Caspersz v Garry & Warren Smith Pty Ltd
[2025] VSC 410
•9 July 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2023 00577
S ECI 2023 03491
S ECI 2023 04461
| ADRIAN CASPERSZ | Applicant/Appellant |
| v | |
| GARRY & WARREN SMITH PTY LTD (ACN 004 753 333) & ORS (according to the attached Schedule) | Respondents |
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JUDGE: | Watson J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 June 2025 |
DATE OF JUDGMENT: | 9 July 2025 |
CASE MAY BE CITED AS: | Caspersz v Garry & Warren Smith Pty Ltd & Ors |
MEDIUM NEUTRAL CITATION: | [2025] VSC 410 |
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JUDICIAL REVIEW – Application for leave to appeal dismissal of proceeding by Victorian Civil and Administrative Tribunal – Various questions of law and extensive grounds of appeal – Various baseless and unsubstantiated allegations made against the Tribunal – Leave to appeal refused for all but one ground – Whether Tribunal correctly refused application to cross-examine witnesses – Leave to appeal granted – No unfairness in refusing application to cross-examine witnesses – Appeal dismissed – Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 62, 78, 102 and 148 – Concrete Construction Systems Pty Ltd v Inglese [2024] VSC 266, Leon Holdings Pty Ltd v O’Donnell [2009] VSC 430 considered; Bahl Enterprises Pty Ltd v Sikandar [2025] VSC 394, Bell Corp Victoria Pty Ltd and Ors v Stephenson [2003] VSC 255, ACN 115 918 959 Pty Ltd v Moulieris [2024] VSCA 71, Patsuris v Gippsland and Southern Rural Water Corporation (2016) 218 LGERA 167; [2016] VSCA 109, Rugolino v Howard [2010] VSC 590 referred to.
JUDICIAL REVIEW – Appeal from decision of Associate Justice – Application for leave to appeal procedural orders of Victorian Civil and Administrative Tribunal – Associate Justice dismissed application for leave – Associate Justice found no purpose served by proposed appeal in circumstances where Tribunal had dismissed proceeding and applicant had sought leave to appeal dismissal – No error shown in Associate Justices conclusion – Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic).
JUDICIAL REVIEW – Application for leave to appeal various orders consequent upon dismissal of proceeding by Victorian Civil and Administrative Tribunal – Leave to appeal refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant/Appellant | In person | |
| For the First and Third Respondents | No appearance | Maddocks |
| For the Second Respondent | Ms F Cockram | CIE Legal |
HIS HONOUR:
Mr Caspersz has three proceedings, each against the same three respondents:
(a) Garry & Warren Smith Pty Ltd;
(b) Honda Australia Pty Ltd (‘Honda’); and
(c) Garry & Warren Smith Group.
Each of the proceedings arise from Mr Caspersz’s dissatisfaction with orders made by the Victorian Civil and Administrative Tribunal (‘VCAT’ or ‘the Tribunal’).
The first and third respondents did not seek to be heard before me and did not participate in the hearing of these matters. They have indicated they will abide with whatever decision the Court makes.
Honda opposed Mr Caspersz’s claims for relief.
The three proceedings
Proceeding S ECI 2023 00577 is an appeal from a decision of Irving AsJ made on 15 September 2023.
On 14 February 2023 Mr Caspersz sought leave under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’) to appeal various orders made in a VCAT proceeding between himself and the three respondents (‘the VCAT proceeding’). The orders from which Mr Caspersz sought leave to appeal were procedural orders relating to the hearing of an application by Honda to summarily dismiss or strike out Mr Caspersz’s claim in the VCAT proceeding (‘the procedural orders’). Honda sought dismissal of the application for leave to appeal under r 4.08 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic) (‘Miscellaneous Proceedings Rules’).
The Associate Justice heard argument on 11 August 2023 regarding Honda’s application and on 15 September 2023 delivered reasons and made orders dismissing Mr Caspersz’s application for leave to appeal.[1] Mr Caspersz now appeals from that decision.
[1]Caspersz v Garry & Warren Smith Pty Ltd & Ors [2023] VSC 555.
In proceeding S ECI 2023 03491 Mr Caspersz seeks leave to appeal from orders made in the VCAT proceeding on 28 June 2023. The critical order made on that day was an order dismissing Mr Caspersz proceeding as against Honda.
In proceeding S ECI 2023 04461 Mr Caspersz seeks leave to appeal from orders made on 24 August 2023 in the VCAT proceeding. The critical order made on that day was an order that Mr Caspersz pay Honda’s costs of the proceeding.
For ease of reference and without purporting to describe in complete terms the orders the subject of the various proceedings, in these reasons I will describe:
(a) Proceeding S ECI 2023 00577 as the ‘procedural orders appeal’;
(b) Proceeding S ECI 2023 03491 as the ‘dismissal appeal’; and
(c) Proceeding S ECI 2023 04461 as the ‘costs order appeal’.
The materials filed in relation to the proceedings are voluminous. The appeal book in the procedural orders appeal is 1,452 pages long, the appeal book in the dismissal appeal is 2,900 pages long and the appeal book in the costs order appeal is 2,710 pages long.
Mr Caspersz’s amended notice of appeal in the dismissal appeal runs to 40 pages of single-spaced type in which Mr Caspersz enunciates some 17 questions of law with corresponding grounds. His grounds are generally in narrative form running over several paragraphs. His notice of appeal in the procedural orders appeal identifies seven alleged errors in the decision of the Associate Justice. Again, these grounds are supported by paragraphs in narrative form. In the costs appeal, Mr Caspersz’s notice of appeal runs for 12 pages of single-spaced type identifying seven questions of law with corresponding grounds which, again, are outlined in narrative form, often running over many paragraphs.
Despite this volume of material, one thing is apparent and that is that the fate of the dismissal appeal is essentially determinative of the other two appeals because:
(a) If Mr Caspersz is successful in that appeal:
(i) The procedural orders appeal will be rendered otiose; and
(ii) It would follow that Honda would not be entitled to a costs order and so, Mr Caspersz would succeed in relation to that aspect of the costs order appeal; and
(b) In the event that Mr Caspersz is unsuccessful:
(i) the procedural orders appeal would be rendered otiose; and
(ii) for reasons which are discussed below, most of the costs order appeal would fall away.
For the reasons which follow, I have determined that Mr Caspersz should not be granted leave to appeal in relation to:
(a) all grounds of the dismissal appeal, with the exception of ground 6;
(b) the procedural orders appeal; and
(c) the costs order appeal.
I would grant leave in relation to ground 6 of Mr Caspersz’s amended notice of appeal in the dismissal appeal but for the reasons which follow, would dismiss the appeal on that ground.
Procedural history
The procedural history of the VCAT proceeding and various appeals to this Court are comprehensively set out by O’Meara J in Caspersz v Garry and Warren Smith Pty Ltd & Ors (No 2) (‘Caspersz (No 2)’).[2] I gratefully adopt that history. Below I set out those matters relevant to these proceedings.
[2][2024] VSC 8, [1]–[26] (‘Caspersz (No 2)’).
Caspersz (No 2) dealt with an application for leave to appeal VCAT orders made by Senior Member Vassie on 11 August 2022. Leave to appeal was refused.
Relevantly, the 11 August 2022 orders provided:
2. By 22 September 2022 the applicant must file and serve a document headed ‘Revised Points of Claim’ which in accordance with paragraph 16(b) and (c) of the order dated 6 August 2021, is one document understandable in itself without reliance on any other document and is in numbered paragraphs.
[The order then sets out an example as to how such points of claim may be structured].
…
7. There shall be a further directions hearing in the proceeding on a date as soon as practicable after 22 September 2022 at the time to be fixed before Senior Member A Vassie (if available) with two hours being allowed.
…
10. If the applicant has not complied with paragraph two of this order by 22 September 2022 either respondent may make a further application for an order summarily dismissing or striking out the proceeding, upon notice given to the applicant a reasonable time before the date of the further directions hearing, and the application may be heard and determined during the further directions hearing.
Mr Caspersz did not file a document in accordance with paragraph 2 of the 11 August 2022 orders by 22 September 2022.
A directions hearing was held in the VCAT proceedings on 27 October 2022. At that hearing:
(a) Mr Caspersz applied for a stay of the 11 August 2022 orders on the basis of his application for leave to appeal those orders in this Court which had been initiated on 20 September 2022; and
(b) Honda’s representative made an oral application to strike out the proceeding, which the Tribunal refused to deal with because Honda had not given Mr Caspersz notice of the application.
On 15 December 2022 the Senior VCAT member gave reasons for Mr Caspersz’s application for a stay of the 11 August 2022 orders. The Tribunal refused the application for a stay on the basis that the Supreme Court was seised of the matter and Mr Caspersz should make his application in the Supreme Court. In his decision Irving AsJ determined that it was arguable that this aspect of VCAT’s decision was in error.[3]
[3][2023] VSC 555, [55].
On 15 December 2022 the Tribunal made the following orders:
1. The application for a stay of interlocutory orders is dismissed without any adjudication of its merits.
2. Second respondent’s application for summary dismissal or striking-out of the proceeding is to be listed for hearing on a date after 10 April 2023 before me (if available) with 2 hours being allowed for the hearing.
3. By 24 February 2023 the second respondent may file and serve on all other parties any affidavit and/or written submission in support of its application.
4. By 24 March 2023 any other party may file and serve on all other parties any affidavit and/or written submissions concerning the second respondent’s application.
In the procedural orders appeal Mr Caspersz sought leave to appeal from each of the orders made by VCAT on 15 December 2022. On 21 December 2022 VCAT made further procedural orders in chambers, those orders are:
1. When communicating with VCAT the parties must comply with the following directions:
a. All emails must be sent to [email protected]
b. All parties who have not already done so must provide their email address to VCAT and to all other parties. They may do so at the time they provide the documents as directed in these orders.
c. Any party contacting VCAT by email must put the VCAT reference number in the subject line of the email.
d. Any party contacting VCAT by email must number any attachment to the email and arrange all attachments in proper sequence into one single PDF document.
e. Any party corresponding with VCAT must include (i.e. copy or “cc”) all other parties into that correspondence.
2. At least two weeks before the hearing each party must send:
a. by post or email to every other party and
b. by post to VCAT
a copy of all documents on which they intend to rely at the Section 75 hearing, including any written submissions.
3. The documents sent to VCAT and to the other parties must contain a cover sheet identifying the name of the party sending the documents and the VCAT reference number and must be sorted into a proper sequence or chronological order and given page numbers.
4. The parties must access the Section 75 hearing at the allocated time and follow the instructions provided in the email from VCAT. VCAT will email the parties instructions to access the hearing two (2) business days prior to the hearing.
5. If a party fails to access the video or teleconference hearing at the allocated time, the hearing will proceed in the absence of that party and orders will still be made.
In his procedural orders appeal Mr Caspersz sought leave to appeal from each of the orders made on 21 December 2022.
