1. Following Ms Burnell's VCAT application, the Tribunal attempted to list a directions hearing. Ms Burnell advised she suffers from significant hearing disability and that due to other issues she was unable to attend in person. VCAT offered to conduct an online directions hearing, using a 'chat forum' or e-mail. The Victorian Government Solicitors Office (VGSO), which acts for VOCAT, agreed. Ms Burnell advised she was unable to access a computer for that purpose, despite her frequently emailing VCAT. She advised she was unable to focus on the proceeding given her mother's ill health.
2. A directions hearing was scheduled for August 2013. Ms Burnell was advised if she was not able to participate in some fashion, the proceeding may be struck out.
3. In August, Ms Burnell advised the person with whom she had a 'live-in arrangement' had died. She said she was arranging for Victoria Legal Aid to represent her at the August directions hearing. The VCAT registry contacted Victoria Legal Aid, which advised it did not have instructions to appear.
4. Ms Burnell sought orders from VCAT concerning her continued residence at the deceased's home, including access to 'keyboards and services' and access to a car. VCAT had no jurisdiction to make such orders in this proceeding.
5. In mid-August, VCAT adjourned the August directions hearing given the distress Ms Burnell said (by email) she was suffering and disputes she was apparently involved in, following the death of the deceased. I directed the directions hearing would only be scheduled after Ms Burnell advised either she would attend the directions hearing in person or would participate online.
6. In late August 2013, Ms Burnell advised she no longer had access to a computer and would attend the directions hearing in person.
7. The parties attended a September 2013 directions hearing; Ms Burnell in person and VOCAT represented by Ms Ritchie of the VGSO. We used keyboards to converse with the text projected on a hearing room wall. This worked reasonably well.
8. I clarified Ms Burnell could only seek review of VOCAT's decision of 18 March 2013.
9. A timetable for filing and serving documents was set, planning for an early 2014 hearing. This included another directions hearing in December 2013, to check all was ready.
10. The hearing appeared likely to proceed based on written evidence in chief, cross-examination with the assistance of a signing interpreter and submissions in writing following the hearing, with keyboards and software enabling the VCAT member and the parties to communicate.
11. Before the December directions hearing, Ms Burnell had not provided documents. She had written to explain why. I excused VOCAT from providing documents.
12. At the December directions hearing, which largely proceeded using keyboards and projected text, VOCAT applied for the proceeding to be dismissed for want of prosecution. Both parties were given time to make written submissions. The last submissions were due in mid January.

1. During January, VCAT received substantial documentation from Ms Burnell, in part being submissions as to why this proceeding should not be struck out.

1. On 22 January, I ordered that those documents be copied to the VGSO with any reply submission to be made by 31 January 2014. The VGSO replied no further submission would be made. Unfortunately, that reply was not referred to me.
2. VCAT next heard from Ms Burnell in a letter dated 11 March 2014, in part saying she had not received a response to the strike out application. This was referred to me. I turned to writing the decision.

1. On 26 March 2014, I ordered that the proceeding be struck out. However, Ms Burnell was permitted to seek reinstatement on or before 16 May 2014. Any application for reinstatement was to be accompanied by relevant witness statements. If no reinstatement application was made, the proceeding would be at an end.
2. In reasons published to the parties,[1] I said the proceeding had seen inordinate delay. However, I did not view the delay as inexcusable
3. While in person Ms Burnell is seemingly well educated and well able to articulate her point of view, she seemed not to understand the limitations of VCAT's jurisdiction in this proceeding. She constantly wrote of other legal issues including discrimination against her by various government bodies and ill treatment offered by others, in part related to the death of her friend.
4. Ms Burnell had faced very difficult circumstances. She has a severe hearing disability. A person apparently close to her had died. Her mother had been very ill. Ms Burnell had been ill. She was seemingly surrounded by conflicts with others, both individuals and government agencies.
5. I also said the proceeding could not continue in the same fashion as it had. Ms Burnell alleged an act of violence happened in 2008, then about six years ago.
6. VCAT then received correspondence from Ms Burnell, none of it being an application for reinstatement. On 11 June 2014, VCAT received Ms Burnell's application for reinstatement. The application for reinstatement did not include the required witness statement/s.
7. However, it did include substantial documentation concerning her involvement in a residential tenancies dispute, in which Victoria Legal Aid represented her. This included VCAT making orders to enable her to regain possessions, which I understand included computer records and other records. I was not involved in the residential tenancies proceeding.
8. In an email dated 12 June 2014, Ms Burnell spoke of being locked out of her rental premises on 27 May 2014 and discovering on 4 June 2014, when she was permitted to return to the premises to retrieve possessions, that her VCAT files and computer files had been stolen, including submissions ordered to be filed before VCAT on 16 May 2014.
9. By orders of 13 June 2014, I said if Ms Burnell provided relevant witness statements on or before 31 July 2014, I would consider her reinstatement application. I also said that if she failed to do so the proceeding would be dismissed without further notice.
10. Given the apparently extenuating circumstances of her being unable to access the records from her previously rented premises, it was appropriate to extend the time available to her. In taking that view, I regarded her speech and hearing disabilities as relevant, as well as the apparent difficulty in stress of being involved in the residential tenancies dispute.
11. Ms Burnell applied for reinstatement and by orders dated 13 August 2014, a one-day hearing was scheduled on 7 October 2014.
12. On 7 October 2014, Ms Burnell did not appear at the hearing. Another VCAT member struck the proceeding out, given her non-appearance and ordered that she pay VOCAT's costs of $1,909.
13. Ms Burnell applied to have the proceeding reinstated on the basis that she had a reasonable excuse for not attending the 7 October hearing.[2]
14. While a directions hearing to the decide the reinstatement application was scheduled on 17 November 2014, that was adjourned due to Ms Burnell advising she was suffering ill health.
15. On 23 December 2014, VCAT noted Ms Burnell's ill-health continued and gave her liberty to request a hearing concerning her application once she was well enough to attend.

