Concrete Construction Systems Pty Ltd v Inglese

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2024 0061

CONCRETE CONSTRUCTION SYSTEMS PTY LTD (ACN 156 347 107)	Applicant
v
GIUSEPPE INGLESE	First Respondent
AND
GWYNNETH INGLESE	Second Respondent

---

JUDGES:	Walker, Lyons and Richards JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	16 June 2025
DATE OF JUDGMENT:	11 September 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 218
JUDGMENT APPEALED FROM:	[2024] VSC 266 (Harris J)

---

ADMINISTRATIVE LAW – Effect of order dismissing proceeding under s 78(2)(b)(i) of the Victorian Civil and Administrative Tribunal Act 1998 – Order sought by respondent/applicant by counterclaim in domestic building dispute – Conduct of applicant disadvantageous and prejudicial to respondent/applicant by counterclaim – Order found to have intended to dismiss both claim and counterclaim in proceeding – Victorian Civil and Administrative Tribunal Act 1998, ss 78(2)(b)(i), 120.

STATUTORY INTERPRETATION – Scope of power and meaning of ‘proceeding’ in s 78 of the Victorian Civil and Administrative Tribunal Act 1998 – Legislative intention to establish Tribunal as flexible, low-cost and informal forum to achieve just result in most efficient way – Purpose of provision to enable appropriate response to disadvantageous conduct by one party – Broad and flexible construction preferred – Victorian Civil and Administrative Tribunal Act 1998, s 78(2) – ACN 115 918 959 Pty Ltd (formerly known as Pearl Hill Pty Ltd) v Moulieris [2022] VSC 555; ACN 115 918 959 Pty Ltd (formerly known as Pearl Hill Pty Ltd) v Moulieris [2024] VSCA 71, considered.

ADMINISTRATIVE LAW – Whether appeal available from Tribunal reasons – No evidence of legislative intent to provide appeal from Tribunal’s reasons for order – No appeal lies from Tribunal’s reasons – Victorian Civil and Administrative Tribunal Act 1998, ss 117(6), 148(1) – Marke v Victoria Police [2021] VSC 483; Goodrich v Racing Victoria Racing Appeals and Disciplinary Board [2019] VSC 248; O’Bryan v Lindholm (2024) 74 VR 496, considered.

---

Counsel
Applicant:		Mr JR Gurr KC with Mr NA Andreou
Respondents:		Mr JA Tesarsch
Solicitors
Applicant:	Robert James Lawyers
Respondents:	Lovegrove & Cotton

WALKER JA
LYONS JA
RICHARDS JA:

In April 2015, Giuseppe and Gwynneth Inglese (the ‘Ingleses’) entered into a domestic building contract with Concrete Construction Systems Pty Ltd (‘Concrete’), to build 66 residential units on land owned by the Ingleses at 267–280 Maroondah Highway, Ringwood, Victoria. Although the works reached practical completion in October 2016, the parties were in dispute about the performance of the contract. Concrete sought payment for variation works, while the Ingleses claimed the cost of rectifying defects.
On 17 November 2017, Concrete filed a claim against the Ingleses in the Victorian Civil and Administrative Tribunal (‘Tribunal’), seeking payment for variations and other amounts it claimed to be owed under the contract. The Ingleses filed a defence and counterclaim on 30 April 2018, seeking liquidated damages for delays and damages for the cost of rectifying defects. Both the claim and the counterclaim were for about $2,200,000.
On 16 September 2020, the Tribunal made detailed procedural orders, including for lists of documents, further expert reports, witness statements, and a Tribunal book. The Tribunal listed the proceeding for a 25 day hearing commencing on 6 September 2021. Concrete did not file or serve a list of documents, witness statements, or a Tribunal book. In March 2021, its solicitors filed a notice of ceasing to act, and there were no further communications from Concrete for some months.
On 23 July 2021, the Ingleses applied to the Tribunal for orders under s 78 of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’), seeking that the proceeding be determined in their favour and for damages to be assessed (‘s 78 application’). While the s 78 application and the supporting affidavit were served on Concrete, it did not attend the hearing of the s 78 application on 9 August 2021. On that day, the Tribunal:
(a)ordered under s 78(2)(b)(i) of the VCAT Act that ‘the proceeding is determined in favour of the respondents with the quantum of the respondents’ counterclaim to be assessed’ (‘s 78 order’);
(b)vacated the hearing listed for 6 September 2021; and
(c)relisted the proceeding for a three day hearing commencing 27 September 2021 to assess the quantum of the counterclaim.
The s 78 order was emailed to the parties on 13 August 2021.
The quantum hearing proceeded on 27 and 30 September 2021. Concrete did not appear on the first day of the hearing. On the second day, counsel briefed for Concrete appeared and applied to adjourn the hearing. The Tribunal refused the adjournment application, and proceeded to hear closing submissions. On 20 October 2021, the Tribunal ordered Concrete to pay the Ingleses $1,399,135 (‘quantum order’).[1]
[1]Concrete Construction Systems Pty Ltd v Inglese (Building and Property) [2021] VCAT 1216.
On 30 November 2021, Concrete applied under s 120 of the VCAT Act to reopen the s 78 order and, consequentially, the quantum order (‘s 120 application’). The Tribunal dismissed the s 120 application on 14 March 2023 (‘s 120 order’). In its reasons for the s 120 order (‘s 120 reasons’), the Tribunal found that Concrete had received proper notification of the hearing on 9 August 2021 and had no reasonable excuse for not attending it, and that its delay in bringing the s 120 application had prejudiced the Ingleses.[2]
[2]Concrete Construction Systems Pty Ltd v Inglese (Building and Property) [2023] VCAT 271, [39], [50], [67] (Senior Member Farrelly) (‘VCAT s 120 Reasons’).
Concrete then sought leave to appeal to the Supreme Court from both the s 78 order and the s 120 order, under s 148 of the VCAT Act. In its notice of appeal filed 30 March 2023, Concrete sought declarations that the s 78 order and the s 120 order related only to the Ingleses’ counterclaim against Concrete, and an order remitting the proceeding to the Tribunal to determine Concrete’s claim against the Ingleses.
On 24 May 2024, a judge in the Trial Division dismissed Concrete’s application for an extension of time to seek leave to appeal from the s 78 order, and refused leave to appeal the s 120 order.[3] The judge’s reasons for judgment are outlined in detail below. Critically, her Honour found that the power in s 78(2)(b)(i) of the VCAT Act to ‘determine the proceeding in favour of the applicant’ was broad enough to encompass the entire action between the parties (not only the counterclaim), and that the effect of the s 78 order was to determine the entire proceeding between Concrete and the Ingleses (both claim and counterclaim).
[3]Concrete Construction Systems Pty Ltd v Inglese [2024] VSC 266 (‘Reasons’).
Concrete now seeks leave to appeal from the judge’s decision on three proposed grounds of appeal:
(a)Ground 1 concerns the proper construction of s 78 of the VCAT Act. Concrete contends that the judge erred in finding that ‘proceeding’ in s 78 means the entirety of the action between the parties, and that she should instead have found that ‘proceeding’ means only the application commenced by the relevant applicant.
(b)Ground 2 is that the judge erred in finding that an extension of time was required, in circumstances where the s 78 order determined only the Ingleses’ counterclaim and Concrete’s claim remained on foot.
(c)Ground 3 is that, if an extension of time was required, the judge erred in not granting one.
For the reasons that follow, we would refuse leave to appeal.

Relevant provisions

The VCAT Act establishes the Tribunal, with both original jurisdiction and review jurisdiction.[4] The original jurisdiction of the Tribunal is the jurisdiction of the Tribunal other than its review jurisdiction.[5] The review jurisdiction is jurisdiction conferred on the Tribunal by or under an enabling enactment to review a decision made by a decision-maker.[6] The Tribunal proceeding between Concrete and the Ingleses was in the Tribunal’s original jurisdiction under the Domestic Building Contracts Act 1995 (‘DBC Act’).[7]
[4]Victorian Civil and Administrative Tribunal Act 1998, ss 1, 8, 40 (‘VCAT Act’).
[5]VCAT Act, s 41.
[6]VCAT Act, s 42(1).
[7]Domestic Building Contracts Act 1995, pt 5 div 2 (‘DBC Act’).
The original jurisdiction of the Tribunal is invoked, relevantly, by a person who is entitled, by or under an enabling enactment, to do so applying to the Tribunal in accordance with s 67 of the VCAT Act.[8] As parties to a domestic building dispute,[9] both Concrete and the Ingleses were entitled to apply to the Tribunal to resolve the dispute.[10]
[8]VCAT Act, s 43(a).
[9]DBC Act, s 54.
[10]DBC Act, s 55(a).
Sections 67 and 78 are in pt 4 div 4 of the VCAT Act. Part 4 of the VCAT Act provides for the general procedure of the Tribunal. Division 4 of pt 4 deals with preliminary procedure.
Section 67 of the VCAT Act provides:
How to make an application to the Tribunal
(1) An application to the Tribunal—
(a) must be in the form, and contain the particulars, required by the rules; and
(b) must be accompanied by any documents or further information required by the rules; and
(c) must be lodged in the manner specified in the rules.
(2) The rules may require an application to be verified by statutory declaration or in any other manner.
(3) Two or more persons entitled to make an application to the Tribunal may make a joint application.
Section 78 provides:
Conduct of proceeding causing disadvantage
(1) This section applies if the Tribunal believes that a party to a proceeding is conducting the proceeding in a way that unnecessarily disadvantages another party to the proceeding by conduct such as—
(a) failing to comply with an order or direction of the Tribunal without reasonable excuse; or
(b) failing to comply with this Act, the regulations, the rules or an enabling enactment; or
(c) asking for an adjournment as a result of (a) or (b); or
(d) causing an adjournment; or
(e) attempting to deceive another party or the Tribunal; or
(f) vexatiously conducting the proceeding; or
(g) failing to attend mediation or the hearing of the proceeding.
(2) If this section applies, the Tribunal may—
(a) order that the proceeding be dismissed or struck out, if the party causing the disadvantage is the applicant; or
(b) if the party causing the disadvantage is not the applicant—
(i) determine the proceeding in favour of the applicant and make any appropriate orders; or
(ii) order that the party causing the disadvantage be struck out of the proceeding;
(c) make an order for costs under section 109.
(3) The Tribunal's powers under this section are exercisable by the presiding member.
Section 78 is one of a series of four provisions in pt 4 div 4 of the VCAT Act that enable the Tribunal to summarily determine a proceeding:
(a)Section 75 provides that the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that in its opinion is frivolous, vexatious, misconceived or lacking in substance, or is otherwise an abuse of process.
(b)Section 76 empowers the Tribunal to make an order summarily dismissing or striking out all, or any part, of a proceeding for want of prosecution.
(c)Section 77 allows the Tribunal to make an order striking out all, or any part, of a proceeding (other than a proceeding for review of a decision) if it considers that the subject matter of the proceeding would be more appropriately dealt with by a tribunal (other than the Tribunal), a court, or any other person or body.
Three definitions in s 3 of the VCAT Act are relevant:
(a)‘application’ means application to the Tribunal.
(b)‘applicant’ means:
(a) a person who makes an application; or
(b)a person who requests or requires a matter to be referred to the Tribunal.
(c)‘proceeding’ means a proceeding in the Tribunal, including an inquiry conducted by the Tribunal, a compulsory conference under s 83 of the VCAT Act, a mediation under s 88, a rehearing or reassessment under pt 7 of the Guardianship and Administration Act 2019, or an ADR process in respect of a proceeding under the Residential Tenancies Act 1997, known as an RDRV proceeding.
Section 97 requires the Tribunal to ‘act fairly and according to the substantial merits of the case in all proceedings’. In relation to the Tribunal’s general procedure, s 98(1) provides:
The Tribunal—
(a) is bound by the rules of natural justice;
(b) is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures;
(c) may inform itself on any matter as it sees fit;
(d)must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit.