On 17 January 2023, following correspondence from Honda indicating that it wished to rely on s 78 of the VCAT Act rather than s 75, VCAT made the following orders:
1. The principal registrar is directed to send to the parties a fresh notice for the hearing listed for 6 June 2023 at 2.00pm that is headed “Notice of Section 78 hearing” (not “Section 75 hearing”) and that sets out section 78 of the Victorian Civil and Administrative Tribunal Act 1998, not section 75.
2. Paragraphs 2 and 4 of the order dated 21 December 2022 are amended by deleting “Section 75” and substituting “Section 78”.
Mr Caspersz also sought leave to appeal from the VCAT orders of 17 January 2023 in his procedural orders appeal.
On 8 February 2023 JR Baker dismissed an application made by Mr Caspersz to the Supreme Court seeking a stay of the VCAT orders of 11 August 2022.
On 14 February 2023 Mr Caspersz instituted the procedural orders appeal. On the same day Mr Caspersz emailed VCAT seeking a stay of the procedural orders. On 22 February 2023 VCAT made the following orders:
1. The principal registrar is directed to list for hearing on a date to be fixed the applicant’s application for a stay of its Orders made 15 December 2022, 21 December 2022 and 17 January 2023 (contained in his email dated 2.05pm on 17 February 2023 and its attachments) on a date to be fixed.
2. Whilst the Tribunal notes that in his email dated 2.05pm on 17 February 2023 the applicant asserts that “the contents outlined in (his) Notice of Appeal… more than sufficiently demonstrate why VCAT should… grant the stay”, no later than 21 days before that hearing, the applicant shall file with the Tribunal and serve on all other parties a copy of any additional documents upon which he intends to rely in support of that application for a stay.
3. No later than 7 days before that hearing, each respondent shall file with the Tribunal and serve on all other parties a copy of any documents upon which it intends to rely in opposition to the application for a stay.
As will be seen in the discussion below, Mr Caspersz complains that his February 2023 application for a stay of the procedural orders was not listed before Honda’s s 78 application.
Also on 22 February 2023, Mr Caspersz filed a notice of appeal from the orders made by JR Baker. That appeal was heard on 23 May 2023. On that day Moore J dismissed the notice of appeal. His Honour provided reasons for that dismissal on 7 June 2023.[4]
[4]Caspersz v Garry & Warren Smith Pty Ltd [2023] VSC 305.
On 17 May 2023 VCAT held a directions hearing where Honda’s s 78 application (‘the dismissal application’) was listed for hearing on 6 June 2023 and a direction was made for the filing of materials by 2 June 2023.
The dismissal application came on for hearing on 6 June 2023. At that hearing DP Lulham ruled that a number of summonses which Mr Caspersz had purported to serve would not be dealt with because no conduct money had been provided at the time they were purportedly served. Mr Caspersz then made an application to DP Lulham that he disqualify himself from hearing the dismissal application on the basis of a reasonable apprehension of bias. Deputy President Lulham rejected that application. The dismissal application was then heard with counsel for Honda making oral submissions followed by oral submissions from Mr Caspersz.
On 28 June 2023 VCAT acceded to Honda’s s 78 application. On that day DP Lulham made orders dismissing Mr Caspersz’s VCAT proceeding insofar as it related to Honda and gave reasons (‘the dismissal reasons’). VCAT’s orders made 28 June 2023 were as follows:
1. The applicant’s application that I recuse myself from the hearing is dismissed.
2. The proceeding is dismissed against the second respondent.
3. The second respondent’s application for costs, which was made orally in the hearing, is listed for hearing at 10.00am on 27 July 2023, with an estimated duration of 60 minutes, to be conducted via Zoom. Because at that hearing the parties will be heard on the question of whether an order should be made that the applicant pay the second respondent’s costs, but not the assessment of any amount should such an order be made, the second respondent is not required to file and serve an itemised bill of costs before that hearing, but shall file with the Tribunal and serve on the applicant an affidavit or statutory declaration, by 20 July 2023, stating the periods of time during which the second respondent says that it had legal representation.
On 26 July 2023 Mr Caspersz instituted the dismissal appeal. In the dismissal appeal Mr Caspersz seeks leave to appeal from each of the orders made by the Tribunal on 28 June 2023.
On 27 July 2023 the Tribunal heard Honda’s application for costs. At that hearing Mr Caspersz made a further application that DP Lulham recuse himself from hearing the matter. The Deputy President rejected that application. Mr Caspersz then made an application for a stay of the orders made 28 June 2023. The Tribunal refused that application. Mr Caspersz objected to Honda’s reliance on an affidavit of Mr Joel Bierenkrant because that email had been filed and served at 4.06pm on 20 July 2023, rather than 4.00pm as required by VCAT’s rules. The Tribunal granted an extension of time for Honda to rely on the affidavit.
In reasons delivered 24 August 2023 regarding the costs application (‘the costs reasons’), DP Lulham describes what happened next in the following terms:
Commencing at around 11.25am Honda’s Counsel made submissions in support of its application for costs. Mr Caspersz made his arguments from around 12.00 noon until about 1.05pm when we broke for lunch, and then from around 2.00pm until around 3.00pm. I summarise his relevant points below, which were few. Mr Caspersz chose to spend much of his time in the hearing insulting the Tribunal and the Supreme Court, and setting out conspiracy theories.[5]
[5] Caspersz v Garry & Warren Smith Proprietary Limited [2023] VCAT 987, [7].
On 24 August 2023 the Tribunal made two separate sets of orders. The first set of orders were as follows:
1. The applicant’s application that I recuse myself from this hearing is dismissed.
2. The applicant’s application for a stay of the Order made 28 June 2023 is dismissed.
3. To the extent necessary, the second respondent’s application for leave to be represented by legal practitioners at today’s hearing is granted.
4. As to the applicant’s objection to the filing and service of the affidavit of Joel Bierenkrant affirmed 20 July 2023, the time limit in paragraph 3 of the Order made 28 June 2023, for the second respondent to file and serve an affidavit, is extended by 10 minutes, and the affidavit of Joel Bierenkrant affirmed 20 July 2023 is declared to have been validly filed and served pursuant to that paragraph.
5. The applicant shall pay the second respondent’s costs, paid or incurred to external lawyers in the period 12 April 2022 to date, including in and in relation to this costs hearing (“the relevant period”), to be assessed by the Costs Court on a standard basis on the County Court Scale. These costs shall include the second respondent’s costs of and incidental to all interlocutory hearings in the relevant period, whether or not the Order made at a hearing expressly said that costs were reserved or that the second respondent had leave to be represented by a legal practitioner or member of Counsel. These costs shall include the second respondent’s costs incurred by reason of its legal practitioners receiving and perusing the documents served upon them by the applicant, and the costs of both CIE Legal and counsel in respect of those matters for which counsel was briefed.
In the costs order appeal Mr Caspersz appeals from each of these orders.
The second set of orders made 24 August 2023 are as follows:
The Tribunal orders
1. The applicant’s email dated 1:39pm on 8 August 2023 does not commence an application for a stay.
2. The stated “formal request” in the applicant’s email dated 1:39pm on 8 August 2023 is a nullity.
3. The principal registrar is directed not to list for hearing any application for a stay of the Tribunal’s Order made 28 June 2023 on the basis of the applicant’s email dated 1:39pm on 8 August 2023.
4. The principal registrar is directed to place the applicant’s email dated 1:39pm on 8 August 2023 on the Tribunal’s file.
5. As this proceeding continues as between the applicant and the first and third respondents, the principal registrar is directed to list a directions hearing in relation to that aspect of the proceeding on a date to be fixed.
Mr Caspersz seeks leave to appeal from orders 1, 2, 3 and 5 of this second set of orders.
The dismissal appeal
Section 78 and the dismissal decision
Section 78 of the VCAT Act provides as follows:
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.
In the dismissal reasons the Tribunal:
(a) after an introduction, commences with a discussion of procedure in VCAT;
(b) sets out s 78 of the VCAT Act;
(c) rejects the application for recusal;
(d) deals with Mr Caspersz’s summonses to witnesses;
(e) sets out an extensive history of the VCAT proceeding; and
(f) extensively canvasses Honda’s affidavit material and submissions in support of the dismissal application and Mr Caspersz’s affidavit material and submissions in opposition to it.
Having regard to the material before him the Deputy President concludes that Mr Caspersz’s conduct of the proceeding falls within s 78(1)(a), (c), (d) and (f) of the VCAT Act. The Tribunal rejected Honda’s submission that Mr Caspersz’s conduct fell within s 78(1)(e) of the VCAT Act.
His reasons for those conclusions are summarised in his introduction:
Having considered:
(a) the relevant events in the proceeding,
(b) the documents filed and served by the parties for use in the hearing of the section 78 application, and
(c) the submissions made by the parties in that hearing
I have concluded that Mr Caspersz has conducted this proceeding in a way that has unnecessarily disadvantaged Honda and the other respondents and that he has done so deliberately. I find that Mr Caspersz has demonstrated that he has no insight into the impact on the respondents of his conduct in the proceeding; that he takes no responsibility for his actions but seeks to deflect responsibility to Honda; that he has no real understanding of the litigation process which he has instigated by issuing this proceeding and that he makes pointless interlocutory applications because he ‘can’ do so, rather than because he has a genuine need for an interlocutory order; that he expresses himself in formulaic jargon in a manner which obscures rather than conveys meaning, which causes the respondents to unnecessarily incur expense and inconvenience; that he has proven to be unwilling to take any guidance from the Tribunal on how to conduct himself appropriately and has actively refused, rather than merely failed, to take appropriate steps in the proceeding; and that he has demonstrated that his vexatious, querulent and non-compliant behaviour will only continue if this proceeding against Honda were allowed to continue.
In view of the costs which Mr Caspersz has caused Honda to incur, by his actions, and the likelihood that he would continue to inflict unnecessary costs on Honda if the proceeding were allowed to continue against it, I have also concluded that it would not even be in Mr Caspersz’s interests for the proceeding to continue as between him and Honda.[6]
[6]Caspersz v Garry & Warren Smith Pty Ltd [2023] VCAT 739, [2]–[3] (‘Dismissal reasons’).
Having concluded that the circumstances in s 78(1) of the VCAT Act have been enlivened, the Tribunal then considers the appropriate remedial response:
I … see that section 78(2)(a) empowers the Tribunal to dismiss or strike out a proceeding when section 78 applies. Clearly, striking out a proceeding is less drastic than dismissing it, because when a proceeding is struck out there remains the possibility that it could be reinstated. Having weighed the circumstances carefully, I am satisfied that it is appropriate to dismiss Mr Caspersz’s proceeding against Honda, and not merely to strike it out.
In the knowledge that dismissing a proceeding without the Tribunal conducting a final hearing is a significant and unusual step, in that it deprives an applicant of their “day in court”, I have concluded that the only way to do justice between the parties is to dismiss the proceeding.[7]
[7]Ibid [6]–[7].