1. VCAT did not hear from Ms Burnell until mid-2016. By email dated 28 June 2016, she requested that her reinstatement application be heard.
2. The reinstatement hearing was scheduled for 19 July 2016, anticipating that once again, those concerned would communicate by keyboard.
3. In an email dated 7 July 2016, Ms Burnell advised VCAT she had 'fled family Violence' and was in New South Wales.
4. To cut a long story (involving much correspondence) short, attempts to enable Ms Burnell to attend the hearing remotely with all concerned being able to type and communicate failed due to information technology limitations.

1. The parties then agreed that Ms Burnell's reinstatement application and VOCAT's application that the proceeding be dismissed be heard and determined on the basis of their documents without appearance by the parties, their representatives or witnesses, under s 100(2) of the VCAT Act.
2. A schedule for filing and serving documents was put in place. On or before 2 August 2016, Ms Burnell was to file and serve a written submission as to why her application should be reinstated. On or before 9 August 2016, VOCAT was to file and serve its written submissions. On or before 16 August 2016, Ms Burnell was to file and serve submissions in reply.
3. As described below, Ms Burnell made multiple submissions. VOCAT submitted that Ms Burnell's reinstatement application should be refused and the proceeding dismissed under s 75 of the VCAT Act, on the basis that Ms Burnell's original application was misconceived or lacking in substance or under s 78 on the basis of the proceeding has been conducted in a way that unnecessarily disadvantaged VOCAT. Ms Burnell made submissions in reply.