The s 78 order

A senior member of the Tribunal heard the s 78 application on 9 August 2021. The Ingleses were represented by counsel, and there was no appearance for Concrete. After hearing from counsel for the Ingleses, the senior member indicated that she would make the order sought and gave brief reasons on transcript:
SENIOR MEMBER KIRTON: If we just come back to then the order that I will make. I am satisfied under s78(2) that the proceeding is determined in favour of the respondents, with the quantum of the respondents' counterclaim to be assessed.
The reasons for that are, as set out in the affidavit, failure to file list of documents, failure to file and serve witness statements and also the failure to file and serve the tribunal book. Because that should have been done by now as well.
MR REID: Should have been.
SENIOR MEMBER KIRTON: Yes. Failure to respond to communications from both the respondents' solicitors and the tribunal, and the failure to attend the hearing today. So that's the determination under s78. …
A preamble to the s 78 order set out the senior member’s reasons for making the order:
a) The respondents made an application dated 23 July 2021 for orders under section 78 of the Victorian Civil and Administrative Tribunal Act 1998 that the proceeding be determined in favour of the respondents with the quantum of the respondents’ counterclaim to be assessed. The respondents filed an affidavit in support of the application affirmed by Donna Abu-Elias dated 23 July 2021.
b) Based on the matters set out in the affidavit and the Tribunal’s files in this proceeding and the related proceeding BP1916/2018, I am satisfied that the applicant is conducting the proceeding in a way that unnecessarily disadvantages the respondents within the meaning of section 78(1), by the following conduct:
a. Its failure to file and serve a List of Documents, in breach of the orders made on 16 September 2020;
b. Its failure to file and serve any witness statements, in breach of the orders made on 16 September 2020;
c. Its failure to file and serve a Tribunal Book, in breach of the orders made on 16 September 2020;
d. Its failure to respond to communications from the respondents’ solicitors since its solicitors filed a Notice of Ceasing to Act on 23 March 2021; and
e. Its failure to respond to communications from the Tribunal since its solicitors filed a Notice of Ceasing to Act on 23 March 2021; and
f. Its failure to attend the hearing today.
c) The unfair disadvantage to the respondents includes that the hearing is listed to commence on 6 September 2021, with an estimate of 25 days (that date having been allocated on 16 September 2020 at a directions hearing when the applicant was represented) and as the applicant has not filed a List of Documents or witness statements, the respondents are facing preparing for and running a lengthy trial while not aware of the case they have to meet. It is in the interests of justice that the proceeding be summarily determined in those circumstances.
d) Based on those matters, I am satisfied that it is appropriate to make orders under section 78(2)(b)(i) determining the proceeding against the applicant in favour of the respondents and to make the following orders. Although the proceeding as to liability is determined, I consider it appropriate to conduct a hearing to determine the quantum of the respondents’ counterclaim, as it is a claim for damages.
Order 1 of the s 78 order was:
Under section 78(2)(b)(i) of the Victorian Civil and Administrative Tribunal Act 1998 the proceeding is determined in favour of the respondents with the quantum of the respondents’ counterclaim to be assessed.
Orders 2 to 9 were procedural orders for the assessment of the counterclaim at the relisted hearing on 27 September 2021. Order 10 required Concrete to pay the Ingleses’ costs of the s 78 application. Order 11 reserved liberty to apply. Order 12 directed the principal registrar of the Tribunal to send a copy of the order to Concrete at the email and postal addresses provided by its former solicitors.
The s 78 order ended with the following statement:
Warning:
The applicant is warned that the proceeding has been determined against it under section 78 of the Victorian Civil and Administrative Tribunal Act 1998. This means it has been found liable to the respondents. The next hearing will concern only the amount that the applicant will have to pay to the respondents. The applicant is encouraged to seek legal advice.

The s 120 order

As mentioned, on 30 November 2021, Concrete made an application under s 120 of the VCAT Act, in respect of the s 78 order made on 9 August 2021 and emailed to it on 13 August 2021.[11]
[11]See [5], [7] above.
Section 120(1) of the VCAT Act allows a person in respect of whom an order is made to apply to the Tribunal for a review of the order if the person did not appear and was not represented at the hearing at which the order was made. The Tribunal may hear and determine the application if satisfied that the applicant had a reasonable excuse for not attending or being represented at the hearing, and it would be appropriate having regard to:
(a)whether the applicant has a reasonable case to argue in relation to the subject matter of the order; and
(b)any prejudice that may be caused to another party if the application is heard and determined.[12]
[12]VCAT Act, s 120(4)(a), (4A).
An application under s 120 must be made within 14 days of the applicant becoming aware of the order.[13] The Tribunal may extend that time limit, unless to do so would cause any prejudice or detriment to a party that cannot be remedied by an appropriate order for costs or damages.[14]
[13]VCAT Act, s 120(2); Victorian Civil and Administrative Tribunal Rules 2018, r 4.24(1) (‘VCAT Rules’).
[14]VCAT Act, s 126(2), (4); VCAT Rules, r 4.25(1).
A different senior member of the Tribunal heard Concrete’s s 120 application on 2 February 2023. Concrete and the Ingleses were represented by counsel. At the end of the hearing, the senior member reserved his decision. On 14 March 2023, the Tribunal made the s 120 order and published its written reasons.
The senior member’s s 120 reasons were comprehensive, but need only be summarised here. The key findings were:
(a)Concrete had a reasonable case to argue in respect of the substantive matters in the proceeding.[15]
(b)Concrete was legally represented from the commencement of the proceeding until 23 March 2021, when its solicitor gave notice that they had ceased to act for Concrete. From then until a new lawyer came on the record, the Tribunal forwarded notifications to Concrete at the email address provided in the notice of ceasing to act. On 29 September 2021, a new lawyer came on the record. A third lawyer commenced acting for Concrete from 30 November 2021.[16]
(c)Concrete received notice of the s 78 application and notice of the hearing on 9 August 2021, but chose either not to read the notice, or not to attend the hearing. It was not reasonable for Concrete to pay no heed to notices sent to it by the Tribunal. Concrete did not have a reasonable excuse for not attending the hearing.[17]
(d)Concrete was made aware of the s 78 order on 13 August 2021.[18] The s 120 application was filed on 30 November 2021, 108 days after Concrete became aware of the s 78 order, and 61 days after its second lawyer applied to adjourn the quantum assessment hearing: ‘In other words, the section 120 application was brought considerably outside the 14-day time limit prescribed by rule 4.24’ of the Victorian Civil and Administrative Tribunal Rules 2018 (‘VCAT Rules’).[19]
(e)Concrete had provided no explanation for the delay, except its alleged lack of understanding of the s 78 order. Even if that were accepted, it provided no explanation for the delay from late September, when Concrete’s second lawyer commenced representing it.[20]
(f)The delay in bringing the s 120 application had prejudiced the Ingleses. They incurred considerable costs associated with the quantum assessment hearing. Given Concrete’s apparent lack of funds, a costs order would not actually meet the prejudice of those costs thrown away.[21] In addition, the Ingleses made concessions in favour of Concrete during the quantum assessment hearing, including conceding that there should be a set off in its favour of $970,000. This would prejudice them in a way that simply could not be overcome by an order for costs or damages.[22] The prejudice arose directly as a consequence of Concrete’s delay in bringing the s 120 application — had it commenced it within time, the quantum assessment would almost certainly have been stayed pending the outcome of the s 120 application.[23]
[15]VCAT s 120 Reasons, [14]–[17].
[16]VCAT s 120 Reasons, [22].
[17]VCAT s 120 Reasons, [34]–[39].
[18]VCAT s 120 Reasons, [41].
[19]VCAT s 120 Reasons, [45].
[20]VCAT s 120 Reasons, [46]–[49].
[21]VCAT s 120 Reasons, [50]–[54].
[22]VCAT s 120 Reasons, [55]–[62].
[23]VCAT s 120 Reasons, [63].

The senior member then set out his conclusions on the s 120 application:
The builder submits that, to the extent there is prejudice to the developers which cannot be met by an undertaking or order as to costs, such prejudice should be weighed against the seriousness and magnitude of the outcome to the builder if relief is not granted under section 120 of the Act. The builder, despite having a reasonable case to argue, would be unable to prosecute its very substantial claim against the developers, and would remain lumbered with a very substantial dollar judgement against it. The builder submits that this would be manifestly unjust, and the injustice outweighs the prejudice to the developers.
I do not agree.
Throughout the history of this proceeding, all parties have been afforded procedural fairness. The builder has paid scant heed to the orders of the Tribunal and the orderly progress of the proceeding to a final hearing. I have found that the builder’s primary excuse for finding itself in the position it is now in — that it thought it had a lawyer representing it and protecting its interests — is both dubious and inadequate.
There is no acceptable explanation for the builder’s delay in bringing the section 120 application. That delay has caused prejudice to the owners, including a prejudice that is not capable of being remedied by an order for costs or damages. As such, having regard to section 126(4) of the Act, I must refuse granting the extension of time required for the bringing of the section 120 application.
Quite apart from section 126(4) of the Act, I am in any event satisfied, having regard to the builder’s inexcusable delay in bringing the section 120 application, that it would not be fair and equitable to grant an extension of time for the bringing of the section 120 application.[24]
[24]VCAT s 120 Reasons, [64]–[68].
For completeness, the senior member addressed Concrete’s further submission that the s 78 order had limited effect. The submission was that the s 78 order applied only to the Ingleses’ counterclaim, and not to Concrete’s claim in the proceeding, which remained to be determined. The senior member gave his reasons for rejecting that submission:
The submission, as I understand it, is as follows:
i. the order 1 made on 9 August 2021, expressed to be made pursuant to section 78(2)(b)(i), determines the proceeding in favour of ‘the respondents’;
ii. section 78(2)(b)(i) provides for the determination of a proceeding in favour of an ‘applicant’, not a ‘respondent’;
iii. as such, for the order to make sense, the ‘respondents’ as referred to in the order are presumed to be in the capacity of ‘applicants’ by counterclaim;
iv. as such, it is only the counterclaim ‘proceeding’ that has been determined in favour of the respondents (in their capacity as ‘applicants’ by counterclaim).
I accept the logic of the first three above-mentioned propositions, however I do not accept the jump to the fourth proposition. In my view, ‘the proceeding’ as referenced in section 78(2)(b)(i) means the whole proceeding including, where a counterclaim is brought, the claim of one party in the proceeding and the counterclaim of the other party in the same proceeding. In my view, the order, pursuant to section 78(2)(b)(i), determines the whole proceeding — that is both the claim of the applicant builder in the proceeding and the counterclaim of the respondent developers in the proceeding — in favour of the respondent developers.[25]
[25]VCAT s 120 Reasons, [74]–[75].
Finally, the senior member rejected a submission made by Concrete that the s 78 order should not have been made. In the senior member’s view, in the circumstances before the Tribunal on 9 August 2021, the orders made were appropriate.[26]
[26]VCAT s 120 Reasons, [76]–[77].
Order 1 of the s 120 order was:
The applicant’s application dated 30 November 2021 seeking orders pursuant to section 120 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) is dismissed.
Order 2 reserved costs with liberty to apply.