I turn to the specific grounds raised by Mr Caspersz below, but at the outset it is appropriate to record that having perused the materials before VCAT, I am satisfied that the Tribunal made no error in its approach to s 78 of the VCAT Act and that the conclusion it reached was open to it on the evidence before it.
The grounds – some introductory remarks
As noted above, Mr Caspersz raises 17 questions of law with corresponding grounds of appeal in relation to the dismissal appeal. The questions and grounds of appeal run to some 40 pages of single-spaced type. At the hearing before me Mr Caspersz gave his oral submissions for more than four hours. Despite the considerable length of his submissions and the volume of material on which he relies, it is apparent that, with one exception which I will come to, nothing which Mr Caspersz raises is sufficiently tenable to warrant a grant of leave.
A number of Mr Caspersz’s grounds and much of his oral submissions in one way or another sought to reagitate issues relating to the appropriateness of the 11 August 2022 orders. Mr Caspersz sought leave to appeal from those orders and leave to appeal was refused by O’Meara J. Mr Caspersz has evidently sought leave to appeal that decision, which application for leave has not yet been determined. In the circumstances, I can take no other course than to accept the validity of the orders made on 11 August 2022 and, to the extent to which Mr Caspersz seeks to impugn those orders as a basis for his grounds in this appeal, those grounds must necessarily be rejected.
Grounds 1 and 10
In these grounds Mr Caspersz argues that because on 27 October 2022 the legal representative for Honda only referred to a striking out application and not to a dismissal application, Honda was precluded from bringing a dismissal application under s 78 of the VCAT Act and VCAT’s orders permitting it to bring such an application were made in error. There is nothing in this ground. Whatever was said at the 27 October 2022 hearing, it is plain that by the hearing of 6 June 2023 Mr Caspersz was on notice that Honda was bringing an application for dismissal or strike out under s 78 of the VCAT Act. There is no unfairness to Mr Caspersz from the orders which were made by the Tribunal permitting an application under s 78 for a dismissal of the proceeding and there was no unfairness, in the circumstances, in proceeding with a hearing of that application on 6 June 2023 and the determination of that application on 28 June 2023.
Ground 2
Under this ground Mr Caspersz contends that VCAT erred by dismissing the proceeding as against Honda only.
First, he points to the language of s 78 of the VCAT Act which relevantly provides that the Tribunal may make an order ‘that the proceeding be dismissed or struck out’. There is a contrast in the language used in s 78 with the language used in ss 75 and 76 of the VCAT Act which both provide the Tribunal with the power to make an order ‘summarily dismissing or striking out all, or any part, of a proceeding’. That difference in language does not result in a construction of s 78 which precluded the Tribunal from dismissing as against Honda only. The order here does not determine ‘part of the proceeding’ in the sense that that phrase is used in ss 75, 76 and 77 of the VCAT Act.[8]
[8]Bahl Enterprises Pty Ltd v Sikandar [2025] VSC 394, [52]–[57].
In Concrete Construction Systems Pty Ltd v Inglese[9] Harris J said:
[9][2024] VSC 266.
…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.[10]
[10]Ibid [106]–[107] (citations omitted).
Her Honour’s discussion occurred in the context of a consideration of s 78(2)(b) but her characterisation of the ‘key focus’ of s 78 is apposite in relation to s 78(2)(a).
Section 78 of the VCAT Act is directed to action taken by a party to the proceeding that unnecessarily disadvantages another party to the proceeding. In cases where there are multiple parties and the conduct of one party was unnecessarily disadvantaging one other party only, it would make no sense to leave the Tribunal with an all or nothing choice between dismissal of the proceeding against all parties and no action. Having regard to the evident purpose of s 78, the construction for which Mr Caspersz contends is not open.
Mr Caspersz further says that the application was always conducted on the basis that Honda was applying for the entirety of the proceeding to be struck out or dismissed. He says that, as a result, it was not open to the Tribunal to dismiss the proceeding in relation to Honda only. In its submissions and material, Honda did describe its application as an application for the dismissal of ‘the proceeding’ under s 78 of the VCAT Act. However, in my view, nothing turns on this. It was plain to all parties and to Mr Caspersz that the first and third respondents were not bringing any application under s 78 of the VCAT Act and that it was only Honda who brought such an application. Again, having regard to the evident purpose of s 78 of the VCAT Act which is to remedy a situation where one party is conducting the proceeding in a way that unnecessarily disadvantages another party, a reasonable person standing in the shoes of Mr Caspersz, would have understood that Honda’s application was confined to the proceeding insofar as it related to Honda. Indeed, the evidentiary material, written submissions and oral submissions in the s 78 hearing are focused on demonstrating a disadvantage to Honda albeit, as I have indicated, those materials describe the application as an application to dismiss ‘the proceeding’.
In the circumstances, I am satisfied there was no unfairness to Mr Caspersz in the Tribunal determining Honda’s application on the basis that it was an application to dismiss the proceeding insofar as it related to Honda.
Ground 3
In Ground 3 Mr Caspersz alleges he was denied a fair hearing because VCAT did not hear his stay application regarding the procedural orders before it heard Honda’s s 78 application. There is nothing in this ground.
First, for reasons I will come to when dealing with the procedural orders appeal, that appeal was misconceived and hopeless. If a stay application had been heard against the procedural orders it is overwhelmingly likely that it would have been refused.
Secondly, a determination of the order in which to hear interlocutory applications in a proceeding is a matter of discretion relating to practice and procedure. There is no immutable rule that a stay application must be heard and determined before any other interlocutory application in a proceeding. Mr Caspersz has shown no error of the House v R[11] kind which demonstrates that the Tribunal’s exercise of its discretion regarding the timing of the hearing and determination of Mr Caspersz’s application for a stay of the procedural orders miscarried.
[11](1936) 55 CLR 499.
Thirdly, and most fundamentally, there is no indication that the failure to hear the stay application against the procedural orders resulted in any substantive unfairness to Mr Caspersz in the hearing of the dismissal application. Indeed, the procedural orders facilitated a fair hearing. They provided for the exchange of materials and for a hearing date which gave all parties ample time to properly prepare. Ultimately, with some variation as to the timing of the exchange of materials, that is what occurred.
Ground 3 fails.
Grounds 4, 7 and 16
These grounds all relate in some way to order 2 of 11 August 2022 that Mr Caspersz file and serve Revised Points of Claim by 22 September 2022 and the related order made the same day, that if Mr Caspersz did not comply with that order either respondent could make a further application for summary dismissal or striking out of the proceeding.
Ground 4 is that the Tribunal erred in finding that there was a need for better particulars of his claim. In effect, this ground is a collateral attack on the orders of 11 August 2022 in respect of which Mr Caspersz has already sought leave to appeal and failed. This ground should be rejected. Insofar as ground 7 relies on the same basis (that there was never a need for order 2 of 11 August 2022) it also should be rejected.
In ground 16 Mr Caspersz complains of VCAT’s characterisation of the order of 11 August 2022 as ‘self-executing’ in the dismissal reasons.[12] I accept that those orders were not ‘self-executing’ in the sense that term is usually applied. Mr Caspersz’s failure to comply with order 2 of the 11 August 2022 orders did not result in the immediate dismissal of his proceeding. The orders of 11 August 2022 were only self-executing in the more limited sense that Mr Caspersz’s failure to comply gave the respondents a right to make a further application for summary dismissal or striking out of the proceeding (a right they almost certainly had in the absence of such an order). I am satisfied that this is the sense in which DP Lulham described the orders of 11 August 2022 as ‘self-executing’ in the dismissal reasons.
[12]Dismissal reasons [126].
In this regard, I do not regard it as a precondition to the exercise of power under s 78 in this case that VCAT should have made or considered self-executing orders. The authorities emphasise that dismissing a claim under s 78 should be a last not a first resort.[13] In cases where the sole ground established under s 78(1) is failure to comply with an order and there has not been a history of default in relation to other orders, VCAT might sensibly conclude that self-executing orders provide an alternative remedy obviating the need to take the more drastic action of striking out or dismissing a proceeding.[14] That is not this case. Here the Tribunal found the grounds in s 78(1)(c), (d) and (f) were also made out and it is plain that it did not regard Mr Caspersz’s failure to comply with the order 2 of the 11 August 2022 orders as his only default.
[13]Bell Corp Victoria Pty Ltd and Ors v Stephenson [2003] VSC 255, [51] (‘Bell Corp’); ACN 115 918 959 Pty Ltd v Moulieris [2024] VSCA 71, [27] (McLeish JA, Walker JA, Macaulay JA).
[14]Bell Corp [73].
The Tribunal’s reasons make clear that its remedial response under s 78 of the VCAT Act was as a last resort.[15]
[15]Dismissal reasons [7], [126]–[127].
In any event, nothing turns on the description of the orders as ‘self-executing’. What matters is whether Mr Caspersz complied with the order to file Revised Points of Claim by 22 September 2022 and clearly he did not.
Mr Caspersz asserts in both ground 7 and ground 16 that he had a reasonable excuse for non-compliance with order 2 of 11 August 2022. First, in ground 16, he says he could not comply with the order because of the linkage to orders 16(b) and (c) made 6 August 2021. The reference to those earlier orders does not provide any basis on which Mr Caspersz could reasonably assert he was prevented from compliance with order 2 of the 11 August 2022 order. Secondly, Mr Caspersz asserts he had a reasonable excuse for non-compliance because he had sought leave to appeal the orders of 11 August 2022 and sought a stay of those orders. Seeking a stay is not the same as having a stay. Until the orders of 11 August 2022 were stayed (and they never were) Mr Caspersz was required to comply with them.
Grounds 7 and 16 should be rejected.
Ground 14
Section 64(1) of the VCAT Act provides as follows:
(1) Subject to the rules, the Tribunal is to be constituted for the purposes of any particular proceeding by 1, 2, 3, 4 or 5 members.
Mr Caspersz contends that because there have been more than five members of VCAT who have at various times presided over his matter that s 64(1) was breached. The subsection plainly goes to the constitution of the Tribunal at particular hearings from time to time. Relevantly, for the dismissal application the Tribunal was constituted by one member. Section 64 was not breached. This ground is hopeless.
Grounds 5 and 15
In ground 5 Mr Caspersz contends DP Lulham should have recused himself on grounds of actual and/or apprehended bias.
Ground 15 in some respects stands on its own. It is an assertion that DP Lulham dismissed Mr Caspersz’s proceeding as against Honda for the collateral purpose of disadvantaging him in his Supreme Court appeals. I deal with that ground in conjunction with ground 5 because it is illustrative of Mr Caspersz’s propensity to make serious allegations against members of VCAT without the slightest basis in fact.[16] The allegation is properly to be regarded as scandalous, it should never have been made and it is demonstrative of the sort of conduct which has unfortunately characterised Mr Caspersz’s conduct of the VCAT proceeding.
[16]Caspersz (No 2) [24]; Caspersz v Garry & Warren Smith Pty Ltd [2022] VCAT 1102, [20], [23]–[25] (and see below ground 5).
