1. The Applicant agrees to allow and provides consent for the occupational therapist, engaged pursuant to order 1, to consult with and receive documents from appropriate staff at the Department of Health and Human Services.

1. The Applicant agrees to co-operate with the occupational therapist engaged pursuant to order 1, the appropriate staff referred to in order 4 and any contractors, and to allow all those persons to have access to the Roxburgh Park property following at least 48 hours notice.

1. The Applicant agrees to allow and provides consent for the occupational therapist, engaged pursuant to order 1, to consult with and receive documents from the Applicant's treating medical practitioners, but only as so far as the documents relate to the Applicant's physical disabilities and only as so far as the documents relate to the modifications required for her home to overcome the effect of her disabilities.

6A. For the purposes of order 6, the Applicant will inform the occupational therapist of the name and contact details of her treating medical practitioner.

1. The Applicant consents to and provides authority for the persons mentioned in order 6 above to discuss with and/or release to the occupational therapist any medical information or records requested by the occupational therapist and the Applicant will provide any written or verbal consent necessary to allow this to occur, but such medical information, records and consent shall be limited to matters relating to the Applicant's physical disabilities, and only in so far as they relate to the required modifications to the property at Roxburgh Park.

1. On receipt of the report provided by the occupational therapist pursuant to order 2, the Respondent will assess and approve any recommendations in the report in accordance with the Modified Housing Standards and will action any approved modifications within 21 days of approval.

1. The proceeding (H51/2013) is struck out, with a right on the part of the Applicant to apply to reinstatement the proceedings if the works are not actioned within the time stipulated in the order.
2. There was a hearing of the applicant's reinstatement application on 17 May 2016 and the applicant provided an affidavit of the same date in which she said: "the purpose of the consent orders I entered into 21 May 2015 was to effect a practical change in my accommodation".
3. I made orders to allow the parties time to file submissions - the applicant by 24 May 2016 and the respondent by 31 May 2016. The submissions arrived. Then, on 25 May 2016 the Tribunal received a further submission - an undated letter direct from the applicant herself, apparently not endorsed by her solicitor. I made orders directing a copy of the letter to be sent to the representatives of both parties and allowing the parties to make further submissions about this letter. Both the applicant and the respondent did so.

1. The letter received 25 May 2016[1] from Ms Fishlock said:

On the 21 May 2015. Dept of Housing had VCAT Discrimination inforce an Order that Victorian Solicitor had Drawn up. The order was not signed by me it was signed by my husband Peter Fishlock We were of the understanding From Slater + Gordon Q.C. that Mr Fishlock had Power of Attorney. He did But it, was for urgent medical only. And exspired 8 years ago. After Medical Treatment. I did try to exsplain this at VCAT. But no one took any notice of me. Mr Fishlock is not responsible for signing VCAT he had a Bad Stroke. With Brain Damage. He is Still under Stroke Clinic RMH D.H.S. knew he had a Bad Stroke and he had Brain Damage. He can't Count of understand Context of money. writing. remembering and this is all in medical evidence. I refused to Sign Order As I knew I would never get Help to live an independent, quality of life. with my home. or any Think From D.H.S. When thay took away my right to Goverment Service. that was it. Mr Fishlock received letter from B/meadow Housing Manager. and Sent him Papers to put me into Goverment Aged Care nursing Home. At 58. Think it's time to Give up our home and Become homeless again. Please Dont take away my life with my husband. My husband had no legal Right to sign any Court or other paperwork on My Behalf. I can not understand how VCAT excepted him to sign. This is my 3 letter I have written to VCAT H.R.C. about this matter. But never get an answer. And no one in VCAT care's. This is my life. why is D.H.S. trying to Destroy it.

The Order of VCAT should be invaled as I refused to Sign and Mr Fishlock Sign it. Please don't let Housing false me into Taxpayer aged Care Home.