1. Ms Burnell made initial submissions dated 2 and 11 August 2016 totalling approximately 60 pages including attachments.
2. They mostly addressed issues not directly relevant to the potential outcome of this proceeding, but provided explanation for various delays in this proceeding.
3. She raised many issues, including complaints to 'Chief Inspector Lay' Victoria Police about potential police cover-up of alleged offences, harassment and defamation by the television program 'A Current Affair', a family property dispute, unlawful conduct by a company entering premises without warrant, a family dispute about the decision-making capacity of Ms Burnell's mother, an alleged assault on her by her brother in 2015, an unsuccessful attempt to initiate proceedings in the Supreme Court of Victoria, Ms Burnell being injured in a bus incident, seizure by Victoria Police of Ms Burnell's possessions in 2015, wrongful storage of Ms Burnell's possessions with a storage company, conduct by the VGSO said to have cause significant damage to Ms Burnell's family relationships, 2014 alleged harassment of Ms Burnell and her mother by family members, the diagnosis of her mother with dementia in late 2014, a family dispute arising concerning Ms Burnell being paid by Centrelink as a carer, 'Organised crime and offenders' seizing Ms Burnell's VCAT files and witness statements, Ms Burnell not being able to leave home due to her mother's deteriorating health, in 2015 Ms Burnell's brother taking their mother 'hostage', a report to IBAC concerning corruption, solicitors apparently instructed by Ms Burnell to bring an action against MLC Insurance and to 'set aside probate in an estate matter', the need to grieve for the "loss of her friend Mr Philip Payne, her mother, father and uncle'.
4. In her 2 August submission, Ms Burnell addressed the merits of application to VOCAT and on review at VCAT. This referred to her past solicitor stating she had suffered a serious injury, a medical report concerning serious injury with respect to a prominent bulge in the lumbar region of the spine where it was said to be highly likely the consequence of an assault (not identifying which assault), and MLC insurance claim for loss of earning capacity in damages, the support of a senior detective constable concerning corruption and misconduct by officers of Victoria Police, her mother's deteriorating health which was said to be due to her brothers harassment and the applicant's injuries, 'tear to the meniscus, facial injuries, loss of gallbladder emotional/psychological trauma, prominent bulge to the lumbar spine'.
5. Ms Burnell's 11 August submission confirmed as I understand it, Ms Burnell's mother had passed away in early August 2015 and said Victoria Police had recommended, 'the case be reinvestigated in relation to my mother's estate'. It appears Supreme Court proceedings may be contemplated or in progress concerning her mother's estate. The submission attached an affidavit by Ms Burnell in a Magistrates' Court proceeding where she and her mother were plaintiffs and her brother was the defendant. It concerns a family dispute alleging harassing behaviour by the brother. The affidavit makes a reference to Ms Burnell's mother's evidence that she witnessed her daughter being assaulted in 2008, presumably with reference to the VOCAT and this VCAT proceeding. In the affidavit, Ms Burnell complains of the police failing to take a statement from her mother shortly after the alleged 2008 assault. Attached to the submission was a statement from Ms Burnell's mother describing her daughter being assaulted and violated during the 2008 auction and confirming Victoria Police declined to take a statement from her.
6. After VOCAT's submission was filed and served on 12 August 2016, that day Ms Burnell wrote to VCAT seeking that the VOCAT submission be withdrawn, in part because it was filed three days late. There was no basis for her submission to succeed.
7. By email dated 16 August 2016, Ms Burnell attached a letter from Mr Peter Forbes, Principal and Registered Lobbyist, Lobbying Australia dated 15 August 2016. Mr Forbes described knowing Ms Burnell for many years, in 2009 meeting her by coincidence in restaurant, being surprised that she looked so unwell and providing support to her. Mr Forbes regards Ms Burnell as having suffered injustice. However, he was not present during the alleged 2008 assault. His letter provided no valuable evidence.
8. By email dated 17 August 2016, in a 54-page submission, Ms Burnell repeated various themes from the earlier submissions, advised she had fled to New South Wales due to family violence. She spoke of the discrimination matter being taken forward by legal aid, although other correspondence in this proceeding indicates that is not the case. Apparently, no grant of legal aid was made. She reiterated her view of events related to the alleged assault, adding little to the previously received material.
9. By email dated 19 August 2016, Ms Burnell attached an affidavit by her dated 29 October 2014 apparently prepared in the VOCAT matter dealing with issues concerning her mother's health and family conflict in 2014, with oblique reference to this proceeding, discrimination and the role of Victoria Legal Aid with her affairs.
10. For completeness, I note that the next day Ms Burnell re-sent some of the submissions being concerned VCAT may not have received the 19 August 2016 versions. Some further short emails added nothing to the information available.
11. VCAT then received a submission dated 11 September 2016. The five-page letter addressed her view of the assault she alleges took place, alleging assailants were acting without legal authority at the auction and claiming she suffered serious spinal injury because of the assault. She attached a letter of 17 January 2016 addressed to the Deputy Chief Justice of the Family Court of Australia complaining about the conduct of the Family Court matter as well as making various allegations against various people.

1. In order to consider the matters before me I have gone through the four-volume VCAT file in this proceeding. The minimal evidence from Ms Burnell concerning the 26 July 2008 auction is striking.
2. There are documents recording Ms Burnell's and her mother's evidence of the alleged assault. Such evidence was before VOCAT, according to hearing transcript. In this proceeding, VOCAT has filed witness statements by the two men alleged to have assaulted Ms Burnell and a woman who was an employee of the real estate agent involved in the sale. Those three witness statements deny any assault and corroborate each other. It is notable that if the alleged assault occurred, it was an assault by two professionals involved in the sale of the property in front of a crowd at a public auction.
3. There is scant medical evidence filed in the proceeding. The little there is that relates in any way to 26 July 2008 provides no basis for findings that an alleged assault caused any significant injury.
4. In this reading, I was again struck by evidence of multiple legal proceedings in which Ms Burnell has been involved, the ill-health of her and her mother and claims of assault against her by various people at various times, in context of the disputes in her life.