Trial Division Judge’s Reasons

In her Reasons, the judge identified the two orders the subject of Concrete’s notice of appeal, and set out the procedural background to those orders. Turning to the notice of appeal, the judge noted that it:
(a)sought declarations as to the effect of the s 78 order and the s 120 order, and remittal of the proceeding to the Tribunal to determine Concrete’s claim;
(b)did not seek an order setting aside either the s 78 order or the s 120 order;
(c)made no substantive challenge to the outcome of either application; and
(d)identified the following question of law:
Whether the Tribunal misunderstood and misapplied s.78 of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’) in finding that the Tribunal’s order on 9 August 2021 (which was the subject of the application under s.120 of the VCAT Act) disposed of both the proceeding concerning the claim made by the Appellant in VCAT, and the proceeding concerning the counterclaim made by the Respondents.[27]
[27]Reasons, [24]–[27].
The judge considered the issues raised by the notice of appeal in the following order:
(a)first, Concrete’s application for an extension of time to appeal;
(b)second, the proposed appeal of the s 78 order;
(c)third, the proposed appeal of the s 120 order; and
(d)fourth, whether declaratory relief of the nature sought was appropriate.

Application for extension of time to appeal

The judge referred to s 148 of the VCAT Act, the time limit of 28 days for making an application for leave to appeal from an order of the Tribunal, and the established principles guiding the Court’s discretion whether to grant an extension of time.[28] She then set out in detail the submissions of the parties, and the evidence referred to by them.[29] Of particular note was Concrete’s position that it only sought an extension of time ‘if required’, on the basis that it did not understand that the Tribunal considered that the claim had been disposed of by the s 78 order until the Tribunal made the s 120 order on 14 March 2023.[30]
[28]Reasons, [29]–[33].
[29]Reasons, [34]–[43].
[30]Reasons, [34].
As to Concrete’s submission that an extension of time was not required, the judge held:
An extension of time is, contrary to the suggestion otherwise for Concrete Construction, plainly required for the proposed appeal with respect to the s 78 Order. Relief is sought with respect to that order. It was the order which had the relevant effect of determining the proceeding and giving rise to the issue now raised by Concrete Construction of whether it determined the entire proceeding or simply the counterclaim.[31]
[31]Reasons, [44] (citations omitted).
Having regard to the evidence, the judge found:
(a) the General Manager of Concrete Construction, Mr Eleftheriou, understood that the s 78 Order either had the effect that Concrete Construction’s claim was dismissed, or that it could be understood that way, by November 2021 when he swore his affidavit;
(b) Concrete Construction’s legal representatives, and the representative or representatives of Concrete Construction involved in instructing them when the 6 December 2021 letter was written, were aware from 6 December 2021 that there was a dispute between the parties as to the effect of the s 78 Order. They were also aware, likely from November 2021 but undoubtedly from no later than 2 February 2023 when submissions were made at the s120 hearing, that the s 78 Order in fact determined Concrete Construction’s claim;
(c) the understanding of Concrete Construction’s representatives which should be attributed to it is that from November 2021 … the s 78 Order determined, or could be interpreted as determining, the entire proceeding, namely the claim and the counterclaim.[32]
[32]Reasons, [53].
On the basis of those findings, the judge continued:
With the understanding that the s 78 Order was interpreted by the Ingleses and by the Tribunal as determining the entire proceeding, Concrete Construction made the decision, at a time when it was legally represented, to make the s 120 Application rather than to seek leave from this Court to appeal the s 78 Order.
That decision was made notwithstanding that Concrete Construction had also … formed the view by 6 December 2021 that the Tribunal did not have the power to make an order determining its claim against it under s 78(2)(b)(i), which is a key element of the arguments it now puts on appeal. The view that Senior Member Kirton did not have power to make the order was reiterated in submissions by senior counsel at the hearing of the s 120 Application on 2 February 2023. An absence of power to make the s 78 Order would plainly have provided a basis to seek leave to appeal it.
The decision to pursue the s 120 Application was also made notwithstanding that the Tribunal’s powers under s 120 would not necessarily clarify the effect of the s 78 Order, nor whether it was within the Tribunal’s power to make it, given that an applicant under s 120 must first persuade the Tribunal that it has a reasonable excuse for not attending or being represented at the hearing.
Having made the deliberate choice to apply under s 120 to reopen the s 78 Order, it was unreasonable for Concrete Construction, in March 2023, when the s 120 Application did not produce the outcome that it had sought, to then seek the indulgence of an extension of time to appeal the [s 78] Order.[33]
[33]Reasons, [54]–[57] (citations omitted).
After referring to Brandwill Holdings Pty Ltd v Jonson & Ors,[34] the judge summarised her conclusion in relation to the delay and its explanation:
In the present proceeding, the delay of Concrete Construction in making the application for leave to appeal, from the time at which it became aware of the s 78 Order on 13 August 2021 to filing the notice of appeal on 30 March 2023, is inordinate. The delay is also inadequately explained. I take into account the evidence that Concrete Construction had not engaged lawyers between 23 March 2021 and 29 September 2021, although it believed that there was a solicitor representing it during this time. Even excluding that period of delay, the period from 29 September 2021 to the filing of the notice of appeal on 30 March 2023 is a serious and inadequately explained delay.[35]
[34][2014] VSC 356, [9], [24] (Emerton J) (‘Brandwill’), referred to at Reasons, [58]–[59].
[35]Reasons, [60] (citations omitted).
The judge accepted that there had been significant prejudice to the Ingleses from the delay in seeking leave to appeal the s 78 order, and that they would suffer further prejudice of the same kind if time were extended. The judge agreed with the Tribunal’s conclusions as to the prejudice to the Ingleses, which had also been established on the evidence before her, and which had only increased since the Tribunal’s s 120 order. She noted that both Mr and Mrs Inglese are in their 80s and have significant health conditions, and that the uncontested evidence was that the ongoing dispute was causing them both serious anxiety.[36]
[36]Reasons, [61]–[63].
The judge rejected Concrete’s submission that the prejudice to the Ingleses was limited because they had had the benefit of the order on their counterclaim. She said that the submission had little force, because although the quantum orders had not been appealed, they remained unpaid.[37]
[37]Reasons, [64]–[66].
Although refusing an extension of time would have had the result that Concrete would lose any opportunity to pursue its remaining claims, there was no reasonable explanation for the delay and very serious prejudice to the Ingleses caused by the delay. The judge also considered that the appeal had little prospect of success. In that context, the judge considered that an extension of time to appeal the s 78 order was not necessary to do justice between the parties.[38]

Proposed appeal of the s 78 order

[38]Reasons, [67]–[72].