1. Neither the applicant's affidavit of 17 May 2016 nor the submissions from her solicitor dated 23 May 2016 argued that the consent orders were invalid. After my orders that the parties could make further submissions about the letter received on 25 May 2016, Ms Fishlock's solicitors forwarded a further statement from Ms Fishlock, saying the following:
   • She had sent the letter before the hearing on 17 May 2016 and before she swore her affidavit of that date
   • Her solicitor had presented the signed consent 'order' at the hearing on the understanding that Mr Fishlock had the authority to sign such documents for Ms Fishlock
   • She had checked the power of attorney and it was clear that Mr Fishlock did not sign as her attorney
2. The applicant contends that the Tribunal's orders of 21 May 2015 are invalid because Mr Fishlock did not have her power of attorney to sign the proposed consent orders on her behalf. In my view, I have no power to declare the orders of 21 May 2015 to be invalid. The Tribunal made a final order on 21 May 2015, subject to the provisions in that order for seeking reinstatement. By making a final order on 21 May 2015, the Tribunal fulfilled its function in this proceeding. Except for the possibility of reinstatement set out in order 9 of that day (or perhaps if all parties consented to an order), VCAT has no power to make further substantive orders in this proceeding.
3. In the Courts, a consent judgement giving effect to a settlement agreement: "may only be set aside on grounds which would justify setting aside the contractual agreement upon which the settlement or compromise was based."[2]That can be done by bringing a fresh proceeding, or, in the superior courts, in the same proceeding[3].
4. The parties' submissions did not address this issue, but I consider VCAT does not have power to set aside a final order for invalidity in the proceeding in which that order was made. I am not aware that VCAT has ever considered it has inherent jurisdiction to set aside its own orders in separate proceedings either. In any case, I am not persuaded that anything the Applicant has said would justify setting aside the contractual agreement upon which the orders of 21 May 2015 were based.
5. Ms Rosemary Robins, solicitor, who acts for the Respondent, provided an affidavit dated 11 May 2016. She said:
   • Before the hearing commenced on 21 May 2015, the parties had discussions and agreed to proposed consent orders.
   • In the discussions, the applicant was represented by her solicitor Mr Dino De Marchi
   • The proposed consent orders were made with the consent of the parties
6. The Respondent's further submissions (dated 15 June 2016) which were made after the registry sent the Respondent a copy of Ms Fishlock's letter, said that the applicant's consent to the orders was confirmed orally by the applicant's solicitor from the bar table and that the applicant was present in the hearing room when this occurred. While that is not sworn evidence, I have no reason to doubt this statement and in any case I note that the orders of 21 May 2015 indicate on their face that the applicant was represented by Mr De Marchi. Mr De Marchi has not sought to give any further evidence on this issue himself. In those circumstances I can only conclude that he did confirm that the applicant consented to the orders.
7. Ms Fishlock relies on her contention that her husband did not have a power of attorney. His signature on the proposed consent orders is accompanied by the words "power of attorney". Ms Fishlock's further submission of 30 June 2016 was accompanied by a copy of an Enduring Power of Attorney (Medical Treatment) dated in 2002 appointing Peter Fishlock as her agent under the Medical Treatment Act 1988. Ms Fishlock's further submission implies that her husband had no other power of attorney and I have no reason to doubt that. However, the absence of a power of attorney is not material.
8. Ms Fishlock was legally represented at and before the hearing of 21 May 2015 when the proposed consent orders were handed up to the Tribunal. Her solicitor indicated she had consented. Ms Fishlock was present when that occurred. Her husband signed the draft consent orders and she knew at the time that he had done so. While she now says she refused to sign, there is no evidence that she made any protest at the time. Since then, both parties have acted in reliance on the consent orders made by the Tribunal.
9. In all those circumstances, in my view, the fact that some parties thought Mr Fishlock had a power of attorney is not something which could undermine the consent given by the applicant's solicitor, by her behaviour at that hearing and indicated by her subsequent behaviour. Whether or not Mr Fishlock had the applicant's power of attorney, she allowed him to act as her agent in signing the proposed orders. Ms Fishlock's presence and non-protest when these events occurred indicate her consent to the orders. Further, After 21 May 2015, both parties acted in accord with the orders of 21 May 2015. For example, the respondent wrote to the applicant on 26 August 2015 confirming that it had engaged an occupational therapist to prepare a report in accord with the orders. [4]On 8 September 2015, the occupational therapist, Ms Porter, visited Ms Fishlock, who consented to Ms Porter reading her housing file records for the purpose of the assessment[5].
10. The applicant wrote to the tribunal herself (not through her solicitor) a letter dated 13 October 2015 complaining that the respondent had not complied with the orders of 21 May 2015. That letter did not mention that the applicant had not consented to the orders, nor that she thought they were invalid. In this regard I note that the applicant said in her submission of 30 June 2016 that she had written to VCAT about "Mr Fishlock's lack of authority" on 24 June 2015, 23 November 2015 and 10 December 2015, with no response from VCAT. I have searched the file in this proceeding and can find no reference to those letters.
11. Further, the reinstatement application itself and much said in the applicant's submissions supporting the application seem to accept that the orders of 21 May 2015 were made by consent. In her affidavit of 17 May 2016, Ms Fishlock said "the purpose of the consent orders I entered into 21 May 2015 was to effect a practical change in my accommodation".[6] In paragraph 4 of that affidavit, she complains that the Respondent "is unwilling to perform urgently needed ...modifications" and says that "this frustrates the very purpose of the orders made by this Tribunal". These submissions in my view indicate that the applicant accepts the validity of the orders.
12. As I have said, in my view VCAT cannot set aside its own orders because of a doubt about the validity of the agreement which led to them. Even if I am wrong about that, the evidence given does not lead to any conclusion which undermines the agreement for orders to be made by consent.