1. Where a proceeding has been struck out, VCAT has implied power to reinstate the proceeding. The Tribunal has the discretion to consider whether it is appropriate that the proceeding be reinstated. Relevant factors include:
   • (a) the length of the delay in applying for reinstatement;
   • (b) whether there is an acceptable explanation for the delay;
   • (c) whether the delay has prejudicial effect on the respondent; and
   • (d) the merits of the case.[3]

1. I refuse Ms Burnell's application that this proceeding be reinstated.
2. There has been a very long delay in applying for reinstatement. Almost 21 months passed between this proceeding being struck out in October 2014 and Ms Burnell's application for reinstatement in June 2016.
3. This is in the context of Ms Burnell making her initial VCAT application in April 2013, which concerns an alleged event in 2008, VCAT attempting to provide Ms Burnell with the opportunity to have her application for reinstatement heard in 2014, leading to the December 2014 order providing her the opportunity to make further application for reinstatement. It cannot have been in the mind of the VCAT member who made the December 2014 order that Ms Burnell might wait until June 2016 to apply for reinstatement.
4. Concerning acceptable explanation for delay, VCAT members have repeatedly exercised discretion, permitting Ms Burnell to continue with this proceeding, given her disability, her explanations and her life situation.
5. However, in orders and reasons I gave in March 2014 while I did not regard delay to that point as inexcusable I said that the proceeding could not continue in the same fashion as it had to that point.
6. Unfortunately, the proceeding from March 2014 to December 2014 and now since June 2016 has proceeded in exactly the same fashion as it had to March 2014.
   1. Ms Burnell is clearly a person who has faced and faces very difficult circumstances. She has a severe hearing disability. A person apparently close to her has died. Her mother apparently died in 2015. Ms Burnell has been ill. She is seemingly surrounded by conflicts with others, both individuals and government agencies, to the extent that she is apparently now in New South Wales.
   2. That said, I no longer regard Ms Burnell's explanations for delay as acceptable.
   3. I make that judgement in the context of the High Court of Australia's decision in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27. By that decision, the High Court gave greater prominence in balancing the interests of justice to issues of delay and wasted costs, the concerns of case management and that delay has deleterious effects not only upon the party to the proceedings in question is but to other litigants [111 - 114].
   4. Further, I have every reason to suspect that if this proceeding is reinstated, it is unlikely to be heard and decided. Despite their best efforts, the VCAT registry and information technology staff were unable to make arrangements with Ms Burnell to attend a reinstatement hearing via the Internet. That is not a criticism of Ms Burnell. The hearing of the merits of Ms Burnell's application would require her physically attending the hearing. Given the history of this proceeding, in my view it is unlikely Ms Burnell will ever participate in a final hearing.
   5. I accept VOCAT's submission the delay has had prejudicial effect on it and on the witnesses it would call.
   6. In terms of VOCAT's case, it will no doubt again seek to call the two men accused of assaulting Ms Burnell, who deny the allegation, the woman present, who supports the denial, and a Victoria Police member who declined to act on Ms Burnell's complaint.
   7. Concerning those witnesses, in my view they would also suffer prejudice. I understand they were prepared to give evidence in 2014. Eight years after the alleged and unproven assault, they have every right to expect not to have to return to this matter.
   8. VOCAT will have incurred very significant expense in this proceeding to date paid from the public purse, such that in budgetary and community interest terms it suffers prejudice. It is likely that if this proceeding continues, it will continue to suffer such prejudice. Given that under section 109 of the Victorian Civil And Administrative Tribunal Act 1998 the starting position is that parties bear their own costs, it is most unlikely that VCAT would order significant costs against Ms Burnell if she fails in her application. One must also doubt whether any costs order if made would be practicably enforceable against Ms Burnell. I understand she has not paid costs awarded by VCAT to VOCAT, following her not attending the October 2014 final hearing. I also understand VOCAT has not moved to enforce that order.
   9. Concerning the merit of the case, in my view the application has virtually no prospect of success. The weight of evidence is solidly against Ms Burnell.
   10. She would be the sole witness giving evidence at the hearing of the alleged assault Given her mother has passed away, her mother's short supportive affidavit could not be tested in cross examination and so is likely to be given little weight.
   11. Against this evidence is the other witnesses' evidence as described above, which is highly likely to be considered of greater weight.
   12. Also concerning merit, if VCAT set aside VOCAT's decision and found Ms Burnell was such a victim, the question would arise of what monetary payments may be due to her.
   13. According to the VOCAT hearing transcript, according to counsel representing Ms Burnell she was seeking financial assistance concerning medical expenses, dental expenses, hearing aids, clothing, and hearing that was lost, counselling expenses, safety-related expenses being payment from mobile phone and some Medicare related expenses.[4]
   14. While Ms Burnell claims she suffered serious injury because of the alleged assault, the evidence before VOCAT did not support that. She did not provide any persuasive evidence to this effect before the scheduled VCAT hearing or to date. It appears most unlikely she would succeed in any claim for reimbursement of significant medical expenses related to the alleged assault.
   15. Concerning special financial assistance payable under the VOCAT Act, s 8A provides for another type of assistance called 'special financial assistance'.
   16. The amount of any special financial assistance depends on categorisation as one of; Category A ($4,667 to $10,000), B ($1,500 to $3,250), C ($650 to $1,300) or D ($130 to $650).
   17. Categories C and D include offences involving assault.
   18. An assault would likely fall into Category D and so the maximum payable to Ms Burnell in special financial assistance would be $650.
   19. In the context of the very significant expense to the public purse already, the likely further significant expense if this proceeding continues and minimal assistance that would be likely to be paid to Ms Burnell if she succeeded, there again appears to be minimal merit in this proceeding.