The judge outlined the parties’ competing contentions in relation to the s 78 order:
(a)Concrete’s primary contention was that the s 78 order must be construed as limited to the counterclaim, because it was made under s 78(2)(b)(i) which, when invoked by a counterclaimant, permits only the determination of the counterclaim. The reference to determination of the ‘proceeding’ in the order must therefore be read as the determination of the counterclaim only, for the order to be within power.[39]
(b)The Ingleses contended that the s 78 order determined the entire proceeding in their favour, including Concrete’s claim against them. They said that s 78(2)(b)(i) permits such an order being made on the application of the counterclaimant.[40]
[39]Reasons, [73]–[74].
[40]Reasons, [76].
First, the judge considered the construction of s 78 of the VCAT Act, specifically the word ‘proceeding’. She referred to the definition of ‘proceeding’ in s 3 of the VCAT Act,[41] and said:
A compulsory conference is a process that may occur to promote a settlement of a proceeding, prior to the hearing of the proceeding: see ss 83(1) and (2)(b). It is, therefore, capable of being a component of, or ancillary to, a proceeding, or, by reason of the definition of proceeding, a proceeding of itself. A proceeding or part of it may be referred to a mediation pursuant to s 83, but again a mediation could by reference to the definition of proceeding be ‘a proceeding’ of itself. The breadth and inclusive nature of the definition of proceeding, understood in context, indicates that it may mean an entire proceeding between the parties, including all claims and counterclaims between the parties, or potentially one component of a proceeding. The meaning in every usage in the VCAT Act will depend on the context of its use. This is confirmed by the understanding of ‘proceeding’ identified in authorities in other contexts, as considered further below.[42]
[41]See [18](c) above.
[42]Reasons, [82].
The judge referred to existing authority on s 78(2), being Bell Corp Victoria Pty Ltd & Ors v Stephenson (‘Bell Corp’),[43] ACN 115 918 959 Pty Ltd (formerly known as Pearl Hill Pty Ltd) v Moulieris (‘Moulieris (trial)’),[44] and ACN 115 918 959 Pty Ltd (formerly known as Pearl Hill Pty Ltd) v Moulieris (‘Moulieris (appeal)’).[45] She then considered the meaning of ‘proceeding’ in s 78:
[43](2003) 20 VAR 280, [51] (Ashley J); [2003] VSC 255.
[44][2022] VSC 555, [4], [21] (11)–(12), [106]–[107] (Kaye JA) (‘Moulieris (trial)’).
[45][2024] VSCA 71, [28] (McLeish, Walker and Macaulay JJA) (‘Moulieris (appeal)’).
Authorities which have considered the meaning of the terms ‘proceeding’ or ‘proceedings’ in other contexts generally recognise that it may encompass an action or a step in an action such as a claim, or a counterclaim, depending on the statutory context and the objects of the relevant legislation.[46] In a context similar to the present, dealing with Court Rules providing for the court to order a stay of a ‘proceeding’, in Williams v Australian Capital Territory, McWilliam AsJ observed that the applicable statutory definition of ‘proceeding’, meaning ‘a legal or other action or proceeding’ was ‘capable of referring to one cause of action or the entire litigation involving multiple causes of action’.[47]
[46]Blake v Norris (1990) 20 NSWLR 300, 306 (Smart J); Lew v Priester [2012] VSC 57, [17]–[18] (Pagone J); Slaveski v A-G (Vic) [2015] VSCA 31, [38] (Warren CJ, Ashley and Tate JJA).
[47]Williams v Australian Capital Territory (2023) 375 FLR 20, 33 [66] (McWilliam AsJ); [2023] ACTSC 18.
In the context of interpreting the concepts of ‘proceeding’ and ‘hearing’ in the VCAT Act, the Court of Appeal has observed that the concepts bear different meanings and are not interchangeable; and that proceeding is ‘an action or matter or “some vehicle by which the jurisdiction of [the Tribunal] is invoked”, commenced by an application or other initiating process’.[48]
[48]Lillas & Loel Lawyers Pty Ltd v Celona (2014) 43 VR 1, 8 [32] (Priest JA, Neave JA agreeing at 2–3 [1]); [2014] VSCA 19, referencing Braeside Bearings Pty Ltd v HJ Brignell & Associates (Boronia) [1996] 1 VR 17, 20 (Tadgell JA).
In the present case, the statutory context suggests that ‘proceeding’ is used in s 78 of the VCAT Act to mean the entirety of the action between the parties, rather than an individual component.
The terms of s 78 itself suggest that the word ‘proceeding’ in s 78(2)(b) is not intended to be limited to only the claim or process brought by the party which has made the application. Section 78(2)(b) provides:
(2) If this section applies, the Tribunal may—
…
(b) if the party causing the disadvantage is not the applicant—
(i) determine the proceeding in favour of the applicant and make any appropriate orders; or
(ii) order that the party causing the disadvantage be struck out of the proceeding;
…
If the word ‘proceeding’ in s 78(2)(b) was limited to the claim brought by the applicant for the s 78 Order, that would not sit comfortably with the terms of s 78(2)(b)(ii) which refer to the party causing the disadvantage being ‘struck out of the proceeding’. It would be unnatural to refer to a party being ‘struck out’ of a claim or a ‘counterclaim’. Subsection 78(2)(b)(ii) would only read naturally if ‘proceeding’ is understood as the entirety of the matter in the Tribunal. Given that s 78(2)(b)(i) is introduced by the same language as s 78(2)(b)(ii), there is no good reason to read ‘proceeding’ in paragraph (b)(i) as limited to the claim of the applicant, but read paragraph (b)(ii) as referring to the proceeding generally.
Concrete Construction submitted that having regard to authority in the Tribunal that a counterclaim or cross claim is an application which ‘but for the administrative process adopted [by the Tribunal] would otherwise have been a separate proceeding’. It can be accepted that a counterclaim may constitute a proceeding, noting the breadth of the definition in s 3 of the VCAT Act. However, that does not mean that a counterclaim may not also be part of a broader proceeding, understood as the entirety of the action between the parties.[49]
[49]Reasons, [88]–[93] (some citations omitted).
The judge next considered the meaning of the words ‘to determine the proceeding in favour of’ an applicant:
Concrete Construction submits that it is not possible to construe s 78(2)(b)(i) as empowering the Tribunal to determine a counterclaim and also to dismiss the claim against an applicant because s 78(2)(b)(i) only permits the determination of the proceeding in favour of the applicant, and if the primary claim was also to be dismissed, this could only be done under s 78(2)(a) which permits the dismissal of the applicant’s claim.
Where the Tribunal is exercising a power under ss 75, 76, 77 or 78, it must expressly state that it is doing so, as it is not open for such important powers to be exercised ‘impliedly’ or in a latent manner.[50] The Tribunal order referred only to s 78(2)(b)(i), so it is open to conclude that this was the only source of power on which the Senior Member relied in making the order.
[50]Martin v Fasham Johnson Pty Ltd [2008] VSC 289, [34] (Kyrou J).
However, I consider that the s 78(2)(b)(i) power to ‘determine the proceeding in favour of an applicant’ would permit the determination of the entire proceeding, both counterclaim and claim, on the application of a respondent/applicant by counterclaim.
Once it is accepted, as it was in Moulieris,[51] that a respondent who has brought a counterclaim may be an applicant for the purposes of s 78(2)(b)(i), and also that, as concluded above, the word ‘proceeding’ may encompass the entirety of the proceeding or action between the parties, the only remaining issue is what it means to ‘determine the proceeding in favour of’ the counterclaimant. In particular, the question is whether s 78(2)(b)(i) would empower the Tribunal to make an order, on the application of a counterclaimant, that the applicant’s claim be finally determined against it by, in effect, dismissing it.
[51]Moulieris (trial) [2022] VSC 555, [106] (Kaye JA); Moulieris (appeal) [2024] VSCA 71, [28] (McLeish, Walker and Macaulay JJA).
The word ‘determine’ is not defined in the VCAT Act. It is used in that Act in the sense of both making a decision on an issue, and deciding a matter or proceeding in a conclusive way. An example of the first usage is s 30(3) which provides that the President and Vice President ‘may determine the places and times for sittings of the Tribunal’. An example of the second usage, denoting a more conclusive decision on, or determination of, a proceeding, is s 52 of the VCAT Act. That section provides that the Supreme Court, County Court or the Magistrates Court ‘does not have jurisdiction to hear, or continue to hear, or determine any proceeding in which a person bringing the proceeding brings in issue’ the exercise or failure to exercise power under planning legislation if, inter alia, the matter:
(i) has not been the subject of a proceeding in the Tribunal; or
(ii) if it has been the subject of a proceeding in the Tribunal, has not been determined by the Tribunal; or
(iii) if it has been determined by the Tribunal, the time for appeal against an order of the Tribunal in the proceeding has not expired; or
(iv) if an appeal has been brought against an order in the proceeding, the appeal has not been determined.
The use of ‘hear, or continue to hear or determine’ demonstrates that ‘determine’ involves a step beyond hearing the proceeding. The limitation on the various Courts’ powers applying when the proceeding ‘has not been determined by the Tribunal’, or if it ‘has been determined, the time for appeal … has not expired’ indicate a usage of ‘determined’ in the sense that it decides the proceeding in a way that brings it to an end in the Tribunal.
In the context of s 78 as a whole, it would be most natural to read the phrase ‘determine the proceeding in favour of’ the applicant in s 78(2)(b)(i) as meaning to make a final decision as to the outcome of the proceeding in favour of the applicant. Section 78(2)(a) refers to orders to dismiss or strike out a proceeding, orders that have a final effect (subject to a possible right of reinstatement in the case of striking out). Section 78(2)(b)(ii) refers to striking out a party, again an order which will finalise the proceeding against the party.
The powers to make the orders in either s 78(2)(a) or s 78(2)(b) are available where a party to a proceeding is conducting the proceeding in a way that unnecessarily disadvantages another party to the proceeding, which requires a focus on the conduct of the party. It would be surprising if the respondent who is a counterclaimant and is disadvantaged with respect to both the defence of the claim against it and the conduct of its counterclaim could only have the counterclaim determined in its favour, but had to continue to defend the claim of the applicant who had been conducting the proceeding to its disadvantage.
The effect of Concrete Construction’s submissions is that if this was the outcome that the Tribunal considers appropriate, the Tribunal should determine the counterclaim in favour of the counterclaimant under s 78(2)(b)(i), and dismiss the proceeding of the applicant under s 78(2)(a). This is not in my view the most harmonious or coherent reading of s 78.
(a) First, it would involve treating the ‘applicant’ referred to in s 78(2)(b)(i) as the counterclaimant, but the ‘applicant’ in s 78(2)(a) as the claimant. While this is possible, it would not be the most coherent reading of the section. It is generally appropriate to read a word as used more than once in a section the same way.
(b) Secondly, as a matter of giving the terms in s 78(2)(b)(i) their natural meaning in their context, the power to ‘determine the proceeding in favour of’ a counterclaimant in s 78(2)(b)(i) is broad enough to comfortably encompass deciding the counterclaim in their favour, and deciding the claim brought against them in their favour (and against the applicant) by dismissing it. Equally, it would give the Tribunal the discretion to decide only the counterclaim proceeding in favour of the counterclaimant, if the circumstances warranted it.
In coming to this conclusion I have taken into account, as urged by senior counsel for Concrete Construction, that the Tribunal’s powers are strictly limited to those conferred by the VCAT Act, and that the difference in language between ss 78(2)(a) and 2(b)(i) is a deliberate difference which should be given meaning. That is important in circumstances where the effect of determining a proceeding may be different to the effect of an order to strike out the proceeding, including for example that there may be a right of reinstatement if a claim is struck out rather than dismissed or determined.
It is clear that the concepts of dismissal and strike out in s 78(2)(a) have a different meaning to ‘determined in favour of’ in s 78(2)(b). However the difference in language does not in my view have the consequence that the power to determine the proceeding in favour of the applicant in s 78(2)(b)(i) does not extend to dismissing a proceeding brought against that applicant, and thus determining the proceeding in their favour. The reason for the difference in language in s 78(2)(a) and (b) is in part because s 78(2)(a) deals only with the applicant as the party causing disadvantage; s 78(2)(b) deals with disadvantageous conduct of all other parties. Proceedings in the Tribunal may involve multiple parties, including respondents and any other party joined to a proceeding, and there may be multiple different types of claim between them. The Explanatory Memorandum to the Victorian Civil and Administrative Tribunal Bill is consistent with the purpose of s 78(2)(b) being a response to any party causing disadvantage, and enabling a response against that particular party:
Clause 78 gives the Tribunal powers to deal with the conduct of a proceeding by a party to the disadvantage of another party. The presiding member may make an order for costs under section 109 or, if the offending party is the applicant, dismiss or strike out the proceeding, or, if the party is not the applicant, determine the proceeding in favour of the applicant as against that particular party or strike that party out of the proceeding.
This indicates that the key focus is the power to determine the proceeding in favour of the disadvantaged party, against the party who has been found to conduct the proceeding to their disadvantage. The claims as between the particular parties may be closely connected, with the disadvantage potentially affecting all claims as between them, rather than being quarantined to one claim. It gives s 78(2)(b)(i) a more workable operation to construe the Tribunal’s power to ‘determine the proceeding in favour of the applicant’ to be a power to determine, if appropriate, all aspects of the proceeding as between that applicant and the party causing the disadvantage.[52]
[52]Reasons, [96]–[107] (emphasis in original) (some citations omitted).

The judge summarised her conclusion as to the scope of s 78(2)(b)(i):
For the reasons above, s 78(2)(b)(i) should be construed as conferring on the Tribunal the power to determine either an entire proceeding as between parties, or a claim in that proceeding, in favour of an applicant (who may be an applicant by counterclaim). The determination of the proceeding in the applicant’s favour may be by deciding the applicant’s counterclaim in their favour, and also dismissing any claim against it, being also a determination of that component of the proceeding in favour of the applicant.[53]
[53]Reasons, [108].
Next, the judge considered the effect of the s 78 order made by the Tribunal. She stated the relevant principle — that the meaning of a court order is to be derived from the language used, read fairly. Where that language is susceptible of more than one meaning, recourse may be had to extrinsic material, including the reasons for judgment.[54]
[54]Reasons, [110], referring to Laming v Jennings [2018] VSCA 335, [123] (Kyrou, McLeish and Niall JJA).
Having rejected Concrete’s submission that s 78(2)(b)(i) could only support determination of the counterclaim, the judge did not accept that the s 78 order had to be interpreted as applying only to the counterclaim.[55] She continued:
The next observation that can be made from the language of the s 78 Order is that the order refers to the determination of ‘the proceeding’ in favour of the respondents, with the ‘counterclaim’ to be assessed. The use of the two different terms suggests that they were not intended to mean the same thing. Put a different way, if the word ‘proceeding’ had been intended to refer only to the counterclaim, it would be surprising that ‘counterclaim’ was not used instead, consistent with the use of that word later in the order. The natural reading of the phrase as a whole suggests that the Senior Member is first referring to the determination of the proceeding, and then to the assessment of the quantum of a component of it, the counterclaim.
To understand the reference to ‘the proceeding is determined in favour of the respondents’ as being intended to decide the entirety of the claims identified by the single proceeding number would also be consistent with the way the VCAT Rules refer to proceedings. Rule 4.29, in Order 4 dealing with the general procedure of the Tribunal, refers to ‘proceeding’ in a way that demonstrates that it is the entirety of a proceeding as between the parties as identified by a specific identifying number. …[56]
[55]Reasons, [112].
[56]Reasons, [113]–[114] (citations omitted).
The judge then referred to the Tribunal’s reasons for making the s 78 order, which did not focus on the counterclaim but referred to the ways in which Concrete was conducting the proceeding so as to disadvantage the Ingleses.[57] Referring to para (d) of those reasons, the judge said:
Three observations can be made as to this paragraph of the reasons.
(a) It refers to ‘determining the proceeding against the applicant in favour of the respondents’. The term ‘proceeding’ is used, rather than ‘counterclaim’, despite referring later in that paragraph specifically to the counterclaim.
(b) The Senior Member refers to determining the proceeding ‘in favour of the respondents against the applicant.’ The terms ‘applicant’ and ‘respondents’ are used throughout the order to refer to the roles of the parties as they were identified in the primary proceeding. She did not use the terminology of ‘applicants’ by counterclaim, nor ‘respondent’ to the counterclaim. This is consistent with an intention to refer to the proceeding as a whole.
(c) The Senior Member states that ‘the proceeding as to liability is determined’. This naturally reads as the entirety of the proceeding. There is no suggestion that there is any remaining question of liability arising from the applicant’s claim which remains to be determined.
The determination of both the claim and the counterclaim is consistent with the nature of the conduct on the part of Concrete Construction that the Senior Member found had caused unnecessary disadvantage, which involved the failure to file evidence relating to their claims. It was also the case that the claim and counterclaim in the proceeding were factually overlapping to a significant extent, in that work alleged by the Ingleses to be defective in their counterclaim were also the subject of claims for variations by Concrete Construction.[58]
[57]Reasons, [115]–[117].
[58]Reasons, [119]–[120] (citations omitted).
The judge noted that, in similar circumstances in Moulieris (appeal), this Court had recognised the relationship between the disadvantageous conduct of the claimant and the practical effect on both the claim and counterclaim.[59]
[59]Reasons, [121]–[122], referring to Moulieris (appeal) [2024] VSCA 71, [84]–[85], [92]–[93] (McLeish, Walker and Macaulay JJA).
In the judge’s view, the other orders made by the Tribunal at the same time as the s 78 order were consistent with the Tribunal having considered the order to have determined all issues of liability.[60] The ‘Warning’ at the end of the s 78 order reinforced that conclusion:
It is apparent that the warning was included in the orders to ensure that the applicant understood the effect of the orders. It was expressed in simple terms. Had the Senior Member intended only to determine the counterclaim, it would have been expected that she would have stated that ‘the counterclaim has been determined against’ the applicant, to be quite clear about the effect of the order. She did not, and also made the unqualified statement that the applicant ‘has been found liable to the respondents’.[61]
[60]Reasons, [123].
[61]Reasons, [124].
The judge was also confirmed in her conclusion by terms of the s 78 application, the affidavit filed in support of it, and the submissions made at the hearing on 9 August 2021. Neither referred to the specific part of s 78 on which the Ingleses relied, and the disadvantaging conduct identified in the affidavit related primarily to Concrete’s failure to prosecute its own claim. The substance of the application made it clear that it was their intention in making the application to have the entire proceeding determined in their favour.[62] The judge did not accept Concrete’s submission that the concessions made in its favour at the quantum assessment hearing demonstrated that its claim remained on foot.[63]
[62]Reasons, [125]–[132].
[63]Reasons, [133].
In conclusion on the proposed appeal of the s 78 order, the judge said:
The reasons given by the Senior Member for the s 78 Order, the scope of the application made by the Ingleses when applying for that order, and the submissions made in support of it all support the interpretation of the order as determining both the Ingleses’ counterclaim and Concrete Construction’s claim in favour of the Ingleses. The effect of the order was that Concrete Construction’s claim was no longer on foot which, taking into account the unsuccessful application to reopen the order under s 120, remains the case.[64]

