1. On 17 May 2012, an authorised officer of the Brimbank City Council declared a dog owned by the applicant known as Mylo to be a restricted breed dog. On 12 June 2012, the applicant applied to the Tribunal for a review of the declaration. Following a number of hearings both in the Supreme Court and the Tribunal,[1] the application for review was remitted by Rush J to the Tribunal for hearing by a differently constituted Tribunal.
2. On 31 January 2014, the Minister for Food Security and Agriculture ('the Minister') made a new standard pursuant to s 3(4) of the Domestic Animals Act 1994 (Vic) ('the Domestic Animals Act'). The new standard was published in the Government Gazette on the same day. Following the hearing of submissions by the parties and the Minister, I published a decision on 26 March 2014 to the effect that the new standard would apply to the proceeding.[2]
3. The application for review was first listed for final hearing over 3 days commencing on 12 May 2014. Shortly prior to the commencement, the solicitor for the applicant advised that she would seek an adjournment owed to a mishap suffered to her counsel retained for the hearing. When the adjournment application came on for hearing on 12 May 2014, it emerged that the witnesses for the applicant had already been advised in advance of the hearing that they were no longer required. The result was that they were unavailable for the hearing. The adjournment was a fait accompli. In the circumstances, orders were made requiring all witnesses to attend a conclave, and for the final hearing to be conducted on 5 and 6 June 2014.[3]
4. The conclave was conducted on 23 May 2014 resulting in the preparation of a joint report and some narrowing of the issues in dispute.
5. On 2 June 2014, the solicitor for the applicant sent a letter to the Minister requesting that the Governor in Council publish an order in the Government Gazette pursuant to s 5(1)(a) of the Domestic Animals Act exempting Mylo from the operation of various provisions of that Act.
6. On 4 June 2014, the Deputy General Counsel of the Department of Environment and Primary Industries wrote to the solicitors for the applicant stating that the proposed exemption order was inappropriate given that the matter concerning Mylo was currently before the Tribunal. He said that the legal process should be allowed to run its course.
7. On 5 June 2014, the application again came on for final hearing. After a number of preliminary submissions, counsel for the applicant then appearing advised that she was instructed to withdraw the application for review. The reason for the withdrawal as stated by counsel was because the applicant had seen fit to exercise her right to go to the Governor in Council under s 5 of the Domestic Animals Act. The applicant was said to feel strongly about this. The proceeding was then stood down to allow counsel, instructing solicitor and the applicant a further opportunity to fully consider the wisdom of the proposed course of action. The application for leave to withdraw was a significant application not least having regard to the extensive history of the litigation. When the Tribunal resumed, counsel again advised the Tribunal that she remained instructed to withdraw the application filed on 12 June 2012. Accordingly, leave was granted, and the application was declared withdrawn.[4]
8. Seven days later the applicant had a change of heart, and entirely reversed her position. On 12 June 2014, Ms Tuziak wrote to the Tribunal,[5] and the solicitors for the Council, requesting that the application for review of the restricted breed declaration be reinstated.
9. The Tribunal has considered on many occasions the status of a proceeding following withdrawal under s 74 of the VCAT Act. In Kataria v Gold Sea Pty Ltd,[6] Deputy President Macnamara (as his Honour then was) held that the Tribunal is functus officio and that the proceeding cannot be reinstated. This decision has been followed in numerous subsequent cases many of which are cited in Pizer's Annotated VCAT Act.[7] It is not necessary for me to consider the legal basis underlying Deputy President Macnamara's reasoning, as the applicant accepts in her written submission that the Tribunal is functus officio in VCAT proceeding G508/2012 and that this proceeding cannot be reinstated.
10. The applicant now seeks leave from the Tribunal under s 74(2)(d) of the VCAT Act to make a further application in relation to the decision made on 17 May 2012 to declare Mylo to be a restricted breed dog. She seeks an extension of time under s 126(1) of the VCAT Act of the 28 day time limit imposed by s 98(2A) of the Domestic Animals Act.
11. Section 126(3) of the VCAT Act provides that the Tribunal can extend time even if the time or period for compliance has expired before the application for extension had been made. Section 126(4) relevantly states that the Tribunal may not extend time if to do so would cause prejudice or detriment to any party that cannot be remedied by an appropriate order for costs or damages. For its part, the Council contends that what the applicant seeks to do is an abuse of process, particularly having regard to what the Council says was a deliberate and tactical withdrawal. As the applicant's witnesses were not present before the Tribunal on 5 June 2014, the Council says that she had no choice but to withdraw. Mr Appudurai submitted that no explanation has been given to the Tribunal for the applicant's failure on 5 June 2014 to have witnesses present.

