Caspersz v Garry & Warren Smith Pty Ltd & Ors (No 2)
[2024] VSC 8
•31 January 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2022 03693
| ADRIAN CASPERSZ | Applicant |
| v | |
| GARRY & WARREN SMITH PTY LTD (ACN 004 753 333) & ORS (according to the attached schedule) | Respondents |
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JUDGE: | O’Meara J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12 October 2023 |
DATE OF JUDGMENT: | 31 January 2024 |
CASE MAY BE CITED AS: | Caspersz v Garry & Warren Smith Pty Ltd & Ors (No 2) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 8 |
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JUDICIAL REVIEW – Application for leave to appeal from interlocutory orders made by the Victorian Civil and Administrative Tribunal – Multiple prior and subsequent hearings – Appeal on a question of law – ‘Prejudice’, ‘bias’, procedural fairness and natural justice – Various seemingly residual complaints – No complaints of any substance – Victorian Civil and Administrative Tribunal Act 1998 (Vic), ss 62, 78, 97, 98, 100, 104, 108, 109 and 148 – Patsuris v Gippsland and Southern Rural Water Corporation (2016) 218 LGERA 167 and Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 considered – Leave to appeal refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the First and Third Respondents | No appearance | Maddocks |
| For the Second Respondent | F Cockram | CIE Legal |
HIS HONOUR:
A. Introduction
On about 23 August 2019, the applicant commenced proceedings in the Victorian Civil and Administrative Tribunal (‘VCAT’) against the first and second respondents, particularly in respect of the paintwork on a Honda motor vehicle.[1]
[1]See, Transcript (‘T’) 45.
The applicant filed points of claim dated 27 November 2019. That document is closely typed and not easy to follow. At that point, the applicant claimed $38,574.32 based upon the purchase price of the vehicle ‘plus costs’.[2]
[2]Applicant’s court book (‘PCB’) 556-561
Over a lengthy period, multiple directions and other hearings took place at VCAT. It is unnecessary to summarise all aspects of those events; although, some are of present significance.
On 5 February 2020, the matter was listed for hearing before Member Buljan. The matter was not ready to proceed and the hearing was converted into a compulsory conference. When the parties were unable to reach agreement, the conference was converted into a directions hearing. Orders were made for, among other things, exchanges of expert reports and lists of witnesses.[3] The proceeding was re-listed for hearing on 6 July 2020.
[3]PCB 82-84.
Prior to that time, the applicant had seemingly summonsed at least Mery McDougall, a Sales Consultant at Garry & Warren Smith Pty Ltd, to give evidence at the hearing.
At directions on 18 June 2020, Deputy President Lulham noted that the applicant sought to join Dale Smith and Garry and Warren Smith Group as respondents, and, in that connection, directed that the applicant file and serve ‘proposed points of claim’.[4]
[4]PCB 562.
On about 25 June 2020, the applicant filed ‘additional points of claim’ which referred to Garry and Warren Smith Group and Dale Smith. The claim was said to have ‘increased by an amount of $2,535.20 plus $8.02 per day after 8 July 2020’. That document is no easier to follow than the one to which it was said to be additional.[5]
[5]PCB 563-565.
At directions on 1 July 2020, among other things, Senior Member Moriatis made orders that –
(a) the hearing date of 6 July 2020 be cancelled;
(b) the applicant be granted leave to amend his points of claim in the form of the ‘additional points of claim’;
(c) Garry & Warren Smith Group be joined as a third respondent to the proceeding; and
(d) the proceeding be re-listed for hearing after 29 July 2020.[6]
[6]PCB 85-87.
I should note that SM Moriatis did not grant leave to the applicant to join Dale Smith as a respondent.
By February 2021 –
(a) a further listed hearing date had been vacated;
(b) orders had been made to the effect that Member Buljan should not hear the case (as she had conducted the compulsory conference);
(c) the applicant had made a complaint to the Judicial Commission concerning SM Moriatis;
(d) the applicant had sought and obtained orders adjourning the matter to directions on 26 April 2021;
(e) the applicant had accused Deputy President Lulham of ‘obvious potential bias’; and
(f) the applicant was seemingly contemplating making an application under s 108 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’) seeking that the Tribunal be ‘reconstituted’.[7]
[7]PCB 88-95.
On about 11 March 2021, the applicant made an application for reconstitution of the Tribunal pursuant to s 108 of the VCAT Act, with a view to ‘removing’ DP Lulham from any hearing in relation to the proceeding.[8] That application was later heard by Judge Hampel, sitting as Vice President of VCAT.[9] Among other things, her Honour stated –
I am not satisfied the applicant has made good his assertions of bias, or reasonable apprehension of bias. He has not demonstrated anything other than an unhappiness with a decision adverse to him. That is not indicative of, let alone proof of bias. As such, no basis for reconstitution is made out.[10]
[8]PCB 96.
[9]PCB 99-107: Caspersz v Garry & Warren Smith Pty Ltd (Civil Claims) [2021] VCAT 501.
[10]Caspersz v Garry & Warren Smith Pty Ltd (Civil Claims) [2021] VCAT 501, [34].
At directions before DP Lulham on 26 April 2021, the applicant foreshadowed an amendment to his claim. In that regard, there had evidently been a recall of fuel pumps and the applicant sought to rely upon it. The Tribunal’s orders detailed the manner in which any proposed further amended points of claim should be prepared.[11] The matter was listed for hearing on 12 July 2021.
[11]PCB 96-98. See, in particular, order 2.
It seems that the applicant subsequently prepared a document entitled ‘proposed further amended points of claim’.
In chambers on 2 June 2021, DP Lulham recorded that the applicant’s ‘proposed further amended points of claim’ did not comply with the earlier order. The document had also purported to include a claim against Dale Smith, who was not a party. In substance, DP Lulham recorded that the proceeding would not be listed unless it were properly prepared for hearing. Among other things, DP Lulham cancelled the hearing date of 12 July 2021 and made another order detailing the manner in which any ‘Proposed Further Amended Points of Claim’ must be prepared.[12]
[12]PCB 108-111. See, in particular, order 4.
Similar orders in respect of continuing non-compliance by the applicant were made by DP Lulham on 6 August 2021. In substance, the applicant’s application for leave to amend was refused.[13]
[13]PCB 112-115.
Similar orders were again made by DP Lulham on 12 November 2021, although on that occasion orders were also made in respect of witness summonses. By that point, it was evident that the matter had been listed for hearing on 18 July 2022.[14]
[14]PCB 116-119.
In chambers on 8 December 2021, DP Lulham considered an email from the applicant concerning summonses to witnesses which had either been issued or were proposed to be issued.[15]
[15]Applicant’s affidavit affirmed 4 October 2023, pp.242-243 (‘4 October affidavit’).
By March 2022, the applicant had complained to the Judicial Commission in respect of DP Lulham and had also sought that he be removed from all proceedings involving the applicant.[16] In connection with the latter step, perhaps, the applicant made another application pursuant to s 108 of the VCAT Act seeking that the Tribunal be ‘reconstituted’.[17]
[16]PCB 120-121.