Proposed appeal of the s 120 order

[64]Reasons, [134].

The judge observed that Concrete did not challenge the Tribunal’s decision to refuse to reopen the proceeding under s 120 of the VCAT Act, or the refusal of an extension of time for that application. Rather, the appeal was limited to the contention that the Tribunal had misunderstood and misapplied s 78 in finding that the s 78 order disposed of both the claim and the counterclaim. The judged observed that this finding was not dispositive, and had been considered by the Tribunal ‘for completeness’.[65]
[65]Reasons, [135]–[139].
The judge said that, in those circumstances:
… the proposed appeal is in effect against views expressed by Senior Member Farrelly rather than any order of the Tribunal. It is doubtful that an alleged error arising in the reasons alone, and not reflected in the orders, is a proper basis for an appeal pursuant to s 148 of the VCAT Act.[66] It is, however, unnecessary to express a definitive view on that issue. It follows from my conclusion that the effect of the s 78 Order was in fact to determine the entire proceeding, both claim and counterclaim, in favour of the Ingleses that there was no error in Senior Member Farrelly’s conclusion as to the effect of the s 78 Order and no basis on which the s 120 Order could attract relief on a s 148 appeal.[67]

Whether declaratory relief of the nature sought was appropriate

[66]Wright v Victorian Civil and Administrative Tribunal (2001) 17 VAR 306, [9] (Gillard J); [2001] VSC 35.

[67]Reasons, [140].

The judge concluded her reasons with some brief observations as to why she would not have made the declarations sought in any event. In her Honour’s view, it would be appropriate to circumvent the requirements of s 148 of the VCAT Act by relying on the Court’s broad power to make declarations in an appeal from the Tribunal. It would also be a rare case in which it would be appropriate to make a declaration as to the meaning of a Tribunal order, in circumstances where there is no challenge to the order itself.[68]
[68]Reasons, [141]–[146].
The judge said that the appropriate mechanism for resolving uncertainty about the meaning of an order is an application to the Tribunal under s 119 of the VCAT Act. Accordingly, if Concrete held the view that the s 78 order must be interpreted as limited to the counterclaim, it would have been more efficient and cost effective to make an application to the Tribunal under s 119 to clarify the meaning of ‘proceeding’ in the s 78 order.[69]
[69]Reasons, [147]–[152].
For those reasons, the judge refused to extend time to bring the application for leave to appeal against the s 78 order, refused leave to appeal the s 120 order, and dismissed Concrete’s applications.[70]
[70]Reasons, [153].

Issues on appeal

In its attempts to avert the consequences of the Tribunal’s s 78 order, Concrete has woven a densely tangled procedural web. We have separated out the threads of that web as best we can, and will consider the issues raised in Concrete’s proposed appeal in the following order:
(a)first, the intended effect of the s 78 order;
(b)second, the proper construction of s 78(2)(b)(i) of the VCAT Act;
(c)third, whether Concrete can appeal the Tribunal’s reasons for making the s 120 order; and
(d)finally, if any other order is appropriate.

Intended effect of the s 78 order

To reiterate, order 1 of the s 78 order was:
Under section 78(2)(b)(i) of the Victorian Civil and Administrative Tribunal Act 1998 the proceeding is determined in favour of the respondents with the quantum of the respondents’ counterclaim to be assessed.
The judge held that this order was intended to determine both the claim and the counterclaim in favour of the Ingleses.[71]

Concrete’s submissions

[71]Reasons, [109]–[134]. See [50]–[56] above.

Concrete contended that, if the Tribunal had intended to dismiss its claim, it would have relied on the specific power to do so under s 78(2)(a) to dismiss or strike out the applicant’s proceeding, as the Tribunal did in Moulieris (trial).[72] Instead, the Tribunal relied only on the power in s 78(2)(b)(i) to determine the proceeding in favour of the applicant. The only proceeding in which the Ingleses were the applicants was their counterclaim, and so the s 78 order only determined that proceeding.
[72]Referring to Moulieris (trial) [2022] VSC 555, [19] (Kaye JA).
Concrete submitted that the Tribunal has only the jurisdiction conferred on it by statute, and can only summarily dismiss a proceeding ‘if there is a statutory provision which confers that power on it and the provision is validly invoked’.[73] Here, the Tribunal did not invoke its power to dismiss Concrete’s claim under s 78(2)(a), indicating that it did not intend the s 78 order to have that effect.
[73]Referring to Martin v Fasham Johnson Pty Ltd [2008] VSC 289, [27] (Kyrou J).
Further, Concrete said that in the s 78 application before the Tribunal, no submissions were made about whether Concrete’s claim should be dismissed, struck out, or otherwise determined. That led to a strong inference that the Tribunal did not intend to make any orders in respect of Concrete’s claim.

The Ingleses’ submissions

The Ingleses submitted that the s 78 order was intended to determine all matters of controversy comprising the proceeding, and that it was unnecessary to distinguish between their counterclaim and Concrete’s claim. The overlapping and intertwined nature of the claim and the counterclaim supported a conclusion that ‘proceeding’ in the s 78 order referred to both the claim and the counterclaim.
The Ingleses said that they made their s 78 application because of Concrete’s failure to comply with the Tribunal’s procedural directions, which affected the primary claim and the counterclaim alike. The Ingleses argued that the entire proceeding — being all matters of controversy within the relevant Tribunal proceeding number — was infected by Concrete’s disadvantageous conduct, and the entire proceeding was then determined. They said that the s 78 order made no attempt to distinguish between the claim and the counterclaim, and no distinction was needed. To ‘determine’ a proceeding is to bring to an end all matters of controversy comprising the proceeding, and a specific order dismissing or striking out Concrete’s claim was not required.
In the Ingleses’ submission, the ambit of the s 78 order is to be determined by reference to its terms, the Tribunal’s reasons, and the s 78 application and supporting affidavits. It should not be determined by working backwards from the scope of the power conferred by s 78(2)(b)(i) of the VCAT Act.

Consideration

The intended effect of the s 78 order is to be determined objectively, by reference to the language used in the order, read fairly and in context. Any ambiguity in the language used may be resolved by reference to the reasons for the s 78 order and other relevant extrinsic material.[74]
[74]Laming v Jennings [2018] VSCA 335, [123] (Kyrou, McLeish and Niall JJA); Jason Hall (t/as JHL Lawyers) v Val Eco Homes Pty Ltd (in liq) [2021] QCA 236, [27] (Fraser JA).
Looking first at the words of the s 78 order, it is notable that the Tribunal distinguished between the ‘proceeding’ that it determined in favour of the Ingleses and their ‘counterclaim’, the quantum of which was to be assessed. Had the Tribunal intended to determine only the counterclaim, it could easily have used the word ‘counterclaim’ instead of ‘proceeding’ in the s 78 order. The Tribunal’s use of two different words in the same order indicates that it was referring to two different things.
The warning at the end of the s 78 order confirmed that the ‘proceeding’, not the ‘counterclaim’, had been determined against Concrete.
We do not think it significant that the Tribunal only invoked s 78(2)(b)(i) as the basis for the order. Plainly, the Tribunal considered that s 78(2)(b)(i) supported its intended disposition. No submissions were made to the Tribunal about the scope of the power in s 78(2)(b)(i), or whether it would support an order determining both the claim and the counterclaim. It inverts the inquiry to ask what the Tribunal intended by reference to what Concrete now submits is the scope of the power relied on by the Tribunal in the s 78 order.
As to context, the reasons given by the Tribunal on transcript and in the preamble to the s 78 order also indicate that the Tribunal intended to determine all claims made in the proceeding — both Concrete’s claim and the Ingleses’ counterclaim. The Tribunal was satisfied that Concrete was conducting ‘the proceeding’ in a way that unnecessarily disadvantaged the Ingleses.[75] Concrete’s disadvantaging conduct included its failure to comply with the Tribunal’s procedural orders of 16 September 2020, which related to both the claim and the counterclaim. It also concerned Concrete’s failure to respond to communications from the Tribunal and the Ingleses’ solicitors in relation to the entire proceeding. The unfair disadvantage to the Ingleses included that a 25 day hearing of the claim and the counterclaim was listed to commence on 6 September 2021, and they were ‘facing preparing for and running a lengthy trial while not aware of the case they [had] to meet’.[76] The case the Ingleses had to meet was the claim brought against them by Concrete. It was because of that disadvantage that the Tribunal considered it was in the interests of justice to summarily determine ‘the proceeding’.[77]
[75]Para (b) of the preamble to the s 78 order, set out at [21] above.
[76]Para (c) of the preamble to the s 78 order, set out at [21] above.
[77]Ibid.
The broader context of the s 78 application, the supporting affidavit, and the submissions made on behalf of the Ingleses all confirm that the Tribunal intended to bring the entire proceeding to an end. We note the following:
(a)In their s 78 application, the Ingleses sought that ‘the proceeding be determined in favour of the Respondents against the Applicant [for] damages to be assessed (pursuant to s78 of the VCAT Act)’. The application was made using the Tribunal proceeding number allocated to the claim, in which the counterclaim had also been made. The Ingleses did not specifically rely on s 78(2)(b)(i) as the basis for their application.
(b)The affidavit in support of the s 78 application described the proceeding as follows:
The Applicant (the registered Builder of the development at 276–280 Maroondah Highway, Ringwood, Vic 3134 (Project)) commenced the proceedings against the Respondent (the developer of the Project and also the registered proprietors of thirty-one apartments in the Project, namely apartment 2, 6, 13, 15, 16, 18, 19, 21, 22, 23, 24, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 44, 50, 53 , 55, 58, 65, 66), seeking payment for alleged variations. The Respondents deny that the matters claimed by the Applicant are variations and they have also brought a counterclaim against the Applicant in respect of defects identified at the Project in breach of the statutory warranties implied by s8 of the Domestic Building Contracts Act 1995.
(c)After identifying Concrete’s non-compliance with the Tribunal’s procedural orders, the affidavit said that the non-compliance was causing the Ingleses serious disadvantage and prejudice because they did not know what material or evidence Concrete intended to rely on to prosecute its case — in other words, they did not know the case they had to meet.
(d)The same point was made by counsel for the Ingleses in his submissions in support of the s 78 application. After outlining Concrete’s claim and the matters that were in dispute, he submitted that his clients were entitled to know the evidence against them and the case they had to meet.
Concrete accepted that the claim and the counterclaim were inextricably related, and that its failures to comply with the Tribunal’s procedural orders affected both the claim and the counterclaim. In those circumstances, the only conclusion open is that the Tribunal intended the s 78 order to determine the entire proceeding — both claim and counterclaim.
No error has been shown in the judge’s conclusion that the s 78 order had that effect. To the contrary, we consider her Honour’s reasoning to be compelling and clearly correct.

