available other than the summary dismissal of the applicant's claim. Her conclusion, that there was no alternative remedy available that would not cause extreme prejudice to the respondent, had, as corollary, the conclusion that summary dismissal of the applicant's claim was a remedy of last resort.

Grounds 11 and 12 - submissions and conclusion

104 Grounds 11 and 12 are based on the proposition that the Tribunal does not have power to determine a counterclaim in favour of a respondent for conduct to which s 78 applies. In its written submissions, and at the hearing of the application for leave to appeal, counsel did not advance any argument in support of that proposition.

105 In construing s 78, and, in particular, s78 (2), it is necessary to consider the text, context and the purpose of the provision.[54]

106 The plain text of s 78(2)(b) is contrary to the conclusion contended for under grounds 11 and 12. Section 3 of the Act defines 'application' to mean 'application to the Tribunal'. The word 'applicant' is defined to mean (inter alia) 'a person who makes an application'. Accordingly, in making a claim by way of counterclaim, the respondent, in that respect, was an 'applicant' for the purposes of the Act.

107 The context and purpose of s 78 also support that conclusion. The proposition, which underlies grounds 11 and 12, is that the relief, provided by way of s 78, is only available to the party which initially commenced the proceeding, and was thus described as the 'applicant' in the proceeding. An interpretation of s 78(2)(b), in that way, would necessarily be productive of anomalous consequences which, it might be concluded, would not have been in contemplation of the legislature. The interpretation of s 78(2), that underpins grounds 11 and 12, would have the consequence that if two parties to a dispute each had a claim against the other, s 78(2) would only be available to the party which managed to first institute proceedings in respect of its claim. In such a case, that party might institute a claim, not prosecute it, persistently engage in conduct that disadvantaged the other party who had advanced a counterclaim, and yet not be amenable to relief under s 78(2). It might readily be inferred that such an interpretation, of s 78(2), would defeat the manifest purpose of the legislature.

108 Accordingly, as a claimant for relief by way of the counterclaim, the respondent (Mr Moulieris) is an applicant in respect of that claim. It follows that s 78(2)(b)(i) applied to the application that was before the Senior Member, so that the Tribunal had the power to determine the counterclaim in favour of Mr Moulieris and make appropriate orders in doing so.

109 For those reasons, grounds 11 and 12 do not succeed.

110 For the foregoing reasons, I have concluded that the applicant does not succeed on any of the grounds of appeal sought to be relied. I do not consider that any of those grounds were sufficiently arguable to justify the grant of leave to appeal, in respect of them, under s 148(2A) of the Act.

111 Accordingly, I refuse the applicant leave to appeal from the decision of the Tribunal dated 30 September 2021.

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

[2] ACN 115 918 959 Pty Ltd v Moulieris [2021] VCAT 1136 ('Reasons').

[17] (2001) 207 CLR 72.

[18] Ibid 79 [15]; see also Osland v Secretary to the Department of Justice [2010] HCA 24; (2010) 241 CLR 320, 331-2 [18] (French CJ, Gummow and Bell JJ), 351 [71] (Hayne and Keifel JJ).

[19] (1985) 162 CLR 24 ('Peko-Wallsend').

[21] Ibid 55; see also Foster v Minister for Customs [2000] HCA 38; (2000) 200 CLR 442, 452 [20] (Gleeson CJ and McHugh JJ); Love v State of Victoria [2009] VSC 215 [205] (Cavanough J).

[22] Ibid 40; see also Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 472, 496 (Latham CJ), 505 (Dixon J); Phosphate Co-Operative Co of Australia Ltd v Environment Protection Authority [1977] HCA 65; (1977) 138 CLR 134, 136-7 (Stephen J); Sinclair v Tripodis Constructions Pty Ltd [2013] VSC 722 [21] (Emerton J); Lanigan v Circus Oz [2022] VSC 35 [113] (McDonald J).

[23] Minister for Immigration & Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332, 367 [76] (Hayne, Kiefel and Bell JJ); Minister for Immigration v SZMDS (2010) 242 CLR 611, 647-8 [130] (Crennan and Bell JJ); S v Crimes Compensation Tribunal [1998] 1 VR 83, 89 (Phillips JA).

[24] Minister for Immigration & Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541, 551 [11] (Kiefel CJ).

[25] [1993] 3 VR 864 ('Bishopsgate Insurance').

[26] [1989] 1 AC 1197 ('Chris Smaller (Transport)').

[37] [2003] VSC 255.

[42] [2005] VSC 217 [57].

[43] Bishopsgate Insurance, 874 [32]; Jack Brabham Holdings Pty Ltd v Minister for Industry (1988) 85 ALR 640, 649.

[46] Chris Smaller (Transport), 1203.

[47] Bishopsgate Insurance, 876 [35].

[54] Alcan(NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, 46-'7; Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378.388-'92 [23]-[31] (French CJ, Hayne J).