Before turning to the specifics of ground 5, it is appropriate to set out the basis on which Mr Caspersz made his application for recusal before DP Lulham (accurately summarised in the dismissal reasons):
Mr Caspersz’ application for recusal was made on three grounds:
(a) That I had a “conflict of interests” in that I know one of the officers of Garry & Warren Smith, Dale Smith, having attended Melbourne University Law School, when he did, in 1982. Mr Caspersz asserted that my “relationship” with Mr Smith “has continued up until this very day”, and that I had “remained in contact with Mr Smith on a personal level” as admitted by Mr Smith in a document which Mr Caspersz had filed.
(b) That I was “involved in another VCAT proceeding, in particular with (Mr Caspersz’s) wife, and that (my) behaviour in that proceeding is still left to be determined.”
(c) That during 2022 the President of the Tribunal wrote to Mr Caspersz in this proceeding, at a time when no hearings were being conducted in the proceeding, stating that Mr Caspersz could not pre-emptively seek reconstitution of the Tribunal under section 108 of the VCAT Act to remove me entirely from the proceeding, because in the absence of such hearings, the Tribunal had not been constituted. Mr Caspersz asserted that these letters implied that I was “not going to be involved in this VCAT proceeding and this is why Senior Member Vassie got involved from 8 June” 2022.[17]
[17]Dismissal reasons [13].
DP Lulham’s reasons for the dismissal of the recusal application were as follows:
(a) As to the first ground, when I asked Mr Caspersz to identify the document, or any evidence to support his assertion, he said that Mr Smith does not say that I have a relationship with him. This is an indication of the reckless way in which Mr Caspersz is prepared to make baseless allegations. I was incredulous that a party could found an application for recusal on an assertion that I had attended University with someone 41 years ago. After the hearing had ended, I recalled that I had finished my studies of Melbourne University before 1982. I do not know anyone called Dale Smith. This allegation by Mr Caspersz was entirely unfounded.
(b) As to the second ground, the proceeding referred to is C6184/2020, in which Mr Caspersz’s wife sues a bank. Mr Caspersz is not a party, but had filed the initiating Application, identifying himself as the applicant’s “legal representative”. At a directions hearing in that proceeding, I refused the applicant leave to be represented by Mr Caspersz, applying the criteria under section 62 of the VCAT Act. I made a standard timetable Order for the filing and service of documents, which reflected the timetable which the applicant sought. The applicant then applied for leave to appeal against the Order I made at that directions hearing. As I understand it, when the section 78 application was heard on 6 June 2023 the appeal process had not been completed. I am aware from having seen an Order in the appeal that the appellant was not granted leave to be represented Mr Caspersz in the appeal. That I conducted one or more directions hearings in C6184/2020 is not grounds for recusal.
(c) As to the third ground, Mr Caspersz’s attempt to draw an implication from the President’s correspondence that I would not have any role in this proceeding simply shows that he has not understood that correspondence, or that he refuses to do so. …. This third ground of the application for recusal was baseless.[18]
[18]Ibid [14].
In the dismissal appeal Mr Caspersz’s grounds for alleging actual or apprehended bias are that:
(a) The Deputy President had a pre-determined view that the summonses had not properly been served and did not allow Mr Caspersz to make submissions on this issue;
(b) DP Lulham ‘lied’ when he said on transcript he had never heard of Mr Dale Smith;
(c) DP Lulham attacked Mr Caspersz’s character in the proceeding involving Mr Caspersz’s wife and ordered that the Legal Services Board and Commissioner investigate Mr Caspersz;
(d) Letters from the President of VCAT to Mr Caspersz on 12 May 2022 and 1 June 2022 had meant that DP Lulham would not be presiding at any further hearings in the VCAT proceedings;
(e) Various transcript references and portions of the dismissal reasons are indicative of bias (actual or apprehended) towards Mr Caspersz; and
(f) VCAT orders of 17 May 2023 and 2 June 2023 meant that DP Lulham could not preside over the hearing on 6 June 2023 or gave the misleading impression that he would not.
I will come back to the issue of the summonses in my discussion of ground 6 below.
The allegation that DP Lulham lied on transcript regarding never having heard of Mr Dale Smith is without any foundation at all. It is, unfortunately, another example of a scandalous allegation made without any proper basis.
Below I reproduce the portion of the transcript where Mr Caspersz advanced his ground regarding the association with Mr Smith. The transcript incorrectly refers to Mr Dow-Smith on a number of occasions and once to Dale-Cox but it is plain those references are meant to be to Mr Dale Smith.
DEPUTY PRESIDENT: Okay. So this has been announced for the first time right now. Okay. You're making a recusal application. What is the conflict of interest?
MR CASPERSZ: The conflict of interest is that you know Mr Dow-Smith through your university days at the Melbourne University in 1982.
DEPUTY PRESIDENT: Hang on. Wait a minute. You haven't said anything like this on oath in an affidavit or anything. Have you? You're just saying this.
MR CASPERSZ: No. I have actually said it under affidavit and I've said that you know Mr Dow-Smith. I didn't go to the extent that you know him through Melbourne University.
DEPUTY PRESIDENT: Okay. But what you're saying now is that I know this person from being at the same university as him in 1982, and that's 41 years ago, I seem to think, if I do the mental arithmetic there.
MR CASPERSZ: Yes.
DEPUTY PRESIDENT: And how many people attend Melbourne University?
MR CASPERSZ: Nah. That's not my question. I said you know him personally because of that. Because of that association with Mr - - -
DEPUTY PRESIDENT: What association? Because he went to a university and I went to a university?
MR CASPERSZ: No. You went to the same - you studied - both studied law together.
DEPUTY PRESIDENT: I've never heard of him.
MR CASPERSZ: He's a lawyer.
DEPUTY PRESIDENT: I think it's absurd.
MR CASPERSZ: But I'm telling you - I'm telling you - - -
DEPUTY PRESIDENT: Is that the grounds - let's be clear. Is that the grounds of your application that I recuse myself? That I know someone because I went to the same university as them in 1982?
MR CASPERSZ: No. I'm - I'm saying that you need to recuse yourself because of that fact that he is the dealer principal owner of the first and third respondent in this proceeding.
DEPUTY PRESIDENT: But it's based on the fact that he went to the same university that I did 41 - - -
MR CASPERSZ: On the fact that you know Mr Dow-Smith through your studying at Melbourne University and that relationship has continued up until this very day.
DEPUTY PRESIDENT: Well, let's hear it. What relationship? What relationship?
MR CASPERSZ: I'm saying that you have remained in contact with Mr Dow-Smith on a personal level.
DEPUTY PRESIDENT: How? What do you know? Tell me. What evidence have you got?
MR CASPERSZ: The evidence is - is from Mr Dow-Smith. That I've received and submitted by email - by email.
DEPUTY PRESIDENT: Okay. Well, if he's said something in writing, you show it to me. Tell me what he said.
MR CASPERSZ: What he said was he - - -
DEPUTY PRESIDENT: No. What? Tell me. What is it? An email of what date? What time? Is it in an affidavit? What are you talking about?
MR CASPERSZ: It's - there are - all the documents that I've provided have been - - -
DEPUTY PRESIDENT: No. I'm not going to look for a needle in a haystack. You assert that I have an ongoing relationship with Dale-Cox. I'm asking you to tell me where - - -
MR CASPERSZ: No. Dow-Smith. Dow-Smith.
DEPUTY PRESIDENT: Dow-Smith. Is it? All right. Dow-Smith. You say that he says I do. Show me. Tell me. What am I supposed to see?
MR CASPERSZ: I'm not saying he told - I'm - I didn't say that he told you that - told me that he has a relationship. He was - - -
DEPUTY PRESIDENT: Okay. All right. So he doesn't say that I've got a relationship with him.
MR CASPERSZ: No. He hasn't.
DEPUTY PRESIDENT: No. Well, okay.
MR CASPERSZ: But what he did say - - -
DEPUTY PRESIDENT: And your assertion is based on me going to the same university as him 41 years ago. Is that the extent of it?
MR CASPERSZ: Yes. It is. But that's not the - but that's not the - that's not the only - - -
[After a further interchange with DP Lulham, Mr Caspersz then went on to outline the further bases of his application for recusal]
(emphasis added)[19]
[19]Court Book (filed in S ECI 2023 03491 proceeding) 2674 -2676 (‘CB’); VCAT Transcript of 6 June 2023 (‘Dismissal hearing transcript’), 4/13 – 6/29.
The first thing which emerges from the above passage is that Mr Caspersz no longer maintains any argument that DP Lulham should have recused himself by reason of his association with Mr Smith. It is plain that at the hearing on 6 June 2023 that argument was made without any proper basis.
Having raised the assertion of an ongoing association from university days without any proper basis, his application in this respect shifts to the suggestion that when DP Lulham said he had never heard of Mr Smith he must have been lying because Mr Smith had been mentioned numerous times in the proceeding in his capacity as the principal of the first and third respondents. No fair reading of the transcript provides any basis for such a serious allegation. The Deputy President is plainly saying he has ‘never heard’ of Mr Smith in the context of Mr Caspersz describing him as someone with whom the Deputy President studied law at university. In fact, Mr Caspersz could provide no evidence that DP Lulham had known Mr Smith at university (or that there had been an ongoing relationship).
There is no basis on which it can properly be asserted that DP Lulham lied about having heard of Mr Smith.
For completeness, I note that I reject out of hand the suggestion alluded to by Mr Caspersz in oral argument that the infelicities in the recording of Mr Smith’s name in the transcript result from some form of deliberate action on the part of DP Lulham.
Mr Caspersz’s assertions regarding DP Lulham’s conduct of the proceeding involving his wife are not supported by any evidence. There is no basis to conclude that this ground for DP Lulham’s recusal was made out.
Mr Caspersz contends that two letters from VCAT to him demonstrate that a decision had been made that DP Lulham would not preside any further in the VCAT proceeding.
There are two answers to this contention:
(a) First, the letters say nothing of the sort; and
(b) Secondly, even had the letters said such a thing at the time they were written, this would not have grounded an application for recusal on grounds of actual or apprehended bias.
The second proposition above needs no exposition. As to the first proposition, the relevant portions of the letters are extracted below:
12 May 2022
I refer to your email of 12 April 2022 in relation to a proceeding before the Civil Claims List, reference C6315/2019, in which you request reconstitution of the Tribunal.
At the time of writing, although a member has not been allocated to constitute the Tribunal for the hearing scheduled for 18 July 2022, I can advise that Deputy President Lulham is not available to preside over this matter.
Therefore, there is no reason to list your application for reconstitution of the Tribunal pursuant to section 108 of the Victorian Civil and Administrative Tribunal Act 1998.
1 June 2022
…
As previously advised, although a Member has not been allocated to constitute the Tribunal for the hearing scheduled for 18 July 2022, Deputy President Lulham is not available to preside.
It is plain these letters simply do not say anything regarding the composition of the Tribunal beyond its composition for a hearing on 18 July 2022.