Construction of s 78(2)(b)(i)

It will be recalled that the judge found that s 78(2)(b)(i) of the VCAT Act permitted the determination of the entire proceeding, both claim and counterclaim, on the application of the respondent/applicant by counterclaim.[78] Concrete contended that the judge erred in her construction of s 78(2)(b)(i).

Concrete’s submissions

[78]Reasons, [78]–[108]. See [46]–[49] above.

Concrete submitted that, on its proper construction, s 78(2) of the VCAT Act requires that a claim and a counterclaim be treated as separate ‘proceedings’, with the orders the Tribunal might make dependent on whether the party causing the disadvantage is ‘the applicant’ or ‘not the applicant’ in the relevant proceeding. Where the Tribunal intends to summarily dispose of both claim and counterclaim because of conduct causing disadvantage, s 78(2) requires two separate orders. An order must be made under s 78(2)(a) in the proceeding in which the party causing disadvantage is the applicant, and another order must be made under s 78(2)(b) in the proceeding in which the party causing disadvantage is not the applicant.
In Concrete’s submission, three key propositions supported its contention that the term ‘proceeding’ in s 78(2)(b)(i) means either a claim or a counterclaim, but not both.
First, it said that the notion of a ‘proceeding’ under s 78(2) is closely linked with the notion of an ‘applicant’. Section 78(2) is divided by structure and language into two limbs:
(a)subparagraph (a), which applies where the party causing the disadvantage is ‘the applicant’; and
(b)subparagraph (b), which applies where the party causing the disadvantage is ‘not the applicant’.
According to Concrete, whether the offending party is ‘the applicant’ or ‘not the applicant’ is the gateway or trigger for the orders that the Tribunal is empowered to make under s 78(2)(a) or (b). An ‘applicant’ is defined in s 3 of the VCAT Act as ‘a person who makes an application’. While administratively the Tribunal may deal with a claim and a counterclaim together, s 78 is not concerned with a ‘proceeding’ in the administrative sense. Rather, it is concerned with circumstances in which either an applicant or a non-applicant is causing disadvantage. It gives the Tribunal different powers to dispose of a party’s proceeding, being either a claim or a counterclaim. Concrete said that this is consistent with the analysis in Moulieris (trial), and allows for the possibility that the claim and counterclaim may not be interrelated. Where a party is both applicant on its own claim, and not an applicant on the counterclaim, it is open to the Tribunal to make orders under both limbs of s 78(2) — as was the case in Bell Corp and Moulieris (trial).
Second, Concrete said that the powers under s 78(2) are specific and exhaustive. If the party causing disadvantage is the applicant, the Tribunal may make an order to dismiss or strike out the proceeding. If the party causing disadvantage is not the applicant, the Tribunal may make orders determining the proceeding in favour of the applicant or striking out the party causing the disadvantage. The Tribunal has no general or ‘at large’ powers to dispose summarily of a proceeding without conducting a hearing on the merits. The judge’s construction of s 78(2) assumed that ‘determined’ meant the same as ‘dismissed’ or ‘struck out’, which did not give effect to the specific and highly restrictive structure of the powers under s 78(2)(a) and (b).
Concrete disputed the judge’s conclusion that s 78(2)(b)(i) permits determination of either an entire proceeding between parties or a claim in the proceeding. It said that the language of s 78(2)(b)(i) did not support the existence of such a choice.
Third, Concrete argued that there is a critical distinction between an order under s 78(2)(a) to dismiss a proceeding and an order to strike out a proceeding. The former ends the proceeding without any possibility of reinstatement, while the latter leaves open that possibility.
Concrete pointed to some difficulties with the judge’s construction of s 78(2). It said that it divorces the notion of ‘proceeding’ from the role of the offending party as either the applicant or the non-applicant, leaving unclear what purpose is served by the structure of s 78(2)(a) and (b). It also equates ‘determine’ with ‘dismiss’ and ‘strike out’, begging the question of why Parliament used different words, and going against the principle that prefers an interpretation that gives meaning to each word of a provision. In Concrete’s submission, the judge read s 78(2) as if it gave the Tribunal a general power to determine a proceeding in favour of the party not causing the disadvantage, when those were not the words Parliament chose to use.
Further, Concrete argued that s 67 of the VCAT Act and rr 4.04 and 4.14 of the VCAT Rules support its contention that a counterclaim is a separate proceeding:
(a)Its starting point was that a ‘proceeding’ in the VCAT Act means some action, matter, or vehicle by which the jurisdiction of the Tribunal is invoked, commenced by an application or other initiating process.[79]
(b)Section 67 of the VCAT Act requires that an application be lodged in the manner specified in the rules.
(c)Rule 4.04 of the VCAT Rules provides that an application to the Tribunal must be lodged with the principal registrar, by electronic communication or post.
(d)Rule 4.14 provides that a counterclaim by one party against another party in a proceeding must be lodged in the same manner as an application.
[79]Referring to Lillas & Loel Lawyers Pty Ltd v Celona (2014) 43 VR 1, 8 [32] (Priest JA); [2014] VSCA 19.
Concrete submitted that, read together, those provisions lead to the conclusion that a claim is a proceeding and a counterclaim is a separate proceeding. It said that this conclusion was consistent with the holding in Moulieris (trial)[80] — that an applicant by counterclaim can be an applicant for the purposes of s 78(2)(b).

The Ingleses’ submissions

[80][2022] VSC 555, [107]–[108] (Kaye JA).

The Ingleses contended that the judge’s construction of s 78(2)(b)(i) was correct. They said that a broad interpretation of the word ‘proceeding’ was supported by the flexible definition of ‘proceeding’ in the VCAT Act and the evident purpose of s 78 — that is, to enable the Tribunal to make an appropriate order under s 78(2) when the preconditions in s 78(1) are satisfied. They also relied on the purposes of the VCAT Act — to provide a low cost and informal forum with flexible procedures to achieve a just result in the most efficient way.[81] To give effect to those purposes, they submitted that ‘proceeding’ can refer to all matters defined by the pleadings filed by the parties within the proceeding with a unique Tribunal reference number. They said that Concrete’s restrictive interpretation of the word ‘proceeding’ would not achieve those purposes and would be contrary to this Court’s decision in Moulieris (appeal).[82]
[81]Referring to Interpretation of Legislation Act 1984, s 35; VCAT Act, s 98(1)(d); Victoria, Parliamentary Debates, Legislative Assembly, 9 April 1998, 972–3 (Jan Wade); Herald & Weekly Times Pty Ltd v Victorian Civil and Administrative Tribunal (2006) 24 VAR 174, 181 [27] (Maxwell P); [2006] VSCA 7.
[82][2024] VSCA 71, [84]–[85] (McLeish, Walker and Macaulay JJA).
Further, the Ingleses submitted that, consistent with the purpose of the provision and the decisions in Moulieris (trial) and Moulieris (appeal), nothing turns on which party initiates an application under s 78. They said that it was clear from the reasoning in Moulieris (trial) that an applicant for the purposes of s 78(2) can be either the applicant in the claim or the applicant in the counterclaim.
Turning to context, the Ingleses drew attention to the manner in which ‘proceeding’ is used in ss 75, 76 and 77 of the VCAT Act, which provide the Tribunal with powers to summarily dispose of a proceeding or part of a proceeding. They said that this suggested that, in those provisions, ‘proceeding’ refers to all matters in controversy between the parties, not limited to a claim or a counterclaim. They acknowledged that s 78(2) did not expressly provide for an order to be made in relation to a part of a proceeding, but said that the flexible construction of ‘proceeding’ adopted by the judge could encompass the whole proceeding or, in some instances, part of a proceeding.
In relation to the structure of s 78(2), the Ingleses submitted that s 78(2)(b) gives the Tribunal a broader, more flexible power than s 78(2)(a). Section 78(2)(b)(i) permits the Tribunal not only to determine a proceeding against a party causing disadvantage, but also to make any appropriate orders. Interpreting the provision to permit the Tribunal to make one order instead of two would give effect to the intention that the Tribunal operate with flexibility, fairness, and minimum technicality.
As to the meaning of ‘determine’ in s 78(2)(b)(i), the Ingleses referred to the Macquarie Dictionary definition of the word, which included ‘to settle or decide’ and ‘come to an end’. They said that ‘determine’ is a broad term that encompasses both dismissal of a claim and determination of a counterclaim. A limited interpretation of the word ‘determine’ would be contrary to the intention of s 78 to provide a remedy for disadvantageous conduct by a party to a proceeding.

