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

Belief that Ms Arden has conducted the proceeding in a way that unnecessarily disadvantages the TAC

1. The background to this matter (see [3]) demonstrates the delay in progressing the application that is attributable to Ms Arden failing to provide timely instructions to Maurice Blackburn to enable them to progress the Application.
2. Although those delays in progressing the matter largely occurred under the dispute resolution processes envisaged by the Protocols, rather than being the subject of orders made by the Tribunal, they can still be taken into account because the conduct set out in paragraphs (a) to (g) of section 78(1) are merely examples of conduct that might cause unnecessary disadvantage to another party.
3. The Protocols set out the information that an applicant is required to provide to the TAC before a 'pre-issue conference', depending on the nature of the dispute.
4. In the case of a loss of earning capacity dispute, the requirements are set out at [11.2] of the Protocols. Naturally, an applicant is required to provide details of their earnings prior to the transport accident, details of the work undertaken by the applicant subsequent to the accident, evidence as to the consequential loss of earnings (and any other reimbursements received) and relevant medical reports and treating notes.
5. In the case of 'medical and like benefit disputes', the requirements are set out at [12.2] of the Protocols and include the reasons why the benefit or treatment should be provided or continued, relevant medical reports and treating notes and copies of any non-medical expert reports relied upon.
6. At [16.6] and [16.10] of the Protocols, the link between the pre-issue review procedures and any VCAT proceeding is made clear as follows:

This protocol contemplates that where a dispute has been the subject of a pre-issue review, the Application for Review will have defined and confined the issues remaining in dispute and that all relevant documentation required for review of the decision that are relevant and in existence should have been exchanged.

...

... it is expected that neither party will rely on evidence or documents which were not exchanged and disclosed at the pre-issue review or the pre-issue conference ... except by consent or by the leave of the VCAT.

1. On the material produced by the TAC (and not disputed by Ms Knapic on behalf of Ms Arden), I believe that Ms Arden's conduct in failing to produce the information contemplated by the Protocols disadvantages the TAC. The TAC does not know the issues that are still in dispute in this proceeding and what evidence it is required to meet in seeking to have the Tribunal affirm the 2013 Decisions. Further, it has incurred legal costs in terms of the (employee) solicitors involved in the conduct of the pre-issue review process and the VCAT proceeding.

1. In my view, the nature of Ms Arden's conduct, as described above and which took place over an extraordinarily lengthy period, is sufficiently disadvantageous to the TAC to warrant the summary dismissal of the proceeding.
2. In terms of alternative remedies, Ms Arden has proposed that she be given a further adjournment in order to address the concerns she has raised (as to the authorisations or clearances she considers that VCAT and/or the TAC must have) and to obtain the further information she considers to be relevant to the proceeding (referring to other proceedings at VCAT). However, the difficulty is that she has:
   • provided no evidence to support the concerns she has raised and, despite indicating that she wished to speak to me about those matters, has failed to attend directions hearings, when the matter has been listed in person to facilitate such attendance;
   • not identified any other proceedings at VCAT (or elsewhere) to enable the identification of the information she seeks; and
   • not assisted the Tribunal to identify any means to resolve the 'impasse'.
3. In those circumstances, the granting of an adjournment is highly unlikely to assist in progressing the proceeding and is not an alternative remedy that I consider to be appropriate. Further, neither Ms Knapic nor Ms Jobling have been able to identify any other alternatives.
4. I accept that the making of a summary dismissal order is prejudicial to Ms Arden who loses her opportunity for a review on the merits of a governmental decision which concerns her. However, Ms Arden has been afforded a more than sufficient opportunity to progress her case. While it could not be said that her actions are 'contumelious' (i.e. insolent), the delay has been 'inordinate'.[21] While Ms Arden exercised her right to seek review, the delay is of such a nature that she must be regarded as having made a choice not to pursue that review.
5. While there is a power to make an award of costs under section 79 of the Transport Accident Act 1986 (Vic) and/or under section 78(2)(c) of the VCAT Act, I do not consider an award of costs to be an appropriate alternative to dismissal in the circumstances of this matter. In this regard, I have no evidence as to whether Ms Arden would be in a position to satisfy an award of costs but, even if she was, it would not address the impact of the delay on:
   • her own solicitors, who I infer have been working on a no-win no-fee basis for over 10 years, despite her lack of instructions; and
   • on the Tribunal, and other parties that come before it, of resources being devoted to the ongoing management of this proceeding.

1. For these reasons, I consider that section 78(1) is engaged and it is appropriate to make an order dismissing the proceeding under section 78(2).
2. The TAC submitted that there should be no order as to costs. While it is probably unnecessary to make such an order, I have done so for certainty and to bring the proceeding to finality.

[1] The Protocols are available at https://www.tac.vic.gov.au/clients/forms-and-brochures-clients/information-brochures/other-publications/dispute-resolution-protocols. As the dispute resolution application was lodged by Maurice Blackburn in May 2015, the original (2005) version of the Protocols apply (rather than the updated version from 2016).

[2] Orders were made under s 30 of the Open Courts Act 2013 (Vic), in the interests of justice, to enable Ms Knapic to convey sensitive aspects of her instructions from Ms Arden.

[9] Ibid [14]-[15] (the statement is attached as TAC-2).

[16] Interpretation of Legislation Act 1984 (Vic), s 45.

[17] [2003] VSC 255.

[18] ACN 115 918 959 Pty Ltd (ACN 115 918 959) (Formerly known as Pearl Hill Pty Ltd) v Alex Moulieris [2024] VSCA 71 [27].

[19] [2003] VSC 255 [51]-[52].

[20] [2021] VCAT 1136 [59].

[21] While these matters are usually considered in the context of a summary dismissal application under section 76 of the VCAT Act, I consider they are also relevant in the context of section 78.