1. Turning now to the rest of the application for reinstatement, the law about reinstatement of a matter which has been struck out by consent is straightforward. The relevant statutory provision is in section 93 of the VCAT act 1998 which relevantly says:
   • (1) If the parties agree to settle a proceeding or any part of it at any time, the Tribunal may make any orders necessary to give effect to the settlement.
2. That is the section which empowered the Tribunal to make the orders of 21 May 2015 and would empower any orders made in this reinstatement application. The principles for dealing with an application for reinstatement are conveniently summarised in a decision of the Tribunal. In Dolphin v Hart Constructions, the Tribunal said[7]:

Generally where proceedings have been struck out because a matter has been settled in accordance with terms of settlement, they can only be reinstated if the agreement contained in those terms of settlement has not been complied with. Where this is alleged the Tribunal must first determine whether there has been a non-compliance. If so, the aggrieved party will have its remedies, either to enforce the terms of settlement (whether in the proceeding itself or by separate action) or to treat the terms of settlement as having been repudiated, accept the repudiation and treat the agreement as being an end, reinstate the proceedings and then prosecute the original cause of action. In either case, in order to reinstate the proceeding, it has to be demonstrated that there has been a breach of the settlement agreement.

1. In the present case, the settlement agreement[8] is embodied word for word in the Tribunal's orders of 21 May 2015. So the question here is whether by those orders the proceeding should now be reinstated.

1. In the written submissions made for the applicant[9], four reasons were suggested in support of the contention that the respondent has breached the orders:

1. That the respondent failed to comply with the written terms of the orders, specifically order 1; 2. That the respondent failed to act in the spirit of the orders;

1. That the respondent relied on an incomplete occupational therapist report and did not engage in discussion as advised;

1. That the respondent's behaviour is inconsistent with its obligation to be a model litigant, specifically to resolve matters by agreement where possible.
2. In addition, the applicant submitted that she remains the victim of indirect discrimination.