Mr Caspersz says that a range of matters recorded on transcript at the dismissal hearing cumulatively demonstrate DP Lulham’s actual or apprehended bias. The portions of the transcript of the 6 June 2023 hearing on which Mr Caspersz relies are set out below:
No.
Comment of DP Lulham relied upon
Transcript reference
1 No. Don’t interrupt me. 2/24 2
Listen. Listen. I’m not answering your questions.
3/12
3 I want you to stop interrupting me. 4/3 4 No. I’m not going to look for a needle in a haystack. 6/10 5 Now, if that’s my dreadful conduct, you better have something better than that … 8/6 6 Look, Mr Caspersz, you don’t seem to have a clue what you’re doing. 8/31 7 Now, I think anybody could understand what those letters mean. 9/11 8 I’m not answering your questions. 9/15 9 I would have thought you could understand the judge’s letters. 9/25 10 I’m not answering your questions. 10/4 11 Well, I decline. Justice Quigley wrote letters in the English language. They can be read and they can be understood. Full stop. 10/16 12 Look, you don’t even understand what the word involved means. 11/1 13 But the subpoenas, the summons, they weren’t served. They’re just pieces of paper, they don’t mean anything. 26/1 14 I’m not here to answer your questions. I have ruled on the summons. 26/17 15 No, no. Don’t tell me what I’ve done and don’t ask me questions. 26/20 16 And then you said about half an hour letter, ‘Oops, I’m going to change that’. 27/5
Items 1-3 and 13-15 above relate to the issue of the summonses to witnesses. I deal with those matters below.
I have read the entirety of the transcript of the 6 June 2023 hearing and, when considered in their proper context, neither individually nor cumulatively, do the comments of DP Lulham give rise to a reasonable apprehension of bias, let alone demonstrate actual bias. At times the Deputy President was clearly somewhat abrupt with Mr Caspersz, understandably so, but a fair minded lay observer considering the entirety of the context of the hearing would not have formed the view that the Tribunal might not bring an impartial mind to the resolution of the critical questions relating to the dismissal application. In this regard, it is instructive that items 4 to 12 above, in particular, all occur in the context of the recusal application in which, as I have held above, Mr Caspersz made a series of unsubstantiated allegations some of which were, in the proper sense of that word, scandalous. It is not surprising in that context that on occasion the Deputy President was somewhat short with Mr Caspersz. It is also instructive that when it comes to the substance of his submissions regarding the dismissal application (as opposed to his recusal application and preliminary matters such as the summonses) Mr Caspersz makes no complaint regarding any intervention or comment by the Deputy President.
Mr Caspersz also complains in this regard of portions of the dismissal reasons at paragraphs 2, 15, 43, 59, 125 and 127. Those paragraphs all record negative findings regarding Mr Caspersz’s behaviour or submissions. I do not intend to deal with them individually. It suffices to say that they are not indicative of bias (actual or apprehended) but rather findings adverse to Mr Caspersz which it was open to the Tribunal to make.
Finally, Mr Caspersz makes a further unsustainable submission regarding orders of the Tribunal made 17 May 2023 and 2 June 2023. He says that the order of 17 May 2023 referred to the matter being heard by a senior member of the Tribunal and that the order of 2 June 2023 made by DP Lulham referred to the presiding member. Mr Caspersz appears to contend that the content of these orders means that DP Lulham was not going to or perhaps could not preside over his matter (the argument in respect of the latter order being that DP Lulham should have referred to himself as the Tribunal member if he was in fact going to preside). None of these arguments make sense. Neither order precluded DP Lulham from presiding. The existence of those orders does not demonstrate actual or apprehended bias on his part.
Subject to the discussion below regarding the question of the summonses, Mr Caspersz has not established any of the alleged bases upon which he asserts actual or apprehended bias in the manner in which DP Lulham conducted the dismissal application hearing on 6 June 2023.
Ground 6
Mr Caspersz had sought to summons a number of witnesses on the hearing of the dismissal application. On 1 June 2023 he sent copies of summons to witnesses to:
(a) Joel Bierenkrant;
(b) Sonny Scott;
(c) William McMinn; and
(d) Diarmuid Gordon.
Each of Messrs Bierenkrant, Scott and McMinn are employees of CIE Legal the solicitors for Honda. Mr Gordon is employed by the first respondent.
At a directions hearing before the Tribunal on 17 May 2023 Honda’s counsel indicated she would rely on an affidavit of Mr Bierenkrant at the hearing of the dismissal application. At the directions hearing, Mr Caspersz submitted that Honda should not be permitted to be legally represented and that the Tribunal should not give Honda leave to rely on an affidavit of Mr Beirenkrandt filed 23 March 2023 because it was not in compliance with orders made 15 December 2022. Mr Caspersz did not raise the possibility of calling any witnesses on Honda’s dismissal application. The Tribunal set the dismissal application down for hearing on 6 June 2023 for two hours by video or telephone conference and made an order for the exchange by 2 June 2023 of any affidavits and written submissions. One might infer that the length and mode of the hearing ordered by the Tribunal were both influenced by an understanding that the matter would proceed by way of affidavit and submissions.
On 22 May 2023 Mr Caspersz emailed the VCAT Registry expressing dissatisfaction with the conduct of the directions hearing on 17 May 2023. In that correspondence he flagged his intention to request the attendance of the four witnesses above ‘remotely’, sought the issuance of summonses and said he wished to cross-examine these witnesses on their affidavits or on correspondence and exhibits on which Honda relied for is dismissal application. In oral submissions before me he elaborated that he wished to cross-examine the witnesses as to whether they understood his points of claim.
Rule 4.20(3) of the Victorian Civil and Administrative Tribunal Rules 2018 (Vic) (‘VCAT Rules’) provides:
When a summons is served, a sufficient sum is to be provided as conduct money.
Mr Caspersz did not provide any conduct money when he emailed the summonses.
At the outset of the hearing of the dismissal application DP Lulham invited counsel for Honda to commence her submissions. Counsel for Honda raised the question of the summonses, the Deputy President responds:
Look, I saw some email correspondence about summonses. I suppose my first question was 'Have they been validly served?' Because you'll be well aware, of course, that a summons is only served if it's served with conduct money. That's under the tribunal's rule 4.20(3). Was conduct money provided with the summonses?[20]
[20]Dismissal hearing transcript 1/20-25.
Ms Cockram responds that no conduct money has been paid. The following ensues:
DEPUTY PRESIDENT: Okay. So they haven't been served and we can just ignore them.
MS COCKRAM: They have been served, per se, but not provided conduct money.
…
DEPUTY PRESIDENT: No. And I did see - - -
MR CASPERSZ: Can I respond on that?
DEPUTY PRESIDENT: No. Don't interrupt me. I did see affidavits of service emailed into the tribunal, but the affidavits don't say that conduct money has been paid. So I think that really is the end of that. So I think we'll leave the summonses to one side. Very usual to go trying to subpoena the solicitors on the other side of an interlocutory application anyway, I'd have to say, but the whole thing seems to be misconceived.
MS COCKRAM: Yes.
DEPUTY PRESIDENT: So, Ms Cockram, is there anything else in the preliminary way or are you ready to make your submissions?
MR CASPERSZ: Can I - sorry, Deputy President.
DEPUTY PRESIDENT: What?
MR CASPERSZ: I made - - -
DEPUTY PRESIDENT: I'm talking to Ms Cockram.
MR CASPERSZ: Yeah. But you haven't given me the opportunity to even convey why you're even here today. Because I'm asking - I'm asking you to be - - -
DEPUTY PRESIDENT: Listen. Listen. I'm not answering your questions. You have done affidavits of service that don't talk about the payment of conduct money with summonses.
MR CASPERSZ: And the reason - and the reason that no money was paid is because I have put those conducts.
DEPUTY PRESIDENT: And that tells me that conduct money has not been paid.
MR CASPERSZ: Sorry. It's via video conference.
DEPUTY PRESIDENT: So the summonses have not been served.
MR CASPERSZ: I'm sorry. But the - - -
DEPUTY PRESIDENT: Okay. Ms Cockram, if you'd like to move on.
MR CASPERSZ: The conduct money hasn't been paid and that was raised already before.
DEPUTY PRESIDENT: It hasn't been paid. It hasn't been paid (indistinct).
MR CASPERSZ: They haven't been paid because there's no conduct money to be paid because it's via video conference. Not via attendance of a physical court or tribunal.
DEPUTY PRESIDENT: Okay. That's a fallacy and it's wrong.[21]
[21]CB 2672-2673; Dismissal hearing transcript 2–3.
In the dismissal reasons the Tribunal refers to this issue in the following terms:
Even though the hearing before me on 6 June 2023 was of Honda’s application under section 78, Mr Caspersz had filed several witness summonses. He sent them to the respondents in the days immediately before the hearing, amongst a volume of other documents. In the hearing before me it quickly became clear that Mr Caspersz had not served the summonses. In terms of Mr Caspersz seeking to impose obligations on the persons named in the summonses, they were irrelevant. As I mention below, in the context of a considering whether Mr Caspersz is conducting the proceeding in a way that unnecessarily disadvantages other parties, his actions in sending copies of the summonses to the respondents, and without justification seeking to argue that VCAT has relieved him of the requirement to supply conduct money with a summons, are relevant to the issues under section 78.
A properly drawn and validly served summons to witness imposes significant obligations on the witness, and exposes the witness to penalties for non-compliance. Sending a summons to a party’s legal practitioners, but without validly serving it, puts the party in the unenviable position of having to consider whether it is arguable that the witness named in the summons has obligations or is exposed to penalties. I have no doubt that Mr Caspersz knew how validly to serve a summons. His choice to ‘send’ summonses seems designed to cause the respondents to suffer disadvantage by putting them to the time trouble and expense of considering them.[22]
[22]Dismissal reasons [19]–[20].
At the commencement of his oral submissions, Mr Caspersz returns to the question of whether he will be permitted to question witnesses and DP Lulham reiterates that, in his view, the summonses have not been served because no conduct money was provided and says that ‘on top of that it is an interlocutory application, it’s not a trial’. Later in his submissions Mr Caspersz returns to the question of conduct money and submits that on 11 August 2022 Honda had raised the absence of conduct money in summonses to witnesses and the Tribunal had ruled that the case for conduct money was ‘thrown out’, although he also submits in the same passage that what the Tribunal did was convinced Honda to withdraw its application re conduct money.
In the dismissal reasons the Tribunal refers to the submission of Mr Caspersz that he had served the summonses without conduct money because Senior Member Vassie had ordered that he could do so. The Tribunal records that having checked the relevant orders no such order was made by Senior Member Vassie and concludes:
Mr Caspersz’s submission that he was not obliged to provide conduct money when serving a summons to witness is factually incorrect, in that no Order was made excusing him from that obligation. Rule 4.20(3) of the Victorian Civil and Administrative Tribunal Rules 2018 requires conduct money to be provided when serving a summons. It is also irrelevant to the issues in Honda’s section 78 application. It is indicative of Mr Caspersz’s propensity to look for arguments.[23]
[23]Ibid [122](g).