[17]See, PCB 213-214.
In that period, the lawyers for the second respondent seem to have been assembling objections to the various witness summonses issued at the behest of the applicant.[18]
[18]PCB 624-626.
On 8 June 2022, Senior Member Vassie conducted a directions hearing by telephone. The proposed hearing date of 18 July 2022 was vacated and orders were made with a view to the matter coming back for directions after 25 July 2022. In that regard, the senior member ordered as follows –
3.Any application by Honda Australia Pty Ltd for an order setting aside witness summonses, or for any other interlocutory order, must be made by an appropriately formal written application (together with the appropriate fee) filed and served, together with any affidavit material in support of the application, by 8 July 2022.
…
5.Honda Australia Pty Ltd has leave to be represented by a professional advocate at the adjourned directions hearing but not otherwise without further order.
6.By no later than 7 days before the adjourned directions hearing date the applicant must file and serve a document that sets out clearly exactly what orders that he will be asking the Tribunal to make at the directions hearing.
7.Notwithstanding the presiding Member’s view expressed today that an application under s 108 of the Victorian Civil and Administrative Tribunal Act 1998 is at present incompetent, that application is referred to a Presidential Member (but not Deputy President I. Lulham) for hearing and determination. The Tribunal notes that the applicant wishes it to be heard by the President of the Tribunal but it is not his right to decide who should hear it.[19]
[19]PCB 23-24.
In that context, among other things –
(a) on 8 July 2022, the second respondent made application for the following orders –
(a) that the proceeding be dismissed;
and in the alternative —
(b)granting it leave to be represented by a professional advocate for the remainder of the proceeding, including all further directions hearings and the final hearing;
(c)setting aside the witness summonses of Diarmuid Gordon, Dale Smith, Mery McDougall, Keith McPherson, Stephen Collins, Joe Gelsi, Farrel Braver and William McMinn;
(d)that the applicant pay conduct money and expenses to any or all of the summonsed witnesses should they be required to appear, prior to the hearing;
(e) that a final hearing urgently be listed;
(f)that the applicant be refused leave to further amend his points of claim.[20]
[20]PCB 138.
(b) that application was supported by an affidavit of Sonny Scott affirmed 8 July 2022 that, among other things, articulated the bases upon which the second respondent contended that the witness summonses issued to various witnesses should be set aside, including those to Dale Smith, Managing Director at Garry & Warren Smith Pty Ltd, Mery McDougall, Sales Consultant at Garry & Warren Smith Pty Ltd and Stephen Collins, Director at Honda Australia Pty Ltd;[21]
[21]PCB 139-148. I note that the applicant responded with an affidavit affirmed 22 July 2022: PCB 149-159.
(c) on 4 August 2022 at 8:28:39am, the applicant emailed the VCAT Registrar, among others, referring to his application for reconstitution and attaching an ‘additional document’;[22]
[22]PCB 173-177. That email, together with the ‘additional document’, comprise Annexure A to these reasons.
(d) the ‘additional document’ was closely typed, but seems primarily to have concerned –
(i) the applicant’s application for ‘reconstitution’;
(ii) his opposition to the various relief sought by the second respondent;
(iii) his ‘proposed further amended points of claim’; and
(iv) any further listing of the matter for final hearing;
(e) seemingly at the same time, on 4 August 2022 at 8:28:39am, the applicant sent an email to the VCAT Registrar, among others, that was similar to the email to which I have earlier referred, but was partly unintelligible and, for whatever reason, may not have attached the ‘additional document’;[23] and
(f) the matter was listed for directions on 11 August 2022.
[23]PCB 262-263. That email comprises Annexure B to these reasons.
In due course, the matter proceeded before SM Vassie electronically on 11 August 2022. The present proceeding concerns several of the orders made on that occasion.
I have read the 91 page transcript of that hearing, and also listened to the audio recording. The tone and content of various statements made by the applicant during the course of that hearing are, on no view, appropriate. The following passage should be sufficient to illustrate the point –
MR CASPERSZ: This hearing is a complete waste of time. All you’ve been done, from where I see it - - -
SENIOR MEMBER: Well, we probably all agree with that but I have got to go through it I am afraid.
MR CASPERSZ: Respectfully, all you've been doing is asked by Deputy President Lulham to make these orders to protect his mates.
SENIOR MEMBER: Absolute rubbish, Mr Caspersz.
MR CASPERSZ: That is not rubbish. It is absolutely true. You’re his lackey. I’m telling you what you've done is absolutely wrong.
SENIOR MEMBER: The way you are behaving is - the way you are behaving is a disgrace.
MR CASPERSZ: (Indistinct) Steven Collins are key to my case and what you’ve done is protected them. This is going to the Supreme Court. You’re going to go to the Supreme Court because what I’m going to do is I’m going to lodge a case against you and Deputy President Lulham.
SENIOR MEMBER: Very good. Now, I have made my decision about the summons as to witness.
MR CASPERSZ: It’s not very good. It’s very true.
SENIOR MEMBER: Thank you.
MR CASPERSZ: You’re as corrupt as all of the others because all Deputy President Lulham has stuck you in here. That’s why he hasn’t done them. That's why the VCAT president hasn’t done the reconstitution. You’re all corrupt and let me say this. A copy of this recording and you’re all more than likely – you’ll actually delete the recording, more than likely what’s happened to me in the past is that you’ll go ahead and delete this recording. So it can’t be produced to - you have not demonstrated any legal basis for making your decision. You’ve got no hope unless, of course, you paid someone at the Supreme Court of Victoria as well.
SENIOR MEMBER: Mr Bierenkrant [the representative of the second respondent], your next application in logical order - - -
MR CASPERSZ: You’re all corrupt.
SENIOR MEMBER: Is - - -
MR CASPERSZ: You have got no legal and I’ve told you this at the beginning of the hearing and during the course of that, I am participating in this under protest. What does that mean?
SENIOR MEMBER: Yes.
MR CASPERSZ: I am not - I am not participating in this under any free will of my ability.
SENIOR MEMBER: Very good.
MR CASPERSZ: So what you’ve done again, you have not provided procedural fairness and natural justice to a party in the proceeding under s97 and 98 of the VCAT Act. And I’ll say this, that VCAT purposely gave me a wrong ID number for this hearing today as well. So you can access this video.[24]
[24]4 October affidavit, pp.542-545 of 1,267.
On 11 August 2022, the senior member ultimately recorded various matters as ‘background’ followed by 12 orders –
BACKGROUND
A.At a late stage of the directions hearing held today the applicant stated that he sought directions in accordance with his email to the Tribunal dated 4 August 2022. The presiding member could not locate the email during the hearing.
B. In fact the email had been filed.
C.From the email it appears that the only direction that the applicant sought was the referral of his application for reconstitution to a presidential member (not Deputy President I Lulham).
D. That referral had already been made in the order dated 8 June 2022. Nothing would be achieved by making that order for a second time.
E. However the Tribunal will still make the order that appears in paragraph 8 below and which the presiding Member made orally today.