1. There are a number of previous cases where the exercise of the discretions in issue in this proceeding have been considered. The applicant relied on Hoskin v Department of Education[8] where Senior Member Steele held that unless the reason for seeking leave under s 74(2)(d) is clearly frivolous or vexatious the Tribunal's discretion should be exercised in favour of allowing the application to proceed. Likewise it was held in Pole v Stonnington CC[9] that the overriding purpose of the provision is to enable justice to be done.
2. The relevant considerations applying to applications for extensions of time for the issue of a proceeding have been discussed in many cases in the courts and the Tribunal. The considerations include whether the applicant has sufficient merits to justify the extension of time, whether the respondent has been prejudiced by the delay, whether there is an acceptable explanation for the delay and whether it is fair and equitable in the circumstances to extend time.

1. In substance, the position is that the applicant on 5 June 2014 made a decision with the benefit of advice from her counsel and solicitor to withdraw her application for review to the Tribunal. I am not satisfied that the applicant was engaged in an abuse of process, although it is clear that she has failed to have witnesses present to attend the Tribunal on at least one previous occasion. Turning to the relevant considerations, I am satisfied that the applicant has sufficient merits to justify the grant of leave to proceed and an extension of time. Two expert reports have been filed on her behalf. If the content of these reports is ultimately accepted by the Tribunal, the declaration made by the authorised officer of the Council on 17 May 2012 will be overturned. I am satisfied that there is a serious issue to be tried by the Tribunal, and that the applicant's case is not without merit. The principal prejudice suffered by the Council is the incurrence of additional costs. In relation to the additional costs that have been incurred, Mr Appudurai advised that his instructions were to seek costs from the legal advisers previously retained by the applicant. The Council does not seek costs from the applicant.
2. The next consideration is whether there has been an acceptable explanation for any delays that have occurred and for the need to make the applications that are now made. The applicant's decision to withdraw may have been the result of poor legal advice as to the significance of consequence of what she was doing, or it may have been as the Council submits a tactical decision. It may also have been a sincerely held, but misguided belief that withdrawal of the application before the Tribunal was the best way to pursue her application to the Governor in Council. None of these explanations are entirely satisfactory, but I am aware that explanations for ill advised decisions rarely are satisfactory.

1. I am of the view that the administration of justice is best served by the resolution of the substantive dispute by the Tribunal as soon as this can be achieved. The Supreme Court remitted the former proceeding to the Tribunal to achieve this object. In all of the circumstances, it is fair and equitable that leave be granted under s 74(2)(d) of the VCAT Act, and that the time for making a new application for review of the declaration concerning Mylo be extended under s 126(1) of the VCAT Act. The orders will be on the basis that the new proceeding will go to final hearing as soon as that can be arranged.

[1] Gray v Brimbank CC [2013] VSC 281; Gray v Brimbank CC [2014] VSC 13.

[2] Gray v Brimbank CC [2014] VCAT 258.

[3] Gray v Brimbank CC [2014] VCAT 509.

[4] Gray v Brimbank CC [2014] VCAT 631.

[5] The email and attached letter received by the Tribunal from Ms Tuziak was from a personal email address.

[6] [2003] VCAT 506.

[8] [2005] VCAT 2921.

[9] [1999] VCAT 13.