1. The applicant argued that the respondent failed to comply with order 1 of the orders of 21 May 2015. Order 1(b) required the respondent to engage an occupational therapist within 21 days of reaching agreement with the applicant about who should be the occupational therapist.
2. The applicant conceded that the respondent wrote to her on 30 June 2015 seeking her preference about occupational therapists[10] and that she responded "on 30 July 2015" [11] indicating that she would accept either of the proposed persons, one of whom was Ms Porter. Then, the applicant said, Ms Porter first met with Mr Bentley and Mr Lokman of the Office of Housing on 25 August 2015, according to Ms Porter's report[12]. The applicant submitted that this indicated Ms Porter had not been engaged within 21 days of the applicant's agreement, as she had agreed on 30 July 2015 and 21 days after that would have been 20 August 2015.
3. I was not satisfied that the respondent had breached order 1b. It is true that the respondent produced no documents to indicate that it had engaged Ms Porter earlier than 25 August 2015. However, as submitted by the respondent, it had offered Ms Porter as an option in the letter of 30 June 2015 to the applicant. That meant that the respondent must have asked about Ms Porter's availability to prepare the report and taken steps to engage her, subject to receiving a reply from the applicant about her preference.
4. The respondent's position was that the meeting of 25 August 2015 was arranged to accommodate the availability of people attending the meeting but that it had notified Ms Porter that she was engaged shortly after receiving the applicant's letter of 30 July 2015.
5. While the respondent produced no document indicating the exact time of the engagement, neither did the applicant prove that her response of 30 July 2015 was received by the respondent on that day. Perhaps it was a letter which arrived a few days later. In any case, as the respondent submitted, putting the applicant's case at its highest, the respondent was at most 5 days late in engaging Ms Porter. Even if this was technically non-compliance with the Tribunal's order (which has not been proved), it is not sufficient to justify reinstatement of the proceeding. The orders of 21 May 2015 state, at order 9, that the applicant may apply for reinstatement "if the works are not actioned within the time stipulated in the order". A short delay in engaging the occupational therapist, if there was such a delay, is not a failure to action works, in my view.
   1. Even if a mere breach of the orders by a short delay could be seen as a grounds for reinstatement, the delay was not in my view substantial enough to justify reinstatement of the proceeding, when the parties continued after this point to act in accord with the orders.

Whether the respondent complied with the spirit of the orders

1. Secondly, the applicant submitted that if the respondent has complied with the orders of 21 May 2015 it has only done so "in a literal sense divorced from the intended meaning between the parties". The submissions argued that order 2 shows the purpose of the occupational therapist's attendance was to produce a report for the purpose of disability modifications. The applicant submitted that the parties did not expect that Ms Porter would provide no explicit recommendations and instead propose only a transfer to different housing.
2. The respondent disagreed with that submission, saying that the orders made clear that the report might or might not lead to modifications to the property. I agree with the respondent's interpretation. Here, it is important to look at the words of the consent orders. Order 8 says:

"On receipt of the report provided by the Occupational Therapist pursuant to Order 2, the Respondent will assess and approve any recommendations in the report in accordance with the Modified Housing Standards and will action any approved modifications within 21 days of approval"

1. If the orders had said "the Respondent will assess the recommendations ... and will action the approved modifications..." the applicant's argument might succeed, but the repeated use of the word "any" in relation to the modifications leaves open the possibility that no modifications will be recommended.
2. This is not mere semantics. Ms Porter's report explains why she considers that no modifications will meet the applicant's needs. I agree with the respondent's submission that the 'spirit' of the orders of 21 May 2016 was to put in place an objective means to assess the applicant's needs and whether any modifications could be made to her public housing property in accord with the Modified Housing Standards and that this process did occur.
3. The applicant submitted that since the right of reinstatement arose under order 9 thus: "if the works are not actioned within the time stipulated in the order", the reinstatement should be granted because no works had been actioned. I do not agree. Again, the plain meaning of the orders does not support this interpretation. The words "the works" in Order 9 can only logically refer to the words in Order 8 "will action any approved modifications within 21 days of approval", because that is the only point at which a time frame is stipulated. Accordingly, the applicant's second contention cannot succeed.