ORDERS
1. The second respondent’s application for summary dismissal or striking out of the proceeding is refused.
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. To assist the applicant to understand how this order may be complied with, the tribunal offers the following as examples only and does not suggest that they necessarily reflect the case that the applicant wishes to make:
“(1) On (date, month and year) the applicant left his vehicle (identifying it) in the custody of the first respondent for the purpose of (identifying the purpose)
(2) At the time that the applicant left his vehicle in the first respondent’s custody on that day it was undamaged.
(3) On (date, month and year) when the applicant recovered possession of his vehicle it was in a damaged state. the damage was (describing it).
(4) On (date, month and year) the applicant again left his vehicle in the custody of the first respondent for …..
(5) (like 3)
(6) (like 4)
(7) On (date, month and year) the second respondent notified the applicant that it was recalling the fuel pump for his vehicle.
(8) the fuel pump that the second respondent had supplied for the vehicle was faulty in that (specify the fault)
(9) As a result of the above matter the vehicle has major defects and the applicant is entitled to reject it and recover the purchase price paid for it.
OR
(9) As a result of the above matters the applicant has suffered loss and damage (identify the amount and how they are arrived at).”
3.Each summons to witness addressed to Dale Smith, Mery McDougall and Stephen Collins is set aside.
4. The application to set aside all other summons to witnesses is refused.
5. The first respondent must make Mery McDougall available at the hearing to be cross examined on her statutory declaration dated 3 January 2020 unless no later than 14 days before the date fixed for the hearing of the proceeding the first respondent notifies the applicant in writing that it will not be relying upon the statutory declaration at the hearing.
6.The application for an order concerning conduct money is withdrawn.
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.
8. The hearing of all applications made in the applicant’s email to VCAT dated 4 August 2022 is adjourned to that directions hearing.
9.The second respondent has leave to be represented by a professional advocate at the further directions hearing but not otherwise without further order of the Tribunal.
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.
11. If the applicant seeks leave to join Dale Smith as a respondent he must file with VCAT in hard copy and served up on the first and second respondents an affidavit that sets out what claim he wishes to make against Dale Smith and what order he wishes VCAT to make against him.
12. The costs of the hearing today are reserved.[25]
[25]4 October affidavit, pp.863-865 of 1,267 (emphasis in original).
In the present proceeding, pursuant to s 148 of the VCAT Act, the applicant seeks leave to appeal in respect of orders 2, 3, 7, 8, 9, 10, 11 and 12. No application is made in respect of the balance of the orders made on 11 August 2022.
A great number of subsequent events occurred in or relating to the proceeding, including the following –
(a) on 21 September 2022, Quigley J, sitting as President of VCAT, dismissed the applicant’s ‘reconstitution’ application as misconceived. In that connection, her Honour stated –
14In effect, what the Applicant seeks to do is to attempt to dictate who should or should not conduct any future hearing of his proceeding. This attempt at ‘member shopping’ is entirely inappropriate and if acceded to would tend to undermine the independence of the Tribunal and the Tribunal’s processes.
15In this proceeding, no hearing has commenced and no member has been allocated to the hearing of the proceeding. It is still in the pre-hearing case management phase.
16I note that I have reviewed the audiotape of the directions hearing before Senior Member on 11 August 2022. Senior Member properly attempted, (unsuccessfully given the Applicant’s demeanour and aggressive response to him) to assist the Applicant and to explain what was needed to resolve the interlocutory issues before him and get the proceeding ready for a hearing. At that directions hearing, Senior Member attempted on several occasions to explain to the Applicant that an application for reconstitution cannot be made when the hearing has not yet commenced. Senior Member’s assistance fell on deaf ears.
17There is no jurisdiction to reconstitute the Tribunal engaged by the circumstances here. The application is misconceived and will be dismissed
…
24In each of the allegations I am satisfied that on reviewing the orders made by Deputy President Lulham, Senior Member Vassie and Judge Marks, and the correspondence and affidavits filed by the Applicant, that the complaints made are spurious and at their base demonstrate dissatisfaction with the procedural decisions made and the exercise of discretion available to the respective members in the conduct of the proceeding.
25Whilst this application appears to be directed particularly at Deputy President, the Applicant also raises objections to the proceeding being heard by Vice President Judge Marks and Senior Member. I am of the view that what this demonstrates is a course of conduct by this Applicant to attempt to avoid his proceeding being heard by anyone who makes an adverse finding against him no matter how meritorious that adverse finding may be.
26It would be an improper use of the reconstitution power to order a reconstitution of the Tribunal based on a perception that mere dissatisfaction with the outcome of a hearing by an Applicant amounts to bias or to a suggestion that a Tribunal member might not bring an open mind to the determination of the matters before that member.
27Equally, it would be an improper use of the reconstitution power to effectively forum shop, avoiding any member who has made an adverse merits finding or a direction which is not to the litigant’s liking.[26]
[26]PCB 484-486: Caspersz v Garry & Warren Smith Pty Ltd (Civil Claims) [2022] VCAT 1102.
(b) on 15 December 2022, SM Vassie dismissed, without adjudication on the merits, the applicant’s application for a stay of interlocutory orders;[27]
[27]PCB 608-615: Caspersz v Garry & Warren Smith Proprietary Limited (Civil Claims) [2022] VCAT 1441.
(c) on 8 February 2023, JR Baker dismissed an application made by the applicant to the Supreme Court seeking a stay of the interlocutory orders made by SM Vassie on 11 August 2022;
(d) on 23 May 2023, Moore J dismissed the applicant’s appeal from the orders of JR Baker;[28]
[28]Caspersz v Garry & Warren Smith Pty Ltd [2023] VSC 305.
(e) on 28 June 2023, DP Lulham allowed an application brought under s 78 of the VCAT Act and dismissed the applicant’s proceeding as against the second respondent;[29]
[29]4 October affidavit, pp.191-233 of 1,267: Caspersz v Garry & Warren Smith Pty Ltd (Civil Claims) [2023] VCAT 739. I note that DP Lulham also subsequently ordered that the applicant pay the costs of the second respondent incurred in the period ’12 April 2022 to date’: Caspersz v Garry & Warren Smith Proprietary Limited (Civil Claims) (Costs) [2023] VCAT 987: 4 October affidavit, pp.169-188 of 1,267.
(f) on 15 September 2023, Irving AsJ dismissed the applicant’s application for leave to appeal to the Supreme Court in respect of other interlocutory orders made at VCAT;[30]
(g) the applicant subsequently applied for leave to appeal to the Court of Appeal from the orders of Irving AsJ; and
(h) on 31 October 2023, Niall JA refused leave to the applicant to appeal from the orders of Quigley J.[31]
[30]Caspersz v Garry & Warren Smith Pty Ltd & Ors [2023] 555.
[31]Caspersz v Garry & Warren Smith Pty Ltd [2023] VSCA 264.
B. The present proceeding
As I have indicated, pursuant to s 148 of the VCAT Act, the applicant commenced the present proceeding by notice of appeal dated 8 September 2022.
The notice of appeal states the following purported questions of law –
Question of Law 1.