1. While Ms Burnell's application for reinstatement is refused, if the proceeding remains struck out there remains the prospect that Ms Burnell will make a further application to have it reinstated. For that reason, VOCAT applied for the proceeding to be struck out under either s 75 or s 78 of the VCAT Act.
2. I dismissed the proceeding under s 75 because Ms Burnell's application is lacking in substance and s 78 because the proceeding has been conducted such that it now unnecessarily disadvantages VOCAT.

1. For the above reasons concerning the lack of evidence in support of Ms Burnell's application and the significant evidence against her application that would apparently be before VCAT at hearing, I regard Ms Burnell's application as doomed to fail. Therefore, the test as to when a proceeding should be struck out under s 75 is passed.

1. Section 78 applies if VCAT believes that a party to a proceeding is conducting the proceeding in a way that unnecessarily disadvantages another party to the proceeding.
2. Given the history and state of this proceeding, the way in which Ms Burnell has conducted the proceeding has reached the point where VOCAT is unnecessarily disadvantaged and will further be unnecessarily disadvantaged if this proceeding continues.
3. In deciding whether or not to exercise discretion under s 78(2), I bear in mind Ashley J's words in Bell Corp Victoria Pty Ltd v Stevenson [2003] VSC 255; (2003) 20 VAR 280.

1. A party should ordinarily be heard upon the merits of the matters in issue and the consequences of dismissal of a proceeding are very serious - However, again with reference to the High Court's decision in Aon, here the way the proceeding has been conducted over the years outweighs these factors. 2. In this proceeding, the time has come to use s 78(2) as a last resort. VCAT has given Ms Burnell opportunities to pursue this proceeding to an end. She has not done so.

1. As discussed above, I do not regard costs orders as a potentially useful tool in this proceeding.
2. Therefore, this proceeding is at an end.

[These orders and reasons were completed on 4 October 2016, for decision hand down on 6 October 2016. By two emails of approximately 11 pm on 4 October and a further two emails on 5 October 2016, the latter emails received after VCAT has advised Ms Burnell of the decision hand down on 6 October, Ms Burnell filed further material.

The 4 October emails repeated previously information in the context of Family Court proceedings, of a similar vein to previous material. The 5 October emails foreshadowed the providing of further medical evidence from a spinal surgeon as well as repeating other matters.

Given the remote likelihood of fresh relevant medical evidence now being provided, in the context of VCAT not having given leave for the filing and serving of further material, in the context that the new evidence claim was made soon after being advised of the decision hand down; this new material has not altered my view, nor persuaded me to wait for further evidence.]

[1] While interim orders and reasons were given to the parties in this proceeding, these are the only published orders and reasons in this proceeding.

[2] While this was characterised as an application under s 120 of the Victorian Civil and Administrative Tribunal Act 1998, with the proceeding struck out rather than dismissed the matter may appropriately be dealt with as a reinstatement application under VCAT implied power to reinstate.

[3] Faturos v Jackson development group Pty Ltd [2007] VCAT 2461 at [15].

[4] Transcript of 18 March 2013, page 5.