1. Ms Caves' solicitors do not negotiate with the TAC under the Transport Accident Act No Fault Dispute Resolution Protocols.[1] When solicitors who do not negotiate under the Protocols lodge an application for their client under the Act, s 78 of the Act applies.
2. Section 77 of the Act enables a person whose interests are affected by a decision of TAC to apply to VCAT for review of the decision. Under s 77(4), once the application is made VCAT may not continue with the proceeding until either ss 80(2), 80(3) or 78(5) come into play. This gives TAC the opportunity to review its decision, as it must under s 78(1), subject to exceptions.
3. Section 78(2) of the Act says:

For the purposes of reconsidering a decision, the Commission may, by notice given to the applicant, require the applicant to give further and better particulars about the reasons for the application to the Tribunal and such further information relating to the claim as the Commission requires.

1. Section 78(3) says an applicant must comply with a notice under subsection (2) within 90 days of being given the notice.
2. By s 78(2) notice dated 31 July 2014, TAC required Ms Caves to within 90 days provide:

1. Her signed statement setting out the circumstances surrounding the 28 July 2012 and l3 June 2013 accidents of and all matters known to her relevant to the review of the decision including: 1. A summary of the injuries in respect of which a permanent impairment is claimed in relation to each of the transport accidents; and 2. Any other injuries or relevant medical conditions which she has suffered (both before and after the accident/s) and in particular all incidents involving injury, aggravation or exacerbation to conditions which she alleges were caused by the transport accident/s; 3. Details of other applications for compensation which she has made including the disposition of any such claim whether by settlement, determination or judgment; 4. Details of the reasons she is of the belief that her permanent impairment related to the transport accident of 28 July2012 is greater than 25%; 5. A list of all medical practitioners who have treated her in relation to the transport accident injuries for either transport accident. 2. Copies of any other medical reports or other information (not previously served on the TAC) which may assist the Tribunal in its review of the decision, including reports or other information upon which she might seek to rely.

1. Copies of assessment/s of permanent impairment under the AMA Fourth Edition Guides which assess her 28 July 2012 transport accident related permanent impairment to be greater than 25%, and which apportion any permanent impairment, if appropriate, between the two transport accidents.

1. Complete medical record, regarding pre-accident conditions of one specialist, two hospitals and treating practitioner/s regarding a right wrist fracture in 2003. 2. Complete medical records and an up-to date medical report of two medical practitioners and a physiotherapy clinic. 3. Complete records of Casey Hospital (Monash Health) regarding the 2013 accident. 4. Copies of complete medical records from 15 February 2013 to date of a medical centre.

1. TAC required the documents and information to undertake a "complete and proper reconsideration" of the decision, and to save VCAT and the parties time, as well as costs, associated with the VCAT applications; 2. If Ms Caves was unable or unwilling to provide any of the above information, TAC requested that she provide reasons to the TAC; and

1. Non-compliance with the notice may result in TAC applying to VCAT under s 78(5) of the Act to have Ms Caves' applications dismissed or struck out.
2. About the end of October 2014, Ms Caves' lawyers provided Ms Caves' statement and some medical records to TAC. They possessed other medical records, but, by letters in November and December 2014, refused to provide them to TAC until TAC paid the $101.45 photocopying cost.

Obligation to provide medical records under s 78(2) of the Act

1. I have rejected the application that TAC now pay the photocopying costs.
2. The reference in s 78(2) to, "further information relating to the claim as the Commission requires" must include medical records, whether in the applicant's possession or accessible to the applicant.
3. It is difficult to understand what "further information" might exist which was not in writing. There is no basis to distinguish medical records from other documents. If the applicant was only obliged to provide information including documentation he or she possessed, it is difficult to see why the Act allows 90 days for it to be provided. "Information" must also include other relevant documents.
4. As TAC submitted, in SZTGV v. Minister of Immigration and Border Protection [2015] FCAFC 3 - the Full Court of the Federal Court of Australia said:

However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation...."