Did VCAT (Senior Member Vassie) correctly apply sections 97 and 98 of the VCAT Act 1998 with respect to Procedural Fairness and Natural Justice to his decision to state with bias and prejudice towards myself, the Applicant in VCAT proceeding C6315/2019 (‘the VCAT proceeding’), at paragraph C. of VCAT’s orders of 11th August 2022, that the Applicant’s email of 4th August 2022 appeared only to seek one direction for the reconstitution and thus enable the Applicant to be heard fairly on his requested application for orders (being provided in compliance with VCAT’s order 6. of 8th June 2022) at the directions hearing on 11th August 2022 in the VCAT proceeding?
Question of Law 2.
Did VCAT (Senior Member Vassie) correctly apply sections 97 and 98 of the VCAT Act 1998 with respect to Procedural Fairness and Natural Justice and section 108 of the VCAT Act 1998 in deciding and/or acting with ‘premeditated’ bias and prejudice towards myself, the Applicant in the VCAT proceeding, to not action his/its own order 7. of 8th June 2022 PRIOR to or at the directions hearing on 11th August 2022 in the VCAT proceeding?
Question of Law 3.
Following Question of Law 1. and/or 2. above and/or independently, did VCAT (Senior Member Vassie) correctly apply sections 97 and 98 of the VCAT Act 1998 with respect to Procedural Fairness and Natural Justice in deciding and/or acting with ‘premeditated’ bias and prejudice towards myself, the Applicant in the the [sic] VCAT proceeding, to not review and/or read and/or hear the Applicant’s application for orders, being filed and served strictly in accordance VCAT’s order 6. of 8th June 2022, PRIOR to and/or at the directions hearing on 11th August 2022 in the VCAT proceeding, and thus be in contravention of its own orders of 8th June 2022, and then adjourn all of the Applicants applications to the next directions hearing in the VCAT proceeding?
Question of Law 4.
Following Question of Law 1, 2. and/or 3. above and/or independently, did VCAT (Senior Member Vassie) correctly apply sections 97 and 98 of the VCAT Act 1998 with respect to Procedural Fairness and Natural Justice and section 104 of the VCAT Act 1998 in deciding, with ‘premeditated’ bias and prejudice towards myself, the Applicant in the VCAT proceeding, by firstly proceeding to hear an application by the Second Respondent in accordance with section 104 of the VCAT Act 1998 and then secondly setting aside the summons to witness addressed to Mery McDougall based on an incorrect completely different set of reasons independent to that of the Second Respondent, providing contradictory statements to the Applicant, and also completely ignore the valid reasons for the summons to witness of Mery McDougall provided by the Applicant?
Question of Law 5.
Following Question of Law 1, 2. and/or 3. above and/or independently, did VCAT (Senior Member Vassie) correctly apply sections 97 and 98 of the VCAT Act 1998 with respect to Procedural Fairness and Natural Justice and section 104 of the VCAT Act 1998 in deciding with ‘premeditated’ bias and prejudice towards myself, the Applicant in the VCAT proceeding, by firstly proceeding to hear an application by the Second Respondent in accordance with section 104 of the VCAT Act 1998 and then secondly setting aside the summons to witness addressed to Dale Smith based on an incorrect completely different set of reasons independent to that of the Second Respondent, and also completely ignore the valid reasons for the summons to witness of Dale Smith provided by the Applicant?
Question of Law 6.
Following Question of Law 1, 2. and/or 3. above and/or independently, did VCAT (Senior Member Vassie) correctly apply sections 97 and 98 of the VCAT Act 1998 with respect to Procedural Fairness and Natural Justice and section 104 of the VCAT Act 1998 in deciding with ‘premeditated’ bias and prejudice towards myself, the Applicant in the VCAT proceeding, by firstly proceeding to hear an application by the Second Respondent in accordance with section 104 of the VCAT Act 1998 and then secondly setting aside the summons to witness addressed to Stephen Collins based on an incorrect completely different set of reasons independent to that of the Second Respondent, and also completely ignore the valid reasons for the summons to witness of Stephen Collins provided by the Applicant?
Question of Law 7.
Following Question of Law 1, 2. and/or 3. above and/or independently, did VCAT (Senior Member Vassie) correctly apply sections 97 and 98 of the VCAT Act 1998 with respect to Procedural Fairness, Natural Justice and the mandatory manner in which each proceeding MUST be conducted and determined under section 98 of the VCAT Act 1998 and also section 102 of the VCAT Act 1998, in deciding with ‘premeditated’ bias and prejudice towards myself, the Applicant in the VCAT proceeding, to order that the Applicant ‘must’ file and serve a ‘Revised points of Claim’ solely because of the requirement to outline a non complex further additional subject vehicle fault of a faulty fuel pump, which is to supersede and override ALL previous Points of Claim of the Applicant which have previously been accepted by way of VCAT’S previous orders into the VCAT proceeding and also accepted and responded to previously by ALL of the parties to the VCAT proceeding?
Question of Law 8.
Following Question of Law 1, 2. and/or 3. above and/or independently, and also related to Question of Law 7. above, did VCAT (Senior Member Vassie) correctly apply sections 97 and 98 of the VCAT Act 1998 with respect to Procedural Fairness and Natural Justice and section 78 of the VCAT Act 1998 when ordering that if the applicant has not complied with the provision of ‘Revised Points of Claim’ per VCAT order 2. of 11th August 2022 that 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 being heard and determined during the further directions hearing?
Question of Law 9.
Following Question of Law 1, 2. and/or 3. above and/or independently, has VCAT (Senior Member Vassie) correctly applied sections 97 and 98 of the VCAT Act 1998 with respect to Procedural Fairness, Natural Justice and the mandatory manner in which each proceeding MUST be conducted and determined under section 98 of the VCAT Act 1998, and also section 102 of the VCAT Act 1998, when ordering that if the applicant seeks leave to join Dale Smith as a respondent he must file with VCAT in hard copy and serve upon the first and second respondents an affidavit that sets out what claim he wishes to make against Dale Smith and what order he wishes VCAT to make against him?
Question of Law 10.
Following Question of Law 1, 2. and/or 3. above, and/or independently, has VCAT (Senior Member Vassie) correctly applied sections 97 and 98 of the VCAT Act 1998 with respect to Procedural Fairness and Natural Justice in deciding with ‘premeditated’ bias and prejudice towards myself, the Applicant in the VCAT proceeding, to order that the Second Respondent be granted leave (under section 62) of the VCAT Act 1998 to be represented by a professional advocate at the further directions hearing despite other VCAT Members refusing such leave previously since 6th November 2019, and his prior contradictory reasons during the 11th August 2022 directions hearing why he would NOT provide ongoing leave to the Second Respondents to be represented by a professional advocate?
Question of Law 11.
Following Question of Law 1, 2. and/or 3. above, and/or independently, has VCAT (Senior Member Vassie) correctly applied sections 97 and 98 of the VCAT Act 1998 in deciding with ‘premeditated’ bias and prejudice towards myself, the Applicant in the VCAT proceeding, to order that the costs for the VCAT hearing held on 11th August 2022 be reserved for the Respondents despite that the majority of that directions hearing was actually spent hearing and determining the applications made and called for by the Second Respondent and the VCAT Members contradictory prior statements during the directions hearing of the Second Respondents potentially escalating legal costs when leave to be represented by a professional advocate is granted?
