Both of the applicant building practitioner's interlocutory applications were dismissed: the application under s 75 of the VCAT Act to strike out grounds relied on by the respondent regulator in its disciplinary decision, and the application under s 78 to have the proceeding determined in the applicant's favour on the basis the regulator's conduct caused unnecessary disadvantage. The Tribunal held that s 75 does not empower it to strike out the 'grounds' underpinning a decision under review in the Tribunal's review jurisdiction, because those grounds are not 'the proceeding' or 'part of the proceeding' — they are the factual predicates for the reviewable decision, not the cause of action itself. On s 78, the Tribunal confirmed the provision operates in the present tense, requiring ongoing unnecessary disadvantage, and that past procedural non-compliance that has been remedied does not satisfy the threshold; even if it did, summarily determining a disciplinary review without hearing evidence would be a remedy of last resort, particularly where the enabling legislation has public interest objectives requiring the Tribunal to reach the correct and preferable decision on the merits.
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