1. The applicant contended that Ms Porter's report was not complete, that she had encouraged the respondent to discuss interim modifications and it had not done so. Ms Porter's report did not recommend any modifications. It was 13 pages long. It set out how the assessment was undertaken, the background, an assessment of Ms Fishlock's needs, assessment of each room of her house in terms of whether it met her needs, a summary of findings and a final recommendation. Because the recommendations are central to the question of reinstatement, I set out the summary and recommendations from Ms Porter's report here in full.

In my opinion, this dwelling has not been designed for the use of a powered wheelchair, in mind. Mr and Mrs Fishlock will continue to experience difficulty mobilizing within their home if they remain living in the dwelling as it is now.

There are design and therefore construction issues, which cannot be resolved without substantial modification and rebuilding, to the existing layout. There have been several re-modifications occur since they moved into the property. It will be difficult to modify this property further, as it has not been inherently designed for powered wheelchair use. Placement of doorways, walls, windows all impact the suitability of furniture placement and circulation space, that impacts the ability for the Tenants to be independent within the dwelling.

It would be my recommendation to discuss the suitability of relocation to a dwelling designed for the purpose of a powered wheelchair from the outset. This would need to be constructed specifically in line with the most accessible features, as outlined in the Adaptable Housing Standard AS4299, level C. All details of circulation space, reach ability, transferring to toilet and bed; need to be considered further in a suitability designed dwelling. Additionally, all aspects of the design and finishes, would need to be reviewed by a suitably qualified Occupational Therapist, prior to progressing to construction. Author of this report can assist in this process upon request.

Given all the Tenancy issues that have occurred during the past several years, Mr and Mrs Fishlock are open to the option of relocating to another area, if that means they can live in a dwelling that is accessible for their needs.

If a purpose built dwelling cannot be identified, then further discussion will need to occur regarding modification of an existing accessible, 3 bedroom dwelling, that can be modified to suit full wheelchair access.

I appreciate this is a complex case and will require further discussion before a suitable recommendation can occur that will meet all needs. Please call me on my mobile: (Ms Porter's mobile number given) with further queries or to arrange a suitable review meeting time.

1. The applicant relied on the words "this is a complex case and will require further discussion before a suitable recommendation can occur that will meet all needs. Please call me on (her mobile phone number) with further queries or to arrange a suitable review meeting time" as indicating that interim modifications could have been recommended had the respondent pursued them. The applicant submitted that the failure to pursue interim modifications was a misconception about Ms Porter's report.
2. The respondent wrote to the applicant on 29 October 2015 indicating that it had accepted the recommendation to discuss relocation to more suitable accommodation. The applicant submitted that this letter showed the respondent had sought no further advice about what could be done to assist the applicant in the interim.
3. The respondent submitted that it had continued to be committed to ongoing maintenance and modifications at the applicant's property, citing as an example references in a letter to the applicant's solicitor on 23 November 2015 about modifications to the bathroom and carpet. The respondent submitted however that Ms Porter's report was complete in that she did not recommend modifications to make the house meet the applicant's needs, on the grounds that it could not be modified to meet them. I accept that is the correct way to read Ms Porter's report. The exercise of assessing the applicant's needs and recommending modifications in accord with the Modified Housing Standards was complete.
4. I note also that the letter of 23 November 2015[13]pursued the identification of interim modifications. For example, it said: "The department proposes that Diane Porter and the FSO conduct a joint inspection to identify any necessary changes to the current configuration of the vanity unit and rails near the toilet". Nothing about the respondent's continued attempts to modify the house indicated that the respondent had elected to treat those actions as 'works' described by the consent orders in this proceeding. For all these reasons, the applicant's contention that Ms Porter's report was incomplete does not succeed.
5. For completeness, I also note that the respondent wrote to the applicant on 29 October 2015 about placing her on a waiting list for the "supported housing segment" and this was accepted by her solicitor's letter of 5 November 2015, with an ensuing discussion of the effective date for the waiting list placement.