In this proceeding, Mr Caspersz essentially makes two points:
(a) that he was denied a fair hearing because DP Lulham had pre-judged the issue of whether the summonses had been properly served and this is indicative of DP Lulham’s bias (actual or apprehended); and
(b) that he was not required to pay conduct money because the hearing was conducted as a video hearing.
As a result, Mr Caspersz says he was denied the opportunity to cross-examine the witnesses on the dismissal application and was denied a fair hearing on that application.
Rule 4.20(3) of the VCAT Rules requires the provision of ‘sufficient’ conduct money and, in the context of a video hearing, there is a superficial attractiveness to the proposition that in some circumstances sufficient conduct money might be none.
However, for a number of reasons I am satisfied that even for a video hearing it is necessary to tender a sum sufficient to allow the witness to travel to an appropriate place where they might give evidence by video link.
‘Conduct money’ is not defined in the VCAT Rules. ‘Conduct money’ is, however, defined in the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Supreme Court Rules’) r 42.01 as a ‘a sum of money or its equivalent, such as pre-paid travel, sufficient to meet the reasonable expenses of the addressee of attending court as required by the subpoena and returning after so attending’. The definition in the Supreme Court Rules is one which accords with the natural understanding of the phrase and for present purposes, I would interpret ‘conduct money’ in the VCAT Rules in the same way.
In the context of a video hearing, conduct money is the amount necessary to meet reasonable expenses which might be associated with attending a place to give video evidence. In my view, just because a witness may in fact not incur such expense, because, for example, they choose to give video evidence from home or work does not relieve the person serving a subpoena from providing a sum sufficient to allow them to travel to a place to give that evidence.
I am fortified in that view by the provisions of:
(a) Rule 42.06 of the Supreme Court Rules which excuses compliance with a summons if conduct money has not been provided or tendered to the addressee; and
(b) Section 194 of the Evidence Act 2008 (Vic) which provides a range of sanctions, including arrest and fine, for a witness who fails to appear having been served with a summons ‘and a reasonable sum has been provided for his or her costs in so attending’.
Each of these provisions appears to proceed on the assumption that there will be a tender of a non-zero sum upon service of a summons. Put another way, given the potentially serious consequences of a failure to attend in response to a properly served summons it would seem unlikely that the recipient should be left to judge whether service without any conduct money was service of ‘sufficient’ conduct money for the purposes of r 4.20(3) of the VCAT Rules.
In the circumstances, I am not satisfied VCAT made any error in holding that the summonses were not properly served. In any event, for reasons which I elaborate upon below, I am not persuaded any unfairness was occasioned to Mr Caspersz by the denial of his opportunity to cross-examine the four witnesses.
At this juncture it is appropriate to return to the allegations of bias said to arise from the Tribunal’s approach to the issue of the summonses. Mr Caspersz alleges that the Tribunal approached the issue of whether conduct money was required with a closed mind and that the comments made in items 1-3 and 13-15 of the table subjoined to paragraph 88 above are indicative of prejudgement on that issue and thus demonstrate bias. It is apparent that DP Lulham had a strong view regarding the service of the summonses and he did not appear to be interested in hearing from Mr Caspersz on that issue. Nonetheless, the fact remains that Mr Caspersz was afforded the opportunity to put his submission that conduct money was not required and the Tribunal rejected that submission on grounds which I have upheld. In the circumstances, the Tribunal’s approach to this issue does not indicate any prejudgement of the fundamental issues relevant to the dismissal application.
The only affidavit upon which Honda relied for its dismissal application was from Mr Bierenkrant. Mr Caspersz submitted that his purpose in issuing the summons was to cross-examine the witnesses on their affidavits, particularly in relation to their understanding of his claim. In the dismissal application Honda did not rely on any affidavit from Messrs Scott, McMinn or Gordon. Had the summonses been allowed in relation to these witnesses, Mr Caspersz would have had no automatic right to cross-examine. Further, I am not satisfied that the potential witnesses’ subjective understanding of Mr Caspersz’s points of claim was relevant to the matters before VCAT on the dismissal application. This is particularly so in relation to Mr Gordon who is associated with the first and third respondents and not in any way associated with Honda. Finally, this was an interlocutory application, albeit with a potentially determinative consequence for the VCAT proceeding. It will often be the case that in an interlocutory application cross-examination of witnesses is unnecessary to ensure fairness to all parties.
In the circumstances of this case, no unfairness was occasioned to Mr Caspersz by VCAT’s refusal to permit him the opportunity to cross-examine Messrs Scott, McMinn or Gordon.
Mr Bierenkrant had sworn an affidavit upon which Honda relied and Mr Caspersz had indicated he wished to cross-examine Mr Bierenkrant on that affidavit. VCAT is required by s 102 of the VCAT Act to provide a party a reasonable opportunity to cross-examine witnesses. In the hearing, the Tribunal does not seem to have considered the issue of Mr Caspersz’s application to cross-examine Mr Bierenkrant other than through the prism of the effectiveness of the service of the witness summons, except perhaps for the brief reference to the application being interlocutory. Notwithstanding, I am still satisfied no unfairness was occasioned to Mr Caspersz in the hearing.
In so holding, I am conscious that in ordinary circumstances a denial of the opportunity to cross-examine a witness on matters of fact would constitute a failure to accord natural justice and would not provide a reasonable opportunity under s 102(1) of the VCAT Act. As Habersberger J said in Leon Holdings Pty Ltd v O’Donnell:[24]
In my opinion, nothing said in s.98 of the VCAT Act overrides the clear mandatory statement in s.102(1)(b) that the Tribunal must allow a party a reasonable opportunity to cross-examine a witness. Although the Tribunal “may regulate its own procedure” (s.98(3)), that power is expressly “subject to this Act”. The ability to conduct the proceeding with little formality and technicality (s.98(1)) is also expressed to be subject to “the requirements of this Act”.
…
As Brennan J said, in delivering the opinion of the United States Supreme Court, in Goldberg v Kelly:
In almost every setting where important decisions turn to questions of fact, due process requires an opportunity to confront and cross-examine witnesses.[25]
[24][2009] VSC 430.
[25]Ibid [97]–[98] (citations omitted).
As I have indicated above, I am satisfied that often in interlocutory applications no unfairness will be occasioned by proceeding without cross-examination of witnesses. This was a matter averted to by the Tribunal. That said, the application for dismissal had a potentially determinative consequence for the VCAT proceeding and in those circumstances Mr Caspersz’s request to cross-examine Mr Bierenkrant required careful consideration. Nonetheless I am satisfied that a consideration of the nature of the application before the Tribunal, the issues the Tribunal was required to consider under s 78 of the VCAT Act, the content of the affidavit of Mr Bierenkrant and the materials filed by Mr Caspersz combine to create a combination of circumstances where the failure to afford an opportunity to cross-examine a witness was not a breach of the requirements of procedural fairness and did not constitute a breach of s 102.
The Tribunal was considering Mr Caspersz’s conduct of the proceeding. Under s 78 it had to consider whether he had engaged in conduct such as that enumerated in paragraphs (1)(a) to (f) (Honda not having placed any reliance on paragraph (g)). Mr Bierenkrant’s affidavit to the extent it comprises matters of fact, as distinct from opinion and submission, consists of extracts from transcript, descriptions of hearing outcomes and orders, and the annexure of documents from the proceeding. Nothing was to be achieved by cross-examining Mr Bierenkrant on matters of opinion or submission. Nor did anything turn on Mr Bierenkrant’s subjective views as to the intelligibility of Mr Caspersz’s points of claim. As to the matters of fact contained in the affidavit, as I have stated, they consist almost entirely of extracts from or annexures of documents from the VCAT proceeding and related appeals. It cannot be said that Mr Caspersz was hampered in his submissions by his inability to cross-examine Mr Bierenkrant. He relied on affidavit material covering the entire span of the proceeding, made extensive submissions as to the justifications for his own conduct, criticised Honda for its conduct and accused the Tribunal of partiality and bias.
The basal question is did Mr Caspersz get a fair hearing on the dismissal application? I am satisfied that, notwithstanding that he was not permitted to cross-examine Mr Bierenkrant, he did.
Ground 13
In ground 13 Mr Caspersz identifies what he says are 26 separate errors of fact in the dismissal reasons. In paragraph 8(e) of his reply submissions he identifies 25, not all of which are included in the 26 alleged errors identified in ground 13.
In a passage approved by the Court of Appeal in Patsuris v Gippsland and Southern Rural Water Corporation,[26] Bell J in Rugolino v Howard,[27] set out the principles to be applied when investigating a finding of fact for legal error:
These principles [of judicial decision making] have been established in the decided cases, usually in the context of defining the proper role of a judge on appeal. So in Roads Corporation v Dacakis, Batt J held ‘the question whether there is any evidence of a particular fact is a question of law.’ Therefore a finding of fact is open to challenge as ‘erroneous in law’, but only if ‘there is no probative evidence to support it’. Similarly, in S v Crimes Compensation Tribunal, Phillips JA said making a finding of fact would ordinarily give rise to an error of law only if ‘it is shown that the fact-finding tribunal arrived at a finding that was simply not open to it.’ His Honour emphasised that the question was not whether the finding was ‘reasonably open’, for that implied the court on appeal could test the finding against a reasonableness standard, but whether the finding was open at all.
S v Crimes Compensation Tribunal has been followed and explained by the Court of Appeal. In Myers v Medical Practitioners’ Board of Victoria, Warren CJ (Chernov JA and Bell AJA agreeing) held there was no error of law in making a finding of fact unless the finding was ‘not open’. After endorsing the decision of Phillips JA in S v Crimes Compensation Tribunal, the Chief Justice approved the statement of Kirby P in Azzopardi v Tasman UEB Industries that it was ‘critical’ to making findings of fact that they be based on the evidence, but there would be no error of law ‘unless it can be shown that there was no evidence’ to support the finding. The decision of Phillips JA in S v Crimes Compensation Tribunal was also followed in ISPT Pty Ltd v Melbourne City Council. After approving the ‘not open’ test, Warren CJ, Kellam JA and Osborn AJA referred to Transport Accident Commission v Hoffman where Young CJ and McGarvie J said an appeal court, when determining whether a finding of fact was made in error of law, had to determine whether there was ‘any evidence’ to support it.
In Victoria v Subramanian, Cavanough J examined these and other authorities. As his Honour held, whether a finding was open on the evidence, or whether there was any or some evidence to support it, are different ways of expressing the same test.[28]
[26](2016) 218 LGERA 167; [2016] VSCA 109, [46] (Garde AJA, Tate and Kyrou JJA agreeing).
[27][2010] VSC 590.
[28]Ibid [10]–[12] (citations omitted).