Consideration

The construction of s 78(2) of the VCAT Act must begin with the text of the provision, having regard to its context and purpose.[83] If the words of the provision have more than one possible meaning, a meaning that promotes the purpose or object underlying the statute is to be preferred over one that does not.[84] Ordinarily, the legislature is assumed to have intended to pursue its purposes by coherent means and to give effect to harmonious goals.[85]
[83]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27, 46–7 [47] (Hayne, Heydon, Crennan and Kiefel JJ); [2009] HCA 41; R v A2 (2019) 269 CLR 507, 520–1 [32] (Kiefel CJ and Keane J); [2019] HCA 35 (‘A2’); ENT19 v Minister for Home Affairs (2023) 278 CLR 75, 105 [86] (Gordon, Edelman, Steward and Gleeson JJ); [2023] HCA 18 (‘ENT19’).
[84]Interpretation of Legislation Act 1984, s 35(a); A2 (2019) 269 CLR 507, 522 [37] (Kiefel CJ and Keane J); [2019] HCA 35.
[85]SAS Trustee Corporation v Miles (2018) 265 CLR 137, 157 [41] (Gageler J); [2018] HCA 55; ENT19 (2023) 278 CLR 75, 106 [87] (Gordon, Edelman, Steward and Gleeson JJ); [2023] HCA 18.
The full text of s 78 is set out at [16] above. The text of s 78(2) is not straightforward, and its operation becomes more difficult as the factual circumstances calling for its application become more complex.
We first observe that, in a case where there is a single claim, for which there is a single applicant and a single respondent (ie a single ‘party who is not the applicant’), the operation of s 78(2) is clear:
(a)if the applicant is the party causing disadvantage, the Tribunal may order that ‘the proceeding’ (ie the applicant’s claim) be dismissed (or struck out) under 78(2)(a); or
(b)if the respondent is the party causing disadvantage, the Tribunal may determine ‘the proceeding’ (ie the applicant’s claim) in favour of the applicant (or strike out the party causing disadvantage) under 78(2)(b).
In such a case, there is but one claim and it is coterminous with the proceeding.
However, the operation of s 78 becomes more complex where there are more parties and also where there is an additional claim of some kind, over and above the initial application. The section must operate appropriately in those more complex circumstances; its operation is not confined to the single party, single claim context.
In that regard, Moulieris (trial) established that, where a respondent to a claim has filed a counterclaim, they are properly characterised as the applicant in the counterclaim.[86] Thus, for the purposes of establishing who is the applicant and who is ‘not the applicant’, a party to a proceeding may ‘wear more than one hat’. A respondent may also be a counterclaimant and thus, in relation to the counterclaim, be properly described as ‘the applicant’. And the initiating applicant may be, in relation to a counterclaim, ‘a party who is not the applicant’. In light of that, Concrete accepted that:
(a)an order dismissing its claim could have been made under s 78(2)(a), because it (as the applicant in its claim) was the party causing the disadvantage; and
(b)an order determining the counterclaim in favour of the Ingleses could have been made under s 78(2)(b)(i), because Concrete (which was ‘not the applicant’ in the counterclaim) was the party causing the disadvantage.
In other words, it was uncontentious that where there is a counterclaim, and where the initiating applicant (who, for the purposes of the counterclaim is ‘a party who is not the applicant’) is the party who is causing the disadvantage, s 78(2)(b) is enlivened.
[86]Moulieris (trial) [2022] VSC 555, [106] (Kaye JA). That conclusion was not challenged on appeal.
Once that is accepted, the real question is whether the Tribunal can, under s 78(2)(b)(i), both determine the counterclaim in favour of the counterclaim applicant and determine the claim in favour of the counterclaim applicant (by dismissing it). That requires attention to the scope of the power conferred once s 78(2)(b)(i) is enlivened — that power is to ‘determine the proceeding in favour of the applicant’. Is that language broad enough to permit both the determination of the counterclaim and the determination of the claim?
As the judge observed, the word ‘determine’ is not defined in the VCAT Act, but is used in the sense of both making a decision on an issue and deciding a matter or proceeding in a conclusive way.[87] Using the word in the latter sense, one way to determine a proceeding would be to dismiss it.
[87]Reasons, [100].
The answer to the question of whether the Tribunal is able to determine both the counterclaim and claim in favour of the counterclaim applicant under s 78(2)(b)(i) depends on whether the word ‘proceeding’ in both s 78(2)(a) and s 78(2)(b) is ‘tethered’ to the party identified in the sub-paragraph. That is, is the proceeding to be dismissed under s 78(2)(a) only the proceeding to which the party causing the disadvantage is the applicant? And is the proceeding to be determined under s 78(2)(b) only the proceeding to which the party causing the disadvantage is not the applicant?
We accept that there are two possible constructions of the term ‘proceeding’ as used in the phrase ‘to determine the proceeding in favour of the applicant’ in s 78(2)(b)(i).
The first possible construction of the term ‘proceeding’ in s 78(2)(b)(i), advanced by Concrete, is that it means only the proceeding in which the offending party is not the applicant. Thus, where a party is ‘the applicant’ because they are a counterclaimant, this would permit the Tribunal to conclusively decide the counterclaim in favour of the counterclaimant. But it would not permit the Tribunal to conclusively decide the initial claim in favour of the counterclaimant.
The second possible construction of the term ‘proceeding’ in s 78(2)(b)(i) is that it can mean the entire proceeding, or it can mean a claim within the proceeding (which is itself a ‘proceeding’). Where the applicant is an applicant because they are a counterclaimant, that would permit the Tribunal both to dismiss the initiating claim, and to allow the counterclaim. Equally, it would permit the Tribunal only to determine the counterclaim in favour of the counterclaimant, if that was just and appropriate in the circumstances. On this approach, ‘proceeding’ has an ambulatory meaning.
Concrete contended that only the first construction is open, based on the context and structure of s 78(2). Concrete contended that ‘proceeding’ takes its meaning from the role of the offending party, and that the structure of s 78(2)(a) and (b) creates separate gateways or triggers for the orders that may be made against an applicant and a non-applicant respectively.
It is the case that s 78(2) contemplates different orders, depending on whether the party causing disadvantage is ‘the applicant’ or ‘not the applicant’. This could support reading ‘proceeding’ to mean:
(a)in s 78(2)(a), only the proceeding in which the offending party is the applicant; and
(b)in s 78(2)(b), only the proceeding in which the offending party is not the applicant.
However, there are several other matters that support the more flexible interpretation of ‘proceeding’ in s 78(2) advanced by the Ingleses and preferred by the judge.
First, we observe that the word ‘proceeding’ is defined in s 3 of the VCAT Act to mean ‘a proceeding in the Tribunal’, including the specific processes of an inquiry, a compulsory conference,[88] a mediation,[89] a rehearing or reassessment in the Tribunal’s guardianship jurisdiction, or an ADR process in a proceeding under the Residential Tenancies Act 1997. The definition is capable of encompassing both an entire proceeding in the Tribunal, with all its constituent parts, and specific processes that may comprise part of a larger proceeding.
[88]Under s 83 of the VCAT Act.
[89]Under s 88 of the VCAT Act.
In Krongold Constructions (Aust) Pty Ltd v Thurin (‘Krongold’),[90] this Court considered the meaning of ‘proceeding’ in s 77 of the VCAT Act. In that case, the Tribunal had made orders under s 77 striking out a proceeding in the Tribunal brought under the DBC Act on the basis that its subject matter would more appropriately be dealt with by the Supreme Court, and referring the matter to the Supreme Court. There were questions about the effect of the orders made under s 77 and their interaction with relevant limitation periods. In the course of answering those questions, this Court said that ‘proceeding’ in s 77 ‘is the means or vehicle by which the controversy is framed for determination in [the Tribunal]’, and ‘will take its shape by reference to the practices and procedures that are applicable to [the Tribunal], some of which may be peculiar to that body’.[91]
[90](2023) 414 ALR 1; [2023] VSCA 191 (‘Krongold’).
[91]Krongold (2023) 414 ALR 1, 17 [64] (Beach, McLeish and Niall JJA); [2023] VSCA 191.
While subordinate legislation generally does not assist in construing a statute such as the VCAT Act, the VCAT Rules are a convenient means of identifying relevant practices and procedures of the Tribunal. In that regard, we observe that s 67 of the VCAT Act requires an application to be in the form required by the rules, and lodged in the manner specified in the rules. Rule 4.04 provides that an application must be lodged with the principal registrar, either by electronic communication or post. Rule 4.14 enables ‘a counterclaim by one party against another party in a proceeding’, and requires that such a counterclaim be lodged in the same manner as an application. Contrary to Concrete’s submission, this does not indicate that a counterclaim is a separate ‘proceeding’ for the purposes of s 78(2)(b)(i). Rather, as the judge observed, r 4.14 treats a counterclaim as a component of a broader proceeding.[92]
[92]Reasons, [94].
Second, we note that s 78 is one of the suite of summary dismissal powers given to the Tribunal in pt 4 div 4 of the VCAT Act.[93] We accept that each of ss 75, 76, and 77 provide that the Tribunal may make an order in relation to ‘all, or any part of, a proceeding’, while s 78 provides only for orders to be made in relation to ‘the proceeding’. We consider this aspect of the VCAT Act to be of limited assistance in the construction of s 78, which is different in form and purpose from those other sections. Certainly this difference in language does not compel the construction for which Concrete contended. Rather, it might support the conclusion that the word ‘proceeding’ in s 78(2) was intended to capture the entire proceeding, and not simply a part of the proceeding (such as a claim or counterclaim) — but even that reasoning would impose an inappropriate restriction on the Tribunal’s power to fashion an appropriate suite of orders in relation to a party who is causing disadvantage to other parties. For example, if there are multiple respondents to a claim, and one respondent only is causing disadvantage, it would not be appropriate for the Tribunal to determine the entire claim (ie the entire proceeding) in favour of the applicant. Rather, it may be appropriate to determine the applicant’s claim against that respondent in favour of the applicant, under s 78(2)(b)(i).
[93]See [17] above.

Third, it is significant that s 78 is located within pt 4 of the VCAT Act, which provides for the general procedure of the Tribunal for the entire range of proceedings that can be brought in the Tribunal’s original and review jurisdictions. Equally, the preliminary procedures in pt 4 div 4 are applicable to the whole of the Tribunal’s diverse jurisdiction. It would be wrong to construe s 78 only through the lens of adversarial litigation that typically takes place in the Tribunal’s jurisdiction under the DBC Act. Section 78 also has work to do in many other kinds of proceedings where a party who is ‘not the applicant’ may be, variously:
(a)the decision-maker who made the decision under review;[94]
(b)the subject of an inquiry by the Tribunal;[95]
(c)any person joined as a party;[96] or
(d)a person specified in the VCAT Act or the relevant enabling enactment as a party.[97]
[94]VCAT Act, s 59(1)(b)(ii).
[95]VCAT Act, s 59(1)(a)(ii).
[96]VCAT Act, ss 59(1)(a)(iii), (b)(iii), 60.
[97]VCAT Act, s 59(1)(a)(iv), (b)(iv). See, eg, Planning and Environment Act 1987, ss 39(3), 83, 149(3); Privacy and Data Protection Act 2014, s 74; Guardianship and Administration Act 2019, s 25.
The wide range of circumstances in which the powers in s 78(2) fall to be applied supports a broad and flexible reading of the power in s 78(2)(b), rather than one that is narrow and technical. These circumstances include where there are multiple parties with a range of different interests in the subject matter, and where there are claims made by more than one party to the proceeding. The structure of s 78(2), with its distinction between an offending party who is the applicant and one who is not the applicant, enables the Tribunal to make an appropriate order in the whole range of circumstances that may arise in proceedings within its diverse jurisdiction. It is significant that the powers under s 78(2)(b) are far broader than the powers under s 78(2)(a) and include the power to ‘make any appropriate orders’ and to order that the party causing the disadvantage be struck out of the proceeding. We are reluctant to read down s 78(2)(b) in a way that might prevent the Tribunal from dealing with the consequences for the proceeding of the disadvantageous conduct of a respondent to one part of that proceeding.
Fourth, and perhaps most importantly, it is important to consider the purpose of s 78. Section 35(a) of the Interpretation of Legislation Act directs us to adopt a construction that would promote the purpose or object underlying the Act. The purpose of the VCAT Act is to establish the Tribunal as a low cost and informal forum with flexible procedures to achieve a just result in the most efficient way. That is an uncontroversial and well-supported proposition,[98] which Concrete did not dispute. More specifically, s 78 provides the Tribunal with powers designed to further the overall purpose of the VCAT Act, in circumstances where a party is conducting a proceeding in a way that disadvantages another party to the proceeding. We consider that the purpose of that section is to provide the Tribunal with the ability to make such orders as it considers are appropriate in response to the disadvantageous conduct of a party. A narrow, technical interpretation of s 78(2) would potentially limit the Tribunal’s powers and thus frustrate the purpose of the section. Furthermore, a narrow and technical interpretation would not further the purpose of the VCAT Act. In contrast, the broader, more flexible construction advanced by the Ingleses is more likely to achieve the purpose of the VCAT Act and of s 78.
[98]See, eg, VCAT Act, s 98(1); Director of Housing v Sudi (2011) 33 VR 559, 564 [19] (Warren CJ); [2011] VSCA 266; Victoria, Parliamentary Debates, Legislative Assembly, 28 March 2018, 920 (Martin Pakula).
For those reasons, we consider the judge’s construction of s 78(2) of the VCAT Act to be correct. It accords with the text of the provision, read in its context, and is the interpretation that best achieves the purpose of the VCAT Act. That construction permits the term ‘proceeding’ in s 78(2) to mean ‘the entire proceeding or some part thereof’, depending on the orders that are appropriate to do justice between the parties in the circumstances of the particular case. Thus the Tribunal has the power under s 78(2)(b) to make orders at the request of an applicant in the proceeding who is disadvantaged by the conduct of another party in respect of all, or any part, of the proceeding affected by that conduct.