1. The applicant also contended that the respondent had fallen short of its obligation under the Victorian Model Litigant Guidelines[14]to be a model litigant. The guidelines relied upon were the obligations to "avoid and limit the scope of legal proceedings" by resolving them by agreement where possible and not to rely on technical arguments unless the State's interests would be prejudiced. It was said that taking an incomplete report to be a final one breached these guidelines. This was said to have cut off the avenue of further negotiations to modify the house. Relying on an incomplete report, the applicant said, was a "technical argument".
2. Further in relation to this contention, the applicant said that the respondent in failing to comply with the spirit of the consent orders had relied on a technical argument. I do not accept these contentions. The respondent did attempt to resolve the matter by agreement in consenting to the orders of 21 May 2015. There is nothing in the evidence to indicate that the respondent's consent was anything but a genuine attempt by the respondent to resolve the issues without further litigation.
3. In relation to the submission that the respondent was relying on mere technicalities, I consider that an argument is not "technical" merely because it turns on the careful interpretation of a written agreement or report. The respondent contends and I accept that it was always possible under the consent orders that Ms Porter would not recommend any modifications.
4. For these reasons, I do not find that the respondent failed in its obligation to be a model litigant. The applicant made no submissions about how such a failure would affect the Tribunal's power to reinstate a matter struck out by agreement, but in the event that issue does not arise.

1. The applicant repeated in the submissions about reinstatement that the respondent had discriminated indirectly against her. To the extent that this claim is about the same matters as were raised in her application and struck out by consent, the claim cannot be reinstated, for the reasons I have given. If any new unlawful discrimination is claimed, that could be the subject of a fresh application. No doubt any such application would be carefully examined by the respondent to see whether it is an attempt to re-litigate what was struck out by consent in this proceeding.
2. The resolution of this proceeding by the consent orders on 21 May 2015 does not of course release the respondent from its obligations to comply with the Equal Opportunity Act 2010 and the Charter of Human Rights and Responsibilities Act 2006. It merely prevents the applicant reinstating or re-litigating the application which was made in this proceeding.
3. On 20 July 2016, the Tribunal received a letter from the applicant's solicitor asking that the proceeding not be struck out because the respondent had given his client new information about her place on relevant waiting lists for the housing she seeks. He also said in the letter that his client had been told she had not proven her demonstrated need for disability modification to occur at her home. I make no comment about whether such a need has been shown. However, the application made in the letter of 20 July 2016 cannot succeed. The orders I make do not strike out the claim, rather they dismiss the application to reinstate the claim. It was struck out on 21 May 2015 and for the reasons I have given will not be reinstated.

1. The proceeding cannot be reinstated because it was struck out by the orders of 21 May 2015. Those orders specifically provided that the applicant could seek reinstatement on only one ground, namely, if "the works [described in the orders] are not actioned within the time stipulated in the order". That situation did not occur. No works were recommended and no time was stipulated. Accordingly, the application for reinstatement is dismissed.

[1] Handwritten letter, transcribed here as accurately as possible

[2] See Halsbury's Laws of Australia [325-6730]

[3] See Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13 at 30

[4] Letter of 26 August 2015, exhibit RAR3 to affidavit of Rosemary Robins

[6] Affidavit of Rozalyne Fishlock 17 May 2016 paragraph 3.

[7] [2007] VCAT 426 at paragraph 8

[8] See the copy of the agreement exhibit RAR1 to the affidavit of Rosemary Robbins

[9] Submissions dated 23 May 2016,affidavit of Ms Fishlock dated 17 May 2016, further submission dated 30 June 2016

[13] Exhibit RAR10 to the affidavit of Rosemary Robbins