The notice of appeal also directs argument to ‘grounds of appeal’ that correspond broadly with the purported questions of law.
It will be evident that, one way or another, each question or ground seeks to advance a complaint concerning procedural fairness, natural justice, bias and/or prejudice.
In terms of relief, the applicant seeks leave to appeal, the quashing of the orders identified as under challenge and a remittal of the proceeding to VCAT for rehearing.
In respect of the latter step, the applicant seeks that any rehearing not be before ‘Deputy President Lulham and Senior Member Vassie (and any other Tribunal Member who has a predetermined bias in the VCAT proceeding)’.
The applicant prepared and filed an e-court book of 1,324 pages. The e-court book contains nine closely typed affidavits of the applicant and four affidavits prepared on behalf of the second respondent. The affidavits exhibit hundreds of pages of documents. The e-court book also contains written submissions prepared by the applicant and second respondent, albeit that the applicant’s various affidavits are also in the style of submissions, at least in part.
The first and third respondents indicated that they would not participate in the hearing and would abide the result of the proceeding.
Two preliminary issues arose at the hearing. The applicant sought that the matter be referred for Court-annexed mediation and also sought to rely upon a further (and therefore tenth) affidavit affirmed on 4 October 2023. That affidavit comprises 20 closely typed pages together with a further 1,247 pages of exhibited documents. The second respondent opposed both applications.
For reasons delivered ex tempore, I refused to refer the matter for Court-annexed mediation but, in the special circumstances presented, acceded to the applicant’s application to rely upon his tenth affidavit. Among other things, the documents exhibited to that affidavit include the transcript of the hearing before SM Vassie on 11 August 2022.[32]
[32]Remarkably, despite the very great volume of the e-court book as well as a ‘supplementary e-court book’ of 1,225 pages prepared by the second respondent but ultimately not relied upon, none of that material seems to have included the transcript of the hearing before SM Vassie on 11 August 2022.
It is presently sufficient to say that the great profusion of material as well as the rather impenetrable style of the various documents prepared by the applicant did not assist in identifying the presently relevant issues or arguments either precisely or economically.
To some extent that was remedied in the oral addresses. In particular, the applicant sought to address his seemingly overarching complaints of ‘prejudice’, ‘bias’, denial of procedural fairness and breach of natural justice as well as the enumerated questions of law and grounds of appeal.
For its part, the second respondent pointed to the interlocutory nature of the orders made by the Tribunal on 11 August 2022 together with subsequent events said to be indicative of futility and submitted that the application for leave to appeal should be refused.
C. Applicable principles
Section 148 of the VCAT Act provides that, with leave, a party may appeal from an order of the Tribunal, on a ‘question of law’, to the Trial Division of the Supreme Court.
The Trial Division may grant leave only if satisfied that the appeal has a real prospect of success. Even if the Court is satisfied that an appeal has a real prospect of success, in some circumstances leave may nonetheless be refused in the exercise of a residual discretion.[33]
[33]Cf., Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331, [16], Myers v Medical Practitioners’ Board of Victoria (2007) 18 VR 48, [28]-[29], Metricon Homes Pty Ltd v Softley (2016) 49 VR 746, [18] and Molonglo Group (Australia) Pty Ltd v Cahill [2018] VSCA 147, [96].
I should add that s 148 is in restricted terms and does not confer a general right of appeal. The proceeding is in the nature of judicial review and the identification of a question of law is a precondition to the exercise of any right of appeal. The question or questions of law are the subject matter of any such appeal.[34]
[34]Patsuris v Gippsland and Southern Rural Water Corporation (2016) 218 LGERA 167, [41]-[47].
Notwithstanding the above, a breach of the rules of natural justice can be an error of law and possibly also a jurisdictional error.
In that regard, as I have noted, the applicant variously alleges that –
(a) the senior member was actuated by ‘adverse premeditated bias and prejudice’; and
(b) he was denied procedural fairness and natural justice.
In that connection, the applicant alleges actual bias and also contends that a fair-minded lay observer might reasonably have apprehended that the senior member might not bring an impartial mind to the resolution of the questions required to be determined.[35]
[35]See, among other authorities, Johnson v Johnson (2000) 201 CLR 488, [11]-[14] and Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [6].
In connection with his various arguments, the applicant relies upon several provisions of the VCAT Act, particularly ss 62, 78, 80, 97, 98, 100, 102, 104 and 108.[36]
[36]I note that in the course of oral argument the applicant referred rather compendiously to ss 62, 78, 97, 98, 102, 104 and 108 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’), VCAT practice notes 1, 3 and 5 and s 24 of the Charter of Human Rights and Responsibilities Act 2006 (Vic): T66. In my view, none of those further references alter either the substance of the applicant’s various arguments or their ultimate disposition.
It is not necessary to extract all of those sections in full. However, the applicant places particular reliance upon ss 80, 97, 98, 104 and 108 which provide, relevantly, as follows –
80 Directions
(1)The Tribunal may give directions at any time in a proceeding and do whatever is necessary for the expeditious or fair hearing and determination of a proceeding.
…
97 Tribunal must act fairly
The Tribunal must act fairly and according to the substantial merits of the case in all proceedings.
98 General procedure
(1) The Tribunal—
(a) is bound by the rules of natural justice;
(b)is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures;
(c) may inform itself on any matter as it sees fit;
(d)must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit.
…
104 Witness summons
(1) The principal registrar—
(a) may; and
(b) if directed by the Tribunal, must—
issue a summons to a person to attend the Tribunal to give evidence and produce any documents that are referred to in the summons.
…
108 Reconstitution of Tribunal
(1)At any time before the conclusion of the hearing of a proceeding—
(a)a party may apply to the Tribunal for the reconstitution of the Tribunal for the purposes of the proceeding; or
(b)the President or a member of the Tribunal as presently constituted may give notice to the parties that the President or member seeks the reconstitution of the Tribunal for the purposes of the proceeding.
(2)If an application is made under subsection (1)(a) or notice is given under subsection (1)(b)—
(a)a presidential member, after allowing the parties to make submissions, may decide that the Tribunal should be reconstituted; and
(b) if so, the President must reconstitute the Tribunal.
(3)If the Tribunal is reconstituted for the purposes of a proceeding, the reconstituted Tribunal may have regard to any record of the proceeding in the Tribunal as previously constituted, including a record of any evidence taken in the proceeding.
D.Questions/grounds 1, 2 & 3: the overarching complaint, the earlier orders, the email of 4 August 2022 and paragraph C of the orders made on 11 August 2022
As I have indicated, all of the applicant’s 11 purported questions of law and associated ‘grounds of appeal’ were infused with an overarching complaint to the effect that the senior member had been ‘prejudiced’ and ‘biased’ and, in various ways, the applicant had been denied procedural fairness and natural justice.[37]
[37]In that connection, each of the purported questions of law referred, particularly, to ss 97 and 98 of the VCAT Act (n 36).