Leaving aside issues relating to conduct money with which I have dealt above, in the long list of alleged errors only the following warrant any comment:
(a) In paragraph 28 of the dismissal reasons the Tribunal refers to orders made on 30 January 2020 which were in fact made on 3 January 2020. Nothing turns on this minor typographical date error;
(b) In paragraph 54 of the dismissal reasons VCAT says Mr Caspersz’s reconstitution application was dismissed by Judge Hampel. Mr Caspersz says it was struck out. Judge Hampel’s reasons say the application is dismissed. Her order was that the application be struck out. Nothing turns on the nomenclature used in the order. It is likely more accurate to describe such an application as dismissed;
(c) Mr Caspersz contends that in paragraph 120(b) the Tribunal mischaracterises a submission he made regarding obtaining a copy of the transcript. In that paragraph the Tribunal refers to the transcript of the 17 May 2023 directions hearing. Mr Caspersz says this should be a reference to the transcript of the 11 August 2022 hearing. In paragraphs 16(j) and (k) of the dismissal reasons, the Tribunal records Mr Caspersz as having revised his affidavit of 2 June 2023 by reference to the transcript of 11 August 2022 which resulted in the affidavit of 4 June 2023. However, the transcript of the hearing of 6 June 2023 specifically records Mr Caspersz as making a submission regarding late transcript from the 17 May 2023 hearing.[29] No error exists in paragraph 120(b); and
(d) Mr Caspersz points to an error in paragraph 122(d) of the dismissal reasons, being that the directions hearing before Member Fry was held on 17 May 2023 (not 23 March 2023) which was only just under 3 weeks before the 6 June 2023 hearing (not 10 weeks). Nothing turns on this error. The substantive point made in the dismissal reasons, which is that Mr Caspersz was provided with an opportunity to provide affidavit materials in response to Honda’s dismissal application and did so, remains.
[29]CB 2697–8; Dismissal hearing transcript 27/30–28/11.
None of the matters listed above impact on the decision in any way.
I have reviewed the other errors for which Mr Caspersz contends. All of the other factual matters of which he complains were open on the evidence and as a result are incapable of constituting an error of law.
This ground fails.
Ground 9
In his ninth ground, Mr Caspersz contends that he was denied a fair hearing because in the dismissal reasons, VCAT relied on ‘voluminous documents’ which had not been put to him or raised by Honda.
There is, it must be said, a certain irony in Mr Caspersz raising such a ground. In his affidavit of 4 June 2023 Mr Caspersz said:
I, the Applicant in the VCAT proceeding, have prepared this said affidavit … being in response to the Second Respondent's oral application made at the directions hearing on 27th October 2022 and the affidavits of Mr Joel Bierenkrant of 2nd May 2023 and 23rd March 2023, and is further to my affidavit's made previously on 17 January 2020 (x2), 10th March 2021, 16th June 2021(being provided by email on 25th June 2021), 12thApril 2022 and 14th April 2022 (x9) to both VCAT and all of the Respondents, 7th June 2022, 22nd July 2022, 8th September 2022, 25th November 2022 and 24th March 2023 which separately and/or together collectively are in support of the Applicant's position …. because of the overlapping events and in the current VCAT proceeding, generally.
In other words, Mr Caspersz proceeded on the basis that the entirety of the procedural history of the VCAT proceeding was relevant to the dismissal application and sought to rely on affidavit material which exhibited virtually every document generated in the VCAT proceeding. As will be seen, Mr Caspersz now complains that he was denied a fair hearing because various matters of procedural history were not raised with him.
Mr Caspersz raised a similar ground before VCAT on 27 July 2023 in the hearing regarding costs in support of his application for recusal on that day. DP Lulham deals with the argument in his 24 August 2023 reasons in the following terms:
Mr Caspersz said I introduced “60 plus” documents in the Reasons for my decision on the section 78 application. This was apparently put as a basis for challenging my decision. I invited Mr Caspersz to identify the documents and he said that he would not do so. I invited him to identify even just the strongest document within this category, the one which might best demonstrate the point he was making, and he declined to do so.[30]
[30]Caspersz v Garry & Warren Smith Proprietary Limited [2023] VCAT 987, [12].
In this proceeding, the grounds of appeal and Mr Caspersz’s written submissions dated 15 January 2024 do not particularise which portions of the reasons introduce new matters and what the voluminous documents are in any way, other than to refer to paragraphs 34 and 35 of the reasons and an email sent by Mr Caspersz of 18 May 2020, as an example.
In the course of the hearing before me, I asked Mr Caspersz to specify what it was he said was in the dismissal reasons but not raised with him. He said none of the matters in respect of which he alleged DP Lulham had made errors had been raised with him in the hearing and he referred me specifically to paragraph 8 of his reply submissions, which is where those matters are enumerated.
Paragraph 8 of the reply submissions is long. It deals with an array of issues – it does not specifically identify documents which were said to have been raised for the first time in the dismissal reasons, many of the matters referred to in that paragraph patently were raised in the hearing, indeed on a number of occasions Mr Caspersz’s complaint is that the matter was raised by the Deputy President at the hearing and not by him.
Paragraphs 8(a) to (f) of the reply submissions raise matters of disagreement with various aspects of the dismissal reasons but the content of those matters was clearly in issue at the hearing of the dismissal application, indeed the suggestion that the respondents understood his claim and the issues relating to 11 August 2022 and the procedural orders were central to much of Mr Caspersz’s submissions. There can be no suggestion that Mr Caspersz was not on notice of any of the matters raised in those paragraphs.
Paragraph 8(g) enumerates some 25 alleged errors in the judgment, which I note differ in some respects from the 26 errors enumerated in ground 13 of the amended notice of appeal. I have dealt with those alleged errors above.
The argument that all of the matters raised in paragraph 8(g) were new matters raised for the first time in the judgment by DP Lulham is simply untenable:
(a) aspects of the procedural history of the VCAT proceedings on and subsequent to 11 August 2022 were not only in issue and raised by Honda as part of its application but specifically addressed by Mr Caspersz. Paragraphs (i), (ii), (xii), (xiii), (xiv), (xv), (xvi), and (xx) raise complaints regarding errors in relation to that history but it cannot be contended that they raise new matters to which Mr Caspersz has not had an opportunity to respond;
(b) issues relating to whether Mr Caspersz had complied with orders relating to points of claim, whether his claim was intelligible and the scope of any allegations regarding a defective fuel pump (see paragraphs (v), (xi), (xxiv) and (xxv)) were all plainly raised by Honda in its application and addressed by Mr Caspersz in his materials;
(c) issues relating to conduct money and witnesses were clearly addressed with Mr Caspersz at the hearing of 6 June 2023 (paragraphs (xvii), (xxi));
(d) in paragraphs (iv) and (ix) Mr Caspersz’s complaint is that the dismissal reasons erroneously suggest that at the hearing a matter was raised by Mr Caspersz when in fact it was raised by DP Lulham, in other words these matters were plainly raised with Mr Caspersz;
(e) in paragraphs (viii), (xviii) and (xix) Mr Caspersz asserts that DP Lulham has made an error regarding his reference to the transcript of 17 May 2023, as I note DP Lulham’s reference arises directly from something Mr Caspersz said to him at the hearing on 6 June 2023;
(f) Paragraph (iii) relates to the number of appeals Mr Caspersz had commenced, this is a matter which, as the dismissal reasons make plain, was addressed by counsel for Honda and the subject of her submissions at the hearing of 6 June 2023;
(g) Paragraph (x) relates to a decision by Judge Hampel in 2021 rejecting an application by Mr Caspersz for reconstitution of the Tribunal. It is squarely raised by Honda in the affidavit of Joel Bierenkrant of 2 May 2023 as an instance of conduct in support of its application;
(h) Paragraph (xxii) is simply a complaint regarding the Deputy President’s conclusion. It is not properly characterised as an instance of a matter which was not raised with Mr Caspersz; and
(i) Paragraph (xxiii) deals with a matter raised by Mr Caspersz at the hearing on 6 June 2023.[31]
[31]CB 2719; Dismissal hearing transcript 49/12–20.
There are two matters referred to paragraph 8(e) of the reply submissions which were not specifically raised with Mr Caspersz in Honda’s materials or by DP Lulham on the day of the hearing.
The first is the reference in paragraph 28 of the dismissal reasons to a ‘misconceived’ application for written reasons on 30 January 2020 (which date Mr Caspersz says should be 3 January 2020). This matter is referred to in the dismissal reasons as part of the procedural history of the matter. As I have indicated above, it is plain Mr Caspersz regarded the entirety of the procedural history of the proceeding as relevant to the dismissal application. In any event, the matters in paragraph 28 of the dismissal reasons are not relied upon for the conclusion that Mr Caspersz’s conduct disadvantaged Honda.
This leaves the emails of 18 May 2020 referred to in paragraphs 33, 34 and 35 of the judgment. It goes without saying those three emails do not constitute ‘voluminous documents’. They are specifically referred to in and annexed to the affidavit of 22 July 2022 on which Mr Caspersz relied in his opposition to the dismissal application. More fundamentally, however, they:
(a) are recorded in a portion of the dismissal reasons setting out the history of the proceeding;
(b) relate to matters between Mr Caspersz and the first and third respondents; and
(c) are not relied upon for the conclusion that Mr Caspersz’s conduct of the proceeding was disadvantaging Honda.
Ground 9 fails.
Grounds 8, 11 and 17
These grounds in effect seek to impugn the Tribunal’s overall conclusion that the test in s 78(1) had been met and the discretion in s 78(2) should be exercised by dismissing the proceeding.
Ground 8 is directed to the introductory portion of the dismissal reasons (paragraphs 1 to 7). As Mr Caspersz himself recognises in the articulation of that ground, that introductory portion of the reasons is a summary of the Tribunal’s overall conclusion. Mr Caspersz’s complaints regarding these paragraphs consist of:
(a) a contention that VCAT was wrong to conclude that Mr Caspersz’s conduct in the lead up to the hearing of 6 June 2023 was itself demonstrative of conduct in the proceeding that unnecessarily disadvantaged Honda. Such a conclusion was open to the Tribunal member. No error of law has been identified;
(b) a contention that VCAT failed to take into account Honda’s failure to comply with an order of 24 February 2024. It is plain from the dismissal reasons that VCAT considered Mr Caspersz’s arguments regarding Honda’s alleged failures to comply with procedural orders and rejected the proposition that, such as they were, they excused Mr Caspersz’s manner of conducting the VCAT proceeding; and
(c) a contention that the Tribunal member referred to matters of procedural history which had not been raised with Mr Caspersz and that this is indicative of bias. I have dealt with allegations of bias and allegations that matters were not raised with Mr Caspersz above. There is nothing in this contention.
Ground 11 is, in effect, the expression of Mr Caspersz’s disagreement with VCAT’s ultimate conclusion regarding the dismissal application. It does not add to any of the other grounds of appeal and it does not identify any error of law.
Question 17 and ground 17 are, in effect, a catch all question and catch all ground that rely on the other 16. They advance matters no further.
Conclusion on the dismissal appeal
With the exception of ground 6, none of Mr Caspersz’s grounds warrant a grant of leave, they have no prospect of success. Ground 6 does warrant a grant of leave (although as it happens not on a basis Mr Caspersz advanced), but for the reasons I have given should still be rejected.
