The Court referred an extension of time application (seeking leave to appeal a VCAT conduct determination approximately four years out of time) to the Court of Appeal under s 17B(2) of the Supreme Court Act 1986 (Vic), rather than determining the respondent's summary dismissal application. The referral was made because of significant overlap in legal and factual issues with a second extension of time application already pending in the Court of Appeal concerning the penalty determination from the same disciplinary proceedings, and to avoid fragmentation of appeal processes. The Court noted considerable merit in the Commissioner's argument — consistent with Chen v Victorian Legal Services Commissioner [2020] VSC 842 — that conduct determinations (as opposed to orders) are not appealable under s 148 of the VCAT Act, but left this question and the related issues of bias, waiver, and nullity for the Court of Appeal to resolve.
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