In a sense, consideration of the overarching complaint is apt to address many if not all of the applicant’s purported questions of law and associated grounds of appeal.
As outlined earlier, the hearing on 11 August 2022 occurred in a context in which, over a considerable period, the applicant had –
(a) taken issue with other members of VCAT and made two applications for ‘reconstitution’ – one of which, as at 11 August 2022, had yet to be heard and determined;
(b) failed to prepare proposed points of claim in the manner directed by the Tribunal; and
(c) been issuing witness summonses to various purported witnesses.
For its part, the second respondent had indicated that it would seek that the proceeding be dismissed; alternatively, that it be granted leave to be represented by a professional advocate, the summonses to various identified persons be set aside, the applicant be refused leave to amend his points of claim and the matter be listed for an urgent final hearing.
In a general sense, the applicant’s ‘additional document’ of 4 August 2022 (which is within Annexure A to these reasons) was directed to those issues as well as to opposing the relief sought by the second respondent. As I have noted, there seems to have been a partly unintelligible version of the same email which may not have attached the ‘additional document’ (which is Annexure B to these reasons).
I have earlier referred to the 91-page transcript of the hearing conducted electronically on 11 August 2022; as well as the audio recording of more than 2½ hours. The applicant’s overarching and other complaints invite careful consideration of that material.
In that regard, after taking appearances, the senior member relevantly indicated that he would deal with the second respondent’s application for orders and then any directions sought by the applicant.[38]
[38]4 October affidavit, p.474 of 1,267.
The representative of the second respondent referred to the supporting affidavit of Mr Scott and then addressed the second respondent’s application to the effect that the applicant’s proceeding should be dismissed on the ground that it had been conducted vexatiously. In particular, the representative stated –
Specifically, in relation to failing to comply with orders. Namely, 16 April 2021 and 2 June 2021, which it [the Tribunal] did afford the applicant opportunities to file his claim in the appropriate format. As the proceeding is currently plead[ed] and as he [proposes] to plead his proceeding, it’s our view that it’s – the materials are voluminous and it is extremely tough to respond to those points of claim despite the opportunity [afforded] to the applicant. He’s failed to actually put it into a proper manner and he does seek further orders to further amend his claim almost three years after the proceeding [commenced].[39]
[39]4 October affidavit, p.475 of 1,267.
Among other things, the senior member observed that while it was true that the applicant had not complied with the order of 6 August 2021, his non-compliance might not have been ‘deliberate or wilful’. The senior member then raised the issue with the applicant and, in so doing, identified the substance of the deficiencies in the applicant’s document and illustrated the manner in which such documents should be prepared.[40]
[40]4 October affidavit, p.475-477 of 1,267.
From that point –
(a) the applicant complained about not having or not having had ‘proper audio or video’, although he had, of course, announced his appearance at the commencement of the hearing and does not seem thereafter to have been hampered in any significant way;
(b) the applicant raised his ‘reconstitution’ application and submitted that it ‘must be done’, seemingly meaning heard and determined, before the directions hearing ‘actually takes place’;
(c) the applicant insinuated that the senior member had not done what he had, in fact, earlier ordered – namely, refer the application to a Presidential Member ‘for hearing and determination’;
(d) the applicant queried the manner in which various documents had been served;
(e) in that context, the senior member patiently sought to bring the applicant back to the issue of the application for summary dismissal and said that he was ‘very reluctant to do it’, but that he was attempting to give the applicant guidance as to ‘how to set out the points of claim properly’; and
(f) in response to which the applicant commenced to submit, in substance, that the Tribunal could not examine or query the form of his points of claim because they had been ‘accepted by the Tribunal’.[41]
[41]4 October affidavit, p.477-482 of 1,267.
In respect of the latter submission, the applicant contended that the senior member was ‘wrong’, had not ‘read the file’ and that the issues raised in relation to his points of claim were ‘the Tribunal’s fault’, specifically the fault of DP Lulham.[42]
[42]4 October affidavit, p.483 of 1,267.
The senior member sought to clarify the submission with the representative of the second respondent, who confirmed that the submission was that ‘the way which [the applicant] has purported to plead his case is unintelligible’.[43]
[43]4 October affidavit, pp.483-484 of 1,267.
The applicant thereafter submitted, repeatedly, that nothing could now be done because ‘it’s already been accepted’. In the course of those submissions, the applicant said that if a ‘wrongful decision’ were made, he would challenge it ‘at the Supreme Court’.[44]
[44]4 October affidavit, pp.484-490 of 1,267.
The senior member sought to explain as follows –
… I don’t think that the order that you’re relying on means that what you’ve filed as a points of claim is [inviolable] and perfect. And can’t be touched by anybody. Because in my view, it isn’t perfect by any means. And you should be required to put it in a form that’s intelligible, particularly to Honda.
…
… my tentative view is that I should not allow the application for summary dismissal. But I should require you, within a fairly generous period of time, which I think should be six weeks, to file and serve a further version of points of claim, in accordance with an order I’m going to make.
And I’ve given you some idea of the guidance I propose to put in the order, as to how you should express it, so that everybody knows what the defects [in the vehicle] are, and why you say it’s Garry and Warren Smith’s fault, or Honda’s fault. And then the matter can proceed much more clearly than it is at the moment. …[45]
[45]4 October affidavit, pp.490-491 of 1,267.
The applicant queried whether the senior member had reviewed the material sent in by the parties (which was confirmed) and otherwise, at some length, continued to submit that his points of claim had ‘already been accepted’ and ‘responded to’. In that connection, the applicant submitted that he had complied with earlier orders and then accused the representatives of the second respondent of having ‘deceived the Tribunal and also myself’.[46]
[46]4 October affidavit, pp.492-498 of 1,267.
The senior member sought to reign in the applicant’s various and repeated submissions by imposing a time limit.[47]
[47]4 October affidavit, pp.499-500 of 1,267.
Ultimately, the senior member ruled, for reasons delivered ex tempore, that the second respondent’s application for summary dismissal should be rejected, but that the applicant should be required to plead his claim intelligibly. In that connection, the senior member rejected the second respondent’s submission that, in effect, the applicant should not be granted leave to re-plead.[48]
[48]4 October affidavit, pp.501-506 of 1,267.
At that point, it is sufficient to observe that –
(a) the senior member addressed both the summary dismissal application and, within that, the form of the applicant’s various points of claim;
(b) it was plainly open to the senior member to conclude that the applicant’s points of claim and additional points of claim were not in a satisfactory form;
(c) the fact that certain documents had been filed, even with leave, did not mean that the Tribunal could not require the applicant to prepare and file points of claim that were intelligible;
(d) in that regard, the Tribunal plainly has power to give directions and do whatever is necessary for the expeditious or fair hearing and determination of a proceeding;[49]
[49]VCAT Act (n 36) s 80(1).