The procedural orders appeal
In the procedural orders appeal Mr Caspersz appeals from a decision of Irving AsJ on 15 September 2023 dismissing Mr Caspersz’s application for leave to appeal the procedural orders. For the reasons which follow, that appeal is dismissed.
At the outset it is important to observe that Mr Caspersz’s application for leave to appeal related to procedural orders which, at their essence, provide for a timetable for the exchange of material in relation to an interlocutory application. There is nothing inherently unfair or unusual about the timetable and, in the circumstances, the application for leave to appeal and the appeal against Irving AsJ’s decision constitute a meritless waste of time and resources of the parties and the Court.
Order 4 of the Miscellaneous Proceedings Rules deals with appeals from tribunals. Rule 4.08(8) provides as follows:
The Court may dismiss the appeal or the application for an extension of time or for leave to appeal (as the case may be) if it is satisfied that–
(a)the notice of appeal does not identify sufficiently or at all a question of law on which the appeal or proposed appeal may be brought;
(b)the appellant or applicant does not or would not have an arguable case on appeal or to refuse leave or to impose no substantial injustice; or
(c)the appeal or application is frivolous, vexatious or otherwise an abuse of the process of the Court.
In his reasons for decision Irving AsJ:
(a) Summarised the history of the procedural orders;
(b) Summarised Mr Caspersz’s grounds of appeal and his submissions;
(c) Correctly identified the relevant legal principles;
(d) Found that Mr Caspersz had sufficiently identified questions of law on which his proposed appeal was to be brought;
(e) Found that Mr Caspersz had not demonstrated an arguable case that Senior Member Vassie’s decision of 15 December 2022 demonstrated bias;
(f) Found there was an arguable case that Senior Member Vassie’s reliance on the decision of Quick v Lam-Ly Pty Ltd[32] to refuse a stay was incorrect;
[32][2019] VSCA 111 (Beach JA).
(g) Found that, notwithstanding that arguable ground of appeal, refusal of the grant of leave would impose no substantial injustice on Mr Caspersz because:
(iii) The stay order was interlocutory;
(iv) Mr Caspersz had made an unsuccessful application for a stay of the same order in this Court;
(v) An appeal would serve no underlying purpose as the underlying proceeding had been dismissed and Mr Caspersz had sought leave to appeal that dismissal; and
(vi) Mr Caspersz’s disputes with the respondents had become hopelessly fragmented and it was inconsistent with the overarching purpose of the Civil Procedure Act 2010 (Vic) to allow the appeal to proceed;
(h) Found there was no arguable case that, in allowing Honda to make an application to strike out or dismiss the VCAT proceeding, the Tribunal had breached the rules of natural justice and procedural fairness;
(i) Found that there was no arguable case that s 78 of the VCAT Act did not permit a respondent to make an application to dismiss a proceeding;
(j) Found that Mr Caspersz’s application for leave to appeal the procedural orders was an abuse of process because it would serve no practical purpose; and
(k) Determined that it was unnecessary to decide any issue regarding a potential need to extend time in relation to the application for leave to appeal the procedural orders made on 15 December 2022 and 21 December 2022.
Mr Caspersz’s notice of appeal against the decision of Irving AsJ identifies seven grounds of appeal. Those grounds and their disposition may, in light of the above discussion regarding the dismissal appeal, be disposed of relatively shortly:
(a) Mr Caspersz’s first ground is that his Honour’s reasons omitted key facts in his introduction, being the additional defects which Mr Caspersz alleges regarding the vehicle which is the subject of the VCAT proceedings. There is nothing in this ground. The asserted additional facts could have no bearing on the questions which Irving AsJ was required to consider. In any event, the reasons clearly avert to Mr Caspersz’s allegation of a defective fuel pump at paragraphs 46 and 47.
(b) Mr Caspersz’s second ground is that the material listed in the judgment as relied upon by Mr Caspersz omits relevant documents upon which he relied. There is similarly nothing in this point, paragraphs 35 to 37 of Irving AsJ’s judgment make plain that he had regard to all material filed by the parties on the application. That was all the Associate Justice was required to do. No error of law is demonstrated.
(c) Mr Caspersz’s third ground is that the Associate Justice erred because he did not consider whether Mr Caspersz had a ‘reasonable excuse’ for his failure to comply with the orders of 11 August 2022. This ground is also entirely misconceived, not least because at paragraph 59 of his decision the Associate Justice does in fact deal with Mr Caspersz’s argument regarding reasonable excuse and does so in a way which demonstrates no error.
(d) Mr Caspersz’s fourth ground is that the judgment relies upon an incorrect fact which was that the proceeding had been dismissed, when in fact it had only been dismissed against Honda and remained extant against the first and third respondent. There is nothing in this ground. The reasons of the Associate Justice refer to the proceeding being dismissed in the context of a contest between Mr Caspersz and Honda. The absence of mentioning the status of the VCAT proceeding as against the first and third respondent is simply of no moment in relation to the issues which the Associate Justice was required to consider.
(e) In his fifth ground Mr Caspersz asserts that the Associate Justice has misunderstood or mischaracterised various submissions he made:
(vii) Mr Caspersz says that the Associate Justice did not deal with a submission that he had suffered prejudice as a result of his proceeding being dismissed because he had filed documents in the procedural orders appeal which, in order to avoid duplication, were to be relied upon in the dismissal appeal. No such submission was advanced before the Associate Justice;
(viii) Mr Caspersz reiterates his submission regarding the alleged failure of the Associate Justice to avert to his claims regarding a defective fuel pump. For the reasons discussed in relation to ground 1 there is nothing in this proposition;
(ix) Mr Caspersz asserts the Associate Justice misinterpreted his second question of law. That submission is simply untenable. The Associate Justice’s reasons show he clearly understood the second question of law and properly dealt with it; and
(x) Mr Caspersz asserts that the Associate Justice failed to deal with an argument that the orders of 11 August 2022 required Honda to make an application for dismissal or strike out, not both, and that having elected to refer to strike out on 27 October 2022, Honda could not make a dismissal application. The Associate Justice’s reasons do deal with the substance of this argument at paragraph 63. In any event, it is nonsense.
(f) Mr Caspersz in his sixth ground contends that the Associate Justice erred in finding that he would suffer no substantial injustice if the procedural orders appeal was dismissed. For the reasons which the Associate Justice gave, I agree there is no substantial injustice in the procedural orders appeal being dismissed. First, insofar as the question of a stay of the 11 August 2022 orders is concerned, his Honour was right to refuse any relief on the basis that a stay of those orders had been unsuccessfully sought in this Court. Insofar as the balance of the procedural orders are concerned, it is apparent that Mr Caspersz suffers no prejudice because of the existence of the dismissal appeal.
(g) In Ground 7 Mr Caspersz alleges that his Honour decided the question of extension of time on the basis of the wrong dates. As the above summary of the reasons for decision indicates, his Honour expressly did not decide the question of whether an extension of time was necessary.
None of Mr Caspersz grounds have any merit. The appeal against Irving AsJ’s order of 15 September 2023 is dismissed.
The costs appeal
In the first set of orders made by VCAT on 24 August 2023 DP Lulham rejected Mr Caspersz’s application that he recuse himself from the hearing on the costs order. The application for recusal was based on the same grounds Mr Caspersz advanced in the dismissal proceeding as evidencing DP Lulham’s bias. I have rejected those grounds. There was no basis for DP Lulham to recuse himself. For completeness, nor is there anything in the submission that making a decision on the recusal application after a 25 minute adjournment is relevant to the assessment of whether there was actual or apprehended bias.
Mr Caspersz also seeks leave to appeal against DP Lulham’s refusal to stay the orders of 28 June 2023. As the Deputy President correctly identified, the only relevant operation of a stay in the matter before him would have been to adjourn the costs hearing. No error is demonstrated in VCAT proceeding to hear the costs application on 27 July 2023 and, in these circumstances, there is no error in the dismissal of the stay application. Leave to appeal this order should be refused.
Mr Caspersz seeks leave to appeal from a grant of Honda’s application for leave to be represented by a legal practitioner. No arguable basis for error has been shown in relation to that order. Leave to appeal should be refused.
Mr Caspersz seeks leave to appeal against an order extending time for the filing of an affidavit by 10 minutes. Leave to appeal should be refused in relation to this order.
In the second set of orders made on 24 August 2023 Mr Caspersz seeks leave to appeal a range of orders which dealt with a further application by Mr Caspersz for a stay of the orders of 28 June 2023. In his grounds of appeal Mr Caspersz confirmed that his stay application request of 8 August 2023 was not a further request for a stay, but confirmation of his oral application made at the hearing on 27 July 2023. In those circumstances, VCAT having appropriately dismissed the oral application, there is no error demonstrated in the second set of orders made on 24 August 2023 dealing with the stay application referred to in the 8 August 2023 email. Leave to appeal this order should be refused on the same basis as leave to appeal the dismissal of the oral application for a stay of the 28 June 2023 orders.
Also, in the second set of orders made on 24 August 2023, VCAT fixed a directions hearing in relation to that aspect of the proceeding involving the first and third respondents. Mr Caspersz seeks leave to appeal from that order on the basis that the balance of the VCAT proceeding cannot be dealt with until his dismissal appeal has been heard and determined. There is no merit in this ground.
This leaves Mr Caspersz’s appeal against the costs order made in favour of Honda in the first set of orders made on 24 August 2023. In the course of the hearing before me I asked Mr Caspersz whether there was any basis on which he could resist a costs order if his dismissal appeal was unsuccessful. Mr Caspersz submitted that he would still contend that no costs order should have been made because, as I understood it, at various stages VCAT refused a grant of leave for Honda to be represented by legal practitioners. There is no substance in this ground. Deputy President Lulham, in his decisions specifically took into account the period of time when Honda was self-represented and excluded that from his costs order.
To the extent that Mr Caspersz suggests that on 6 November 2019 VCAT decided that for the entirety of the future of the proceeding the parties were not to be legally represented, there is simply nothing in that ground. To the extent that Mr Caspersz suggests that costs can only be awarded where they have specifically been reserved, there is nothing in this ground.
Mr Caspersz’s application for leave to appeal the costs order made 24 August 2023 should be refused.
In the circumstances, none of the grounds of the costs appeal warrant a grant of leave and this proceeding should be dismissed.
Conclusion
Mr Caspersz has failed in relation to each of the matters before me.
Within seven days the parties should file submissions of no more than 3 pages in total on the question of costs.
S C H E D U L E O F P A R T I E S
S ECI 2023 00577
S ECI 2023 03491
S ECI 2023 04461
BETWEEN:
| ADRIAN CASPERSZ | Applicant/Appellant |
| - and - | |
| GARRY & WARREN SMITH PROPRIETARY LIMITED (ACN 004 753 333) | First Respondent |
| HONDA AUSTRALIA PTY LTD (ACN 004 759 611) | Second Respondent |
| GARRY & WARREN SMITH GROUP (ABN 53 394 190 214) | Third Respondent |
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