VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
REVIEW AND REGULATION LIST	
vcat reference No. Z1147/2014	
CATCHWORDS	
Review and Regulation List – Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 78 – Dismissal of proceeding concerning application for review of two decisions of Transport Accident Commission where applicant has taken no substantive steps in the proceeding since it was started in December 2014.	

APPLICANT	Ms Karina Arden	
RESPONDENT	Transport Accident Commission	
WHERE HELD	Melbourne	
BEFORE	R Tang AM, Senior Member	
HEARING TYPE	Dismissal/Strike Out Hearing	
DATE OF HEARING	10 April 2025 	
DATE OF ORDERS 	10 April 2025	
DATE OF WRITTEN REASONS	15 April 2025	
CITATION	Arden v Transport Accident Commission (Review and Regulation) [2025] VCAT 339	

Orders
1	Under s 78(2) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the proceeding is dismissed.
2	No order as to costs.

R Tang, AM
Senior Member			

APPEARANCES:		
For applicant	Ms M Knapic, solicitor	
For respondent	Ms E Jobling, solicitor	

Reasons
1	By application made on 3 March 2025, the Transport Accident Commission (‘TAC’) seeks an order, under section 78(2) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’), dismissing a proceeding brought by Ms Karina Arden for review of two decisions of the TAC ‘due to the previous and ongoing conduct of [Ms Arden] causing unnecessary disadvantage to the respondent’.
Background
2	The TAC provided a ‘Chronology of Events’ as an attachment to the Commission’s Outline of Submissions dated 4 March 2025 (‘ROS’) (the accuracy of which is not disputed).  
3	The following events took place between early 2012 and late 2024:
•	In February 2012, Ms Arden was injured in a transport accident and lodged a claim for compensation with the TAC.
•	In December 2013, the TAC denied liability for any loss of earning capacity and denied any further funding for a gym and swim program (‘2013 Decisions’).  The TAC’s decision was based on an independent medico-legal examination report prepared by an occupational physician who considered that the injuries sustained by Ms Arden had resolved and she had the capacity to return to suitable employment.
•	In December 2014, Ms Arden’s solicitors (Maurice Blackburn) lodged an application for review with the Tribunal seeking review of the 2013 Decisions (‘Application’).
•	In October 2016, a ‘pre-issue conference’ was held between the parties in accordance with the TAC’s ‘No-Fault Dispute Resolution Protocols’ (‘Protocols’), which apply when an applicant is legally represented.  While a settlement offer was made by the TAC, Maurice Blackburn sought, but were unable to obtain, instructions from Ms Arden in relation to the settlement offer (between October 2016 and March 2018).
•	In March 2018, the TAC affirmed the 2013 Decisions in accordance with the Protocols.
•	In July 2018, with the consent of the parties, the Tribunal stayed the proceeding.
•	Between November 2018 and February 2021, the TAC corresponded with Maurice Blackburn to confirm whether they had instructions from Ms Arden in relation to the Application.
•	In February 2021, the TAC made an offer to resolve the Application on a ‘withdraw and bear own costs’ basis, but again Maurice Blackburn were unable to obtain instructions from Ms Arden.
•	Between October 2021 and February 2022, Maurice Blackburn sent the TAC numerous invoice for clinical pilates and indicated that they were awaiting further records from Ms Arden in support of the Application.
•	In March 2023 and April 2023, the parties engaged in further ‘informal conferences’, with Maurice Blackburn advising that they were unable to obtain instructions from Ms Arden.
•	In May 2023, the TAC made a further settlement offer.  Between May 2023 and August 2024, Maurice Blackburn attempted to obtain instructions from Ms Arden regarding the settlement but were unable to do so. 
•	The matter was then set down for a directions hearing in November 2024.  I conducted that directions hearing and made orders listing an administrative mention on 17 January 2025 by which date the parties were required to advise if the matter had been resolved or, if Maurice Blackburn were unable to obtain instruction from their client, the firm was required to advise the Tribunal and the TAC accordingly.  The orders that were made included the following warning:
Having regard to the period of time that this application has been on foot, the applicant is put on notice that, if she fails to provide instructions to her legal representatives, the Tribunal may proceed to strike out the proceeding under s 76 of the [VCAT Act] for want of prosecution (and without further notice or recourse to the applicant).
4	The following events took place in the lead up to, and following, the administrative mention:
•	On 15 January 2025, Ms Arden attended the Tribunal and provided a letter of three pages seeking ‘assistance in the form of documentation and in person attendance for discussion and clarification, regarding one or more and or a range of alleged matters’ (‘15 January Letter’).
•	On 16 January 2025, Maurice Blackburn advised that they had been contacted by Ms Arden but that she was ‘unable [to] provide instructions in relation to progressing this matter … until the issues raised in her [15 January Letter, which Ms Arden had not sent to them or the TAC, were] addressed by the Tribunal’.