(e) the applicant’s oral submissions were a mixture of repetitive, insistent, irrelevant, incorrect and discourteous;
(f) in particular, on the face of the earlier order of the senior member, the applicant’s submission that the order required the ‘reconstitution application’ to have been heard and determined prior to the directions hearing was not correct;[50]
[50]Order 7 made on 8 June 2022 referred the ‘reconstitution application’ to a Presidential member for hearing and determination. That order said nothing about when and how that application would be heard and determined. Nor was any order made staying the proceeding. To the contrary, the orders contemplated that the proceeding would be listed before SM Vassie on a date after 25 July 2022 – which is what occurred. At that time, the applicant’s ‘reconstitution application’ does not seem to have extended to SM Vassie: cf., PCB 213-214. That seems to have occurred after the hearing on 11 August 2022.
(g) in the circumstances, the senior member responded with considerable patience;
(h) on no view did the senior member fail to afford the applicant a fair opportunity to advance his submissions;
(i) the senior member ruled against the applicant’s submissions for the reasons outlined in the course of argument and ultimately delivered ex tempore; and
(j) it is not at all apparent that the senior member was or might have been prejudiced or biased – either actually, or in the view of a fair and reasonable observer – and nor was the applicant denied procedural fairness or natural justice.
The senior member then turned to the issue relating to the various witness summonses. In so doing, the senior member pointed out to the representative of the second respondent that there can be a difficulty in addressing such an issue prior to the final hearing; but the senior member also pointed out to the applicant that there is no point in calling a witness if it is a waste of time.[51]
[51]4 October affidavit, pp.507-509 of 1,267.
In the course of that exercise, the senior member came to consider the position of the various persons referred to in the affidavit of Mr Scott.[52] In that general connection, rather like the earlier submission advanced in respect of his points of claim, the applicant contended –
We have had three years of this, and all we’re doing is reinventing the wheel. The witnesses have already been approved by – the summons of the witnesses has already been approved by the [T]ribunal. You are not asking me whether they should be witnesses or not. Honda Australia, as a second respondent, doesn’t have the legal authority to reject the witnesses. They already had that opportunity before VCAT approved that.[53]
[52]4 October affidavit, pp.509-535 of 1,267.
[53]4 October affidavit, p.510 of 1,267.
Correctly, the senior member described that submission as ‘quite wrong’, and explained why that was so.[54]
[54]4 October affidavit, p.511 of 1,267.
In response, the applicant said he disagreed; although, no basis for that disagreement was identified beyond what he had already said. At that point, the senior member said that if he was wrong the applicant could appeal – which was a course that the applicant had already foreshadowed.[55]
[55]Ibid.
Thereafter, and quite wrongly, the applicant seems to have adopted the position that it was for the senior member to persuade him that the Tribunal had power to set aside a summons.
Quite plainly, however, the Tribunal has that implied power and the senior member patiently sought to explain that to the applicant by reference to the distinction between an order granting leave to issue a summons and the power to set a summons aside. The senior member also referred, correctly, to passages and references in the applicable text. The applicant quibbled with those references, and repeatedly said that it was all ‘wrong’. However, he referred to nothing much to the contrary beyond his own disagreement.[56]
[56]4 October affidavit, pp.512-528 of 1,267.
Commencing within that part of the hearing, the senior member was taken to the various particular apparent recipients of witness summonses. That included a consideration of Ms McDougall, who had seemingly prepared a statutory declaration (which initially could not be found), as well as Mr Smith and Mr Collins.[57]
[57]4 October affidavit, pp.519-522 of 1,267.
In respect of Ms McDougall, a practical solution emerged: the first and third respondents would rely upon the statutory declaration and the applicant could cross-examine Ms McDougall. The senior member sought patiently to explain the position to the applicant who rather defiantly and illogically declared that he was going to call Ms McDougall anyway.[58]
[58]4 October affidavit, pp.522 & 533-535 of 1,267.
In respect of Mr Smith and Mr Collins, it was apparent that each was a senior officer or executive, and the senior member perceived the risk that the relevant summonses were ‘vexatious’ or, put another way, lacking in a legitimate forensic purpose. The applicant sought to explain, but the manner and content of that explanation did not allay the senior member’s concerns.[59]
[59]4 October affidavit, pp.530-532 of 1,267.
Shortly thereafter, the applicant referred again to the ‘reconstitution application’ and then said –
… I don’t know the lines of chain and approval and all that, but at the end of the day, Deputy President Lulham and I’m – and I’m saying this because I don’t know, and I’m not asking you to respond. Deputy President Lulham is head of the – well, a part joint head or part head or whatever it is, of the – of the - of the civil claims list.[60]
[60]4 October affidavit, p.536 of 1,267.
The senior member confirmed that DP Lulham was the ‘head of the list’ and the applicant responded as follows –
Yeah, that’s right. So he calls the shots – he calls the shots what actually happens in the list, that’s my understanding of it. So then we’ve got a current – we’ve got a [T]ribunal in this proceeding that’s still under the current constitution of the [T]ribunal, and this is allowed to continue. This directions hearing should not have – should not have taken place until there’s a re-constitution or a determination of the current constitution of the [T]ribunal, and it still hasn’t happened yet.
So this – this whole hearing as far as I’m concerned has been a complete farce because it – because the Tribunal hasn’t been reconstituted or a determination hasn’t been made. The – the – president of the [T]ribunal has not even responded …[61]
[61]4 October affidavit, p.536 of 1,267.
The statements to which I have referred were inappropriate and unfortunate. At the very least, those statements disclose more than one unsupportable leap in logic. The applicant’s evident conception of the effect of both the senior member’s earlier order and the Tribunal’s reconstitution power is also incorrect.
Shortly thereafter, the senior member again imposed a time limit in respect of the submissions of the applicant (which tended to repeat the earlier submissions) and ultimately ruled in reasons again delivered ex tempore.[62] In particular, the senior member stated –
…
She [Ms McDougall] has sworn or made a statutory declaration. Mr Caspersz has told me today that he considers that 95 percent of it is … false. That means that it would be foolish of him to call her as a witness himself because her answer to him will not be helpful to him.
It will be sufficient to say this, that the first respondent, Garry & Warren Smith, must make Ms McDougall available for cross-examination at the hearing unless no later than 14 days before the date of the hearing, they notify Mr Caspersz that they will not be relying on the statutory declaration.
So on that basis, if they want to call her as a witness, she has got to be there. It will not help Mr Caspersz to call her himself. So I will set aside the summons to witness but I will make that order that I have indicated that I will be making.
…
Dale Smith, who is a Managing Director of Garry & Warren Smith Group and Steven Collins, Director of Honda. It seems to me to be highly unlikely that those men would have any useful evidence to give of the particular case of Mr Caspersz’s vehicle and I cannot see any reason for inconveniencing or vexing them by having them the subject of a summons to witness. I will set aside the summons, for - - - [63]
[62]4 October affidavit, pp.537-541 of 1,267.
[63]4 October affidavit, pp.540-541 of 1,267.
Quite wrongly, the applicant interrupted the senior member more than once in the course of that ruling.
Thereafter, the applicant embarked upon the outburst extracted earlier in these reasons. The audio recording discloses the applicant to have been yelling at various points during his outburst. Although the applicant had evidently lost his cool, no part of these reasons should be read as condoning that behaviour.