Can the Tribunal’s reasons be appealed?

In addition to seeking leave to appeal from the s 78 order, Concrete sought leave to appeal from the s 120 order, emphasising that it did not require an extension of time for that application. However, it did not seek to set aside the Tribunal’s order refusing the s 120 application. Rather, it sought to impugn the view expressed by the Tribunal in its s 120 reasons that the s 78 order had determined the whole proceeding — both Concrete’s claim and the Ingleses’ counterclaim.[99] The judge considered the Tribunal’s view to be correct, and also doubted that an alleged error in the reasons alone, not reflected in the orders, was a proper basis for an appeal under s 148 of the VCAT Act.[100]
[99]VCAT s 120 Reasons, [75], set out at [31] above.
[100]Reasons, [140], set out at [58] above.
For the reasons already given, we agree with the judge that the Tribunal’s s 78 order determined the entire proceeding, both claim and counterclaim.
We consider next whether leave to appeal from the s 120 order should also be refused on the separate ground that no appeal lies from the reasons given by the Tribunal for the s 120 order.

Concrete’s submissions

Concrete’s starting point was that s 148(1) of the VCAT Act permits an appeal on a question of law ‘from an order of the Tribunal in the proceeding’, and that s 117(6) provides that the reasons for an order form part of an order. On that basis, Concrete submitted that the s 120 reasons were part of the s 120 order; that is, they were a component of the order and not extrinsic to it. Provided that a question of law can be articulated, an appeal lies under s 148(1) from the reasons that form part of the Tribunal’s order. The requirement for a question of law to be identified is a barrier to appeals from mere findings of fact.
Concrete said that this Court’s decision in O’Bryan v Lindholm (‘O’Bryan’)[101] was distinguishable from this case, because it involved a different right of appeal under a different statute. O’Bryan was concerned with the availability of an appeal under s 17(2) of the Supreme Court Act 1986 from a determination of a judge of the Trial Division, and not the nature and scope of an appeal under s 148(1) of the VCAT Act from an order of the Tribunal. Unlike s 17(2) of the Supreme Court Act, ss 117(6) and 148(1) of the VCAT Act suggest that an appeal right extends to the reasons for an order, because the reasons form part of the order.
[101](2024) 74 VR 496; [2024] VSCA 130 (‘O’Bryan’).
Unlike the applicant in O’Bryan, Concrete did not seek to set aside factual findings made by the Tribunal. Rather, it sought to change the result, being the Tribunal’s determination that Concrete’s claim was at an end. It submitted that that determination was not a mere step along the way. It sought to characterise what occurred as, ‘in effect’ the Tribunal ‘declining to exercise jurisdiction’ in relation to its claim, which was otherwise validly before the Tribunal.
Concrete argued that the Supreme Court authority relied on by the Ingleses was obiter and not persuasive, because it did not disclose any consideration of s 117(6) of the VCAT Act.[102] It said that the authorities relied on did not, ultimately, support the proposition that an appeal under s 148 is from an order of the Tribunal and not from its reasons.[103]

The Ingleses’ submissions

[102]Marke v Victoria Police [2021] VSC 483, [115] and [116] (O’Meara J) (‘Marke’).

[103]Referring to Goodrich v Racing Victoria Racing Appeals and Disciplinary Board [2019] VSC 248, [85] (Niall JA) (‘Goodrich’); Dodoro v Knighting (2004) 10 VR 277, 284 [26] (Callaway JA); [2004] VSCA 217; King v Lintrose Nominees Pty Ltd (2001) 4 VR 619, 627 [22] (Callaway JA); [2001] VSCA 140 (‘King’).

The Ingleses accepted that O’Bryan concerned the availability of an appeal under s 17(2) of the Supreme Court Act and the meaning of ‘determination’ in that section. However, the Court reviewed the authorities and policy considerations in support of the principle that an appeal is concerned with changing the result, rather than correcting findings made or reasons given as a step along the way.[104] The Ingleses submitted that those considerations applied equally to an appeal under s 148 of the VCAT Act, and that the text of s 117(6) did not expressly provide for a right of appeal from reasons as distinct from orders. The consequences of interpreting it to have that effect would undermine principles of finality referred to in O’Bryan.
[104]O’Bryan (2024) 74 VR 496, 515–7 [90]–[95] (Kennedy, Walker and Macaulay JJA); [2024] VSCA 130.
Further, the Ingleses referred to Supreme Court authority that, notwithstanding the form of s 117(6) of the VCAT Act, an appeal under s 148 is from an order of the Tribunal and not from its reasons.[105] They submitted that the Tribunal’s observations at [69] to [77] of the s 120 reasons did not affect the dismissal of the s 120 application, and that an appeal from those observations could not change the orders that were made.

Consideration

[105]Referring to Marke [2021] VSC 483, [116] (O’Meara J).

Section 148(1) of the VCAT Act provides that a party to a proceeding may appeal on a question of law from an order of the Tribunal in the proceeding, with leave. Section 116 requires an order of the Tribunal to be in writing and authenticated in accordance with the rules, while s 117 obliges the Tribunal to give reasons for any order it makes, other than an interim order.
In that context, s 117(6) provides that the reasons for an order, whether oral or written, form part of the order. While the purpose of s 117(6) is not stated, it may have been intended to reverse the common law position that reasons do not form part of the record of a decision.[106]
[106]Craig v South Australia (1995) 184 CLR 163, 180–1 (the Court); [1995] HCA 58. Cf Administrative Law Act 1978, s 10.
The Tribunal’s observations in its s 120 reasons about the effect of the s 78 order were correct. We do not accept Concrete’s submission that the Tribunal’s observations about the effect of the s 78 order were a determination that Concrete’s claim had been summarily disposed of and, but for the observations, Concrete’s claim would have remained on foot. As we have explained, the s 78 order determined both the claim and the counterclaim in the proceeding.
Even if the Tribunal’s observations had been wrong, they were only included in the s 120 reasons for completeness. They were not dispositive of the s 120 application, which was dismissed because of Concrete’s unexplained and inexcusable delay in making the s 120 application and the prejudice suffered by the Ingleses as a result of the delay.[107]
[107]VCAT s 120 Reasons, [64]–[68], set out at [30] above.
We share the judge’s doubt that an appeal lies under s 148(1) from an error in reasons that is not reflected in any order of the Tribunal. As this Court observed in O’Bryan, there is ‘longstanding jurisprudence concerning the nature of an “appeal” as something which is concerned with changing the result (usually the orders) affecting the rights of the parties’, as distinct from findings made or reasons given.[108] This jurisprudence is consistent with several decisions in the Trial Division, holding that an appeal does not lie from the Tribunal’s reasons for an order.[109]
[108]O’Bryan (2024) 74 VR 496, 515 [90] (Kennedy, Walker and Macaulay JJA); [2024] VSCA 130.
[109]Wright v VCAT [2001] VSC 35, [9] (Gillard J); AG Advanced Construction Pty Ltd v Shao [2018] VSC 116, [62] (Daly AsJ); Marke [2021] VSC 483, [116] (O’Meara J). See also Goodrich [2019] VSC 248, [85] (Niall JA). While this decision was overturned by the Court of Appeal in Goodrich v Racing Victoria Racing Appeals and Disciplinary Board [2020] VSCA 110, no criticism was made of the statement of principle that an appeal under s 148 is from an order of the Tribunal, not from its reasons.
Further, even if Concrete had been able to appeal from the observations in theory, in practice they made no difference to the outcome of the s 120 application. In those circumstances, it is most unlikely that leave to appeal would have been granted.
Finally, we do not accept that the Tribunal’s observations were a refusal to exercise jurisdiction. As Concrete acknowledged, it had not taken any formal step in relation to its claim (even though it now seeks to say that the claim remains on foot). It had not sought timetabling orders, for example, or sought to have the Tribunal bring on a hearing in relation to its claim. In the absence of some request of that kind, we do not consider it appropriate to characterise the Tribunal’s obiter dicta observations in the s 120 reasons as a refusal to exercise jurisdiction. Rather, the Tribunal had already exercised its jurisdiction in relation to Concrete’s claim by determining the proceeding (including Concrete’s claim) in favour of the Ingleses.

Other orders

The conclusions we have reached mean that all three of Concrete’s grounds of appeal must fail:
(a)As to Ground 1, the judge’s construction of s 78(2)(b)(i) of the VCAT Act was correct, and the construction advanced by Concrete cannot be accepted.
(b)As to Ground 2, the judge was correct to find that an extension of time was required to appeal from the s 78 order. The s 78 order determined Concrete’s claim, and it was not open to Concrete to appeal from the Tribunal’s observations to that effect in its reasons for the s 120 order.
(c)As to Ground 3, no error has been shown in the judge’s refusal to extend time. The judge found that there was no acceptable explanation for Concrete’s delay in seeking leave to appeal the s 78 order, and that its delay had caused significant prejudice to the Ingleses. These findings were open — indeed compelled by — the evidence before the judge. Further, the judge was correct to find that the appeal would have had limited merit.
There is a further reason why Concrete’s application for leave to appeal must be refused. Concrete did not seek to disturb the Tribunal’s finding, expressed in the preamble to the s 78 order, that it was conducting the proceeding in a way that unnecessarily disadvantaged the Ingleses within the meaning of s 78(1) of the VCAT Act. The finding clearly related to the entire proceeding, not only the Ingleses’ counterclaim. The consequence of the finding was that the Tribunal was empowered to make any of the orders set out in s 78(2), including an order under s 78(2)(a) dismissing the proceeding. Although the Tribunal did not express the s 78 order to have been made under s 78(2)(a), the preconditions for the exercise of that power were satisfied.
There are powerful reasons to refuse leave to appeal (and an extension of time in which to seek leave to appeal) in respect of a claimed error that could have made no difference to the outcome. Even if Concrete’s interpretation of s 78(2)(b)(i) of the VCAT Act had been correct, the Tribunal’s only error would have been its failure to specify s 78(2)(a) as the source of its power to dismiss Concrete’s claim. That would have been an error of form, not substance, which would not have justified granting leave to appeal, let alone the extension of time that Concrete required.

Disposition

For those reasons, we would refuse leave to appeal.
Finally, for the assistance of the Tribunal and the parties to a proceeding before the Tribunal, we emphasise that it is important that the nature and effect of orders under s 78(2) are clear and enforceable. Although we have found that the Tribunal intended to dismiss the claim and to allow the counterclaim, and that its order was authorised by s 78(2)(b), the meaning of the order made in this case was not as clear as it should have been. A great deal of disputation would have been avoided if the Ingleses had sought, and the Tribunal had made, orders under s 78(2) that specified the part or parts of the proceeding being dismissed or otherwise determined and the parties affected by such orders. The intended effect of the s 78 order would have been clear beyond argument if the Tribunal had framed it as an order under s 78(2)(a) dismissing Concrete’s claim and under s 78(2)(b)(i) determining the Ingleses’ counterclaim in their favour, with quantum to be assessed.
---

[2025] VSCA 218

11 September 2025