1. Neither s 78(2) nor any other provision of the Act entitles an applicant to withhold medical records subject to what the applicant or the applicant's lawyers' claim is reasonable payment for providing them, including photocopying costs. Those costs will become costs in the VCAT proceeding, to be determined by way of agreement between the parties or by VCAT order, usually at the end of the proceeding.
2. TAC's statutory power to require information under s 78(2) is not fettered by its ability to also summons documents under either s 104 of the VCAT Act or any signed authority from an applicant.
3. There appears no basis to accept the submission that the s 78(2) notice given to Ms Caves was onerous and oppressive in demanding that she provide 401 pages to enable TAC to undertake its statutory function.
4. It was submitted for Ms Caves that requiring an applicant to provide medical records runs the risk that the applicant has not been provided with full copies, a risk that is minimised if TAC summonses the record. However, it was likely in this case Ms Caves' lawyers had a full copy of the records.
5. Concerning this proceeding, the submission appears hypothetical. Generally a medical practitioner will provide complete records if requested. Any such issue could be dealt with if it arose. Perhaps that would be by way of witness summons by TAC.
6. Ms Caves' lawyers criticised TAC's position in this proceeding with regard to the efficient running of proceedings with respect to legal costs, given the cost of TAC disputing the photocopy charge issue dwarfed the $101.45 in dispute. They also submitted TAC had potentially breached provisions of the Act concerning the Act's objectives and TAC's objectives and functions, TAC's obligations under the Civil Procedure Act 2010 and Model Litigant Guidelines.
7. I rejected those criticisms, accepting TAC's submission that in disputes such as this, it is entitled to maintain and defend its position when required. In times past, VCAT has criticised the TAC for spending very large amounts to avoid paying very small amounts, speaking of the "heights of financial absurdity", (see Theodoulis v Transport Accident Commission (General) [2005] VCAT 872). In more recent times, I am not aware of such criticism being made and have no reason to criticise TAC in this proceeding. The Civil Procedure Act 2010, while at times instructive at VCAT, does not apply to VCAT proceedings (see s 4(3)).
8. At the directions hearing, claim and counter claim, based on instructions, was made from the bar table as to whether TAC had previously paid such photocopying costs at the time documents were provided following a s 78(2) notice. Whatever the case was, TAC is entitled to exercise its statutory powers under s 78(2). If that entails a change of approach (on which I make no judgement), so be it.
9. All the above said, TAC is obliged by its obligations to people injured in transport accidents and its obligations as a model litigant to be reasonable in what it requires. There may be circumstances where TAC would agree to pay photocopy costs for the documents it requires in order to progress a proceeding. That is for TAC to decide.
10. TAC would not likely succeed in an application to VCAT to strike out or dismiss a proceeding under s 78(5) of the Act based on an applicant failing to comply with a s 78(2) notice, if it unreasonably required information.

Obligation of TAC to provide a statement of reasons under s 49 of the VCAT Act

1. The parties were in dispute about whether TAC should be required to provide a statement of reasons for its decisions under review before its review of those decisions, as required by s 78(1) of the Act was complete.

1. Section 49 of the VCAT Act requires TAC to provide its statement of reasons for the decisions under review and provide documents in its possession that it considers relevant to the review of the decision, within 28 days of receiving notice of an application for a VCAT review.
2. The requirement is routinely deferred.
3. Parliament's intention in ss 78 and 80 is to reduce costs incurred at VCAT, including the costs of compliance with s 49 of the VCAT Act.
4. There is little point in TAC complying with s 49 until after, under ss 78 and 80 of the Act it has either affirmed or changed its decision. If TAC changes its decision, the dispute between the parties may end and the s 49 statement will never be required or produced.
5. While it is rarely necessary in proceedings to explicitly address the issue, here I have deferred the obligation under section 49 to provide a statement until after the provisions of ss 78 and 80 of the Act are satisfied.
6. After I reserved my decision in these proceedings, VCAT received a notice under s 80(2) of the Act dated 13 April 2015 from TAC concerning proceeding Z630/2014. It had affirmed its 18 June 2014 decision determining Ms Caves' whole person impairment at 25%.
7. I leave it to the parties to address whether VCAT orders need be sought concerning the provision of a s 49 statement.

[1] As agreed between TAC, the Law Institute of Victoria and the Australian Lawyers Alliance on 1 March 2005 as amended from time to time. See s 78(5) of the Act.