In my view, the passages to which I have referred do not support the applicant’s contentions that –
(a) the senior member was actuated by prejudice or bias;
(b) a fair minded observer might reasonably have apprehended that the senior member might not have brought an impartial and unprejudiced mind to the resolution of the issues;
(c) he was denied procedural fairness or natural justice.
Among other things, the senior member was quite open with the applicant concerning what was being considered and the applicant was afforded the opportunity to address the issues raised; albeit that he evidently elected to do so incorrectly, repetitively and not always courteously. To state the obvious, that the senior member ultimately ruled against the applicant’s various submissions does not mean that he was prejudiced, biased or that any reasonably held perception of bias could have arisen.
The senior member then turned to and dealt relatively briefly with the remaining issues raised by the second respondent; particularly the issues of professional representation and costs.[64] Those issues will be considered further in connection with the specific questions and grounds directed to them. It is presently sufficient to say that, in context, the relevant passages do not support the applicant’s overarching contentions of ‘prejudice’, ‘bias’, lack of procedural fairness or breach of natural justice.
[64]4 October affidavit, pp.545-551 of 1,267.
At that point, the senior member asked whether any further directions were sought and the applicant referred to the ‘orders requested on 4 August’. The senior member replied: ‘Goodness me, what are they? 4 August this year?’.[65]
[65]4 October affidavit, p.551 of 1,267.
It is apparent from that response that the senior member did not have the applicant’s ‘additional document’ dated 4 August 2022; and the senior member confirmed that shortly thereafter and asked if the applicant could read out what it said.[66]
[66]4 October affidavit, p.552 of 1,267.
The representative of the second respondent sought to assist, but the senior member correctly turned to the applicant for his assistance and asked ‘would you mind reading it out, please?’. The applicant responded by asking why the senior member did not have the document and then referred to a ‘travesty of justice’ and ‘corruption’.[67]
[67]4 October affidavit, pp.552-554 of 1,267.
From that point, the senior member invited the applicant to read the document out on a further eight occasions while the applicant refused to do so and otherwise dilated at length on a range of unhelpful and offensive topics.[68] The following passage is sufficiently representative of that to which I have referred –
I will read it out for what it’s worth but it’s a waste of time because you’re not going to understand anything and it’s going to go everything against what Deputy President Lulham has told you to do.[69]
[68]4 October affidavit, pp.554-559 of 1,267.
[69]4 October affidavit, p.559 of 1,267.
At that point the senior member queried whether the applicant might prefer that his application be adjourned to the next directions hearing, upon which the applicant finally relented and said that he would read out the document ‘under protest’.[70]
[70]Ibid.
The applicant then commenced to read the document in a manner interspersed with interpolations of a provocative and insulting kind while the senior member continued to prompt him to ‘go on with it’.[71] The part read out related particularly to the applicant’s ‘reconstitution application’.
[71]4 October affidavit, pp.559-562 of 1,267.
After that part had been read out, the senior member asked whether the ‘email’ sought ‘any other directions’ and the applicant responded that it was not an ‘email’, but a ‘document’. The senior member said that his patience had been exhausted and the applicant responded that he had not finished. The senior member asked about the ‘next order’ to which the applicant replied: ‘[b]ut you’re supposed to have the document’.[72]
[72]4 October affidavit, pp.562-563 of 1,267.
The hearing then ended as follows –
SENIOR MEMBER: Okay, I’m sick of this, Mr Caspersz.
MR CASPERSZ: Number 2 - - -
SENIOR MEMBER: No, I won’t hear you. I’ll adjourn all those applications to the next directions hearing on 22 September. Hearing is over now and I’ll (indistinct).
MR CASPERSZ: I don’t agree with that. I’m trying to read out this and you’re supposed to have it.
SENIOR MEMBER: I’m bringing the hearing to an end now. I’m adjourning whatever you applied for.[73]
[73]4 October affidavit, p. 563 of 1,267.
It will be evident that the transcript makes for alarming reading; and the experience of listening to the relevant parts of the audio recording can only be described as worse. It can never be appropriate to yell at a Tribunal member in the manner that is apparent during the recording. That is to say nothing of the contents of much of that which was said by the applicant, which cannot be condoned in any way.
In my view, the senior member displayed extraordinary patience and persistence in the face of behaviour by the applicant that was oppressive, offensive, sustained and quite unacceptable. I hope that such behaviour would never be repeated.
In light of all of that to which I have referred, it is sufficient to say that the patient efforts of the senior member to obtain the assistance of the applicant throughout the entirety of the hearing stand contrary to any suggestion that he could have been prejudiced or biased or, for that matter, that any fair minded lay observer might reasonably have apprehended that he might not have brought an impartial and unprejudiced mind to the determination of the issues presented.
More generally, to state the obvious, when a litigant behaves in a sustained, offensive, unco-operative and quite unacceptable way, as the applicant did on the present occasion, the ultimate decision of the Tribunal to bring the proceeding to an end when it was plain enough that no such assistance would be given, should not be thought to amount to a denial of procedural fairness or natural justice.
In the circumstances, there is no substance in the applicant’s overarching complaints of ‘prejudice’, ‘bias’, denial of procedural fairness and breach of natural justice and it follows that the complaints central to the applicant’s purported questions of law or grounds 1, 2 and 3 must be rejected.
That brings me to any residual complaints of error within the applicant’s purported questions of law and/or grounds 1, 2 and 3. In that regard –
(a) question 1 contends that the senior member erred in respect of the ‘email of 4th August 2022’ as shown by paragraph C of the orders made on 11 August 2022;
(b) question 2 contends that the senior member erred in failing to ‘action’ order 7 made on 8 June 2022 prior to the hearing on 11 August 2022; and
(c) question 3 contends that the senior member breached the orders of 8 June 2022 by failing to ‘review and/or read and/or hear’ the applicant’s ‘application document’ prior to or at the hearing on 11 August 2022.
Contrary to the contentions of the applicant, however –
(a) order 7 made on 8 June 2022 says nothing about the Tribunal being required to ‘review and/or read’ the applicant’s ‘additional document’ prior to the hearing on 11 August 2022;
(b) in light of the two different versions of the ‘email of 4th August 2022’ (compare Annexure A and Annexure B to these reasons) and the fact that the partly unintelligible version of that email may not have attached the ‘additional document’, it may well be that the Tribunal did not receive the ‘additional document’ prior to the hearing on 11 August 2022;
(c) that seems more likely than not to have occurred as it is plain enough that the senior member had not seen and did not have a copy of the ‘additional document’, although he did have and quite plainly had read other documents relating to the issues addressed during the hearing;
(d) the fact that paragraph C of the background matters recorded in the orders made on 11 August 2022 refers to ‘an email’ and not a ‘document’, and describes the ‘email’ as seeking only the referral of the applicant’s application for reconstitution to a presidential member, supports the conclusion that the senior member seems only to have uncovered the partly unintelligible version of the email of 4 August 2022 (Annexure B to these reasons) and not the version with the ‘additional document’ attached (Annexure A to these reasons);
(e) it follows that there can have been no error of the Tribunal in failing to ‘review and/or read’ that which it had not received prior to the