•	On 20 January 2025, I made orders listing a further directions hearing in February 2025 for the purpose of providing directions and making orders for the future conduct of the proceeding (including any further adjournment sought by Ms Arden) as necessary and appropriate.  I also directed the principal registrar to contact Ms Arden by telephone to clarify that she continued to be represented by Maurice Blackburn and, if so, to communicate with the Tribunal through that firm.  Further, the principal registrar was directed to discuss with Ms Arden how she could obtain an electronic copy of the Tribunal file and to identify any reasonable adjustments she might require for the further directions hearing.
5	Following the orders made at the directions hearing: 
•	A team leader from the Tribunal’s registry contacted Ms Arden to discuss the matters raised.
•	Ms Arden again attended the Tribunal and delivered a letter dated 29 January 2025 (’29 January Letter’) indicating that she had a range of ‘alleged concerns, which … would best be … discussed in person with the VCAT President’ and, again, requesting ‘assistance in the form of … documentation and in person attendance for clarification … regarding contradictions and or … wider concerns’.
6	On 31 January 2025, I made further orders in chambers noting the receipt of the 29 January Letter, indicating that it ‘has not otherwise clarified the matters set out in the Tribunal’s previous orders’ and confirming the further directions hearing would proceed as listed.
7	On 26 February 2025, the further directions hearing was held.  
8	Ms Arden did not attend the further directions hearing but was represented by Ms Knapic from Maurice Blackburn.  Ms Knapic indicated she had been instructed by Ms Arden that she was unable to progress the application unless the TAC and the Tribunal held ‘appropriate authorisations’ and sought an adjournment for an indefinite period.  Some further explanation was provided by Ms Knapic in closed session.
9	Ms Jobling (the solicitor representing the TAC) responded, opposing an adjournment and suggesting that, while it was ‘difficult to provide any meaningful response’, nothing that had been raised in open or closed session identified any requirement for the TAC or the Tribunal to hold any clearances.  She said she had been instructed to seek summary dismissal of the proceeding under section 78 of the VCAT Act.
10	At the end of the further directions hearing, I gave reasons for refusing or dismissing the application for a further adjournment of the proceeding and listed the matter for a dismissal/strike out hearing on 10 April 2025.
TAC’s submissions on summary dismissal
11	As already noted, the TAC’s submissions in support of its application for summary dismissal were filed on 4 March 2025.  In summary, the TAC submits that Ms Arden’s ‘conduct to date in the present proceeding has caused unnecessary disadvantage to the [TAC] in accordance with s 78 of the VCAT Act [and] … it is therefore appropriate that the matter be dismissed accordingly’.
12	In terms of Ms Arden’s conduct, the TAC submits that she has ‘repeatedly failed to progress her application via both the [Protocol and the Application] over a prolonged period of time’.  The TAC suggests that it is ‘entitled to expect that an applicant who lodges an application for review … will, within a reasonable timeframe, engage with the [TAC] and the Tribunal in order to progress their application’, including to ‘articulate the grounds on which their application is made and provide evidence to support their position’.
13	The TAC also contends that it is entitled to expect that an applicant that is represented ‘will provide instructions to their legal representatives so as to allow the application to progress in a timely manner’ but, in this case, all attempts to do so, had ‘not resulted in any material change to the parties’ respective positions as they were on the date on which this application was lodged’.
14	While the TAC acknowledges:
•	it has been suggested that ‘[Ms Arden’s] personal circumstances have, at various times, made it difficult for her to engage with the present proceeding’, it contends that it is ‘inappropriate for an application to be stayed indefinitely on these grounds’; and
•	some information has been provided as to her ‘privately funded’ pilates treatment since the 2013 Decisions, the TAC observes there is no ‘further medical evidence demonstrating that there was/is a clinical indication (relevant to the subject transport accident) for these services to continue’ or ‘any additional evidence that would allow it to reconsider the decision in respect of [loss of earning capacity] eligibility’ beyond a statement made by Ms Arden in May 2015.  It is suggested that the medical and other evidence available at the time the Application was lodged is ‘now stale and unlikely to reflect [Ms Arden’s] current clinical condition’.
15	The TAC submits that Ms Arden has not established the relevance of the matters she raised in the submissions made by Ms Knapic on her behalf at the directions hearing on 26 February 2025 (see [8]) and that those submissions ‘clearly demonstrate that at this time, [Ms Arden] is unwilling to engage in the Tribunals’ processes so as to progress the present dispute application towards resolution’.  As Ms Jobling put it, in her oral submissions, the situation is at an ‘impasse’.
16	Ms Jobling submitted that Ms Arden’s conduct, in seeking repeated adjournments and extensions of time, without providing any evidence and without re-engaging to progress the proceeding, disadvantages the TAC.
17	While Ms Jobling acknowledged that dismissing the proceeding would prejudice Ms Arden by terminating her right to seek review, she noted the issues in dispute were ‘narrow in scope’ and it was not necessarily the case that Ms Arden had any ‘current entitlement’ to benefits in relation to her transport accident.
18	The TAC contends that any further adjournment is inappropriate as Ms Arden ‘has already been granted ample time within which to engage in the Application for Review process and has failed to do so’.  Further, in response to a question I raised, Ms Jobling indicated that she was unable to identify any other alternative remedies that are appropriate.
Ms Arden’s submissions on summary dismissal
19	The Applicant’s Outline of Submissions dated 28 March 2025 (‘AOS’) records Ms Arden’s instructions:
•	opposing the dismissal of the proceeding ‘on the basis she is not in a position to provide instructions to progress the application’ given her ‘exceptional circumstances’ and ‘varied but binding obligations’ which require parties who access her information or make decisions in relation to her entitlements, ‘to have obtained specific clearances or authorisations’;
•	that she is ‘unable to provide documentation to verify her exceptional circumstances’;
•	that she seeks ‘an adjournment or extension of time … to allow her to access the documentation and receive the assistance … she has requested from various organisations’, although Ms Knapic was unable to provide further information as to the documentation sought, the organisations that Ms Arden has approached for assistance (beyond VCAT and the TAC) and how long this would take.
20	At the hearing, Ms Knapic indicated that she had received ‘updated instructions’ from Ms Arden identifying ‘wider community events specifically relating to the proceeding’, which cause it to fall ‘outside state jurisdiction’.  However, despite the suggestion there may be a jurisdictional issue, Ms Knapic indicated that Ms Arden had instructed she did not wish to withdraw her Application to pursue the matter in another forum.
Analysis
Section 78 of the VCAT Act
21	The power to dismiss or strike out a proceeding under section 78 of the VCAT ‘applies’ if the Tribunal ‘believes that a party to a proceeding is conducting the proceeding in a way that unnecessarily disadvantages another party’ and sets out examples of conduct which might do so, including a failure to comply with the Tribunal’s orders or directions without reasonable excuse or causing an adjournment.
22	Where the section applies, the Tribunal ‘may’ order that the proceeding be dismissed or struck out if it is an applicant that is causing the disadvantage.  The use of the word ‘may’ connotes a discretion.  However, section 78 does not itself set out any particular matters the Tribunal ought consider in determining whether to exercise that discretion.
23	The decision of Ashley J in Bell Corp Victoria Pty Ltd v Stephenson (‘Bell Corp’) has been described by the Victorian Court of Appeal as the ‘leading case concerning s 78’.  His Honour identified the following matters which ‘must be considered in the exercise of the discretion under sub-s (2)’, namely:
•	The ‘subject matter of the belief formed by the Tribunal’ under section 78(1).
•	The ‘nature of the power conferred’ by section 78(2) in the ‘context of the armoury of power conferred upon the Tribunal’ (under sections 75-77), including that the ‘remedy should be of last resort and not first resort’.
•	That the making of an order under section 78(2) ‘will deprive a party of an opportunity to be heard upon the merits’.
•	The power to make costs orders, including in circumstances where the proceeding is not struck out or dismissed: section 78(2)(c).
•	In a particular case, the Tribunal may ‘consider some other matter to be relevant’.
24	In ACN 115 918 959 Pty Ltd v Moulieris, then Senior Member Kirton pithily summarised the requirements established by Ashley J in the following terms:
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
25	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.
26	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.
27	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.  
28	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.
29	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.
30	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.
31	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.
Considerations for exercise of discretion
32	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.
33	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’.
34	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.  
35	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’.  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.
36	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.
Conclusion
37	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).
38	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.  

R Tang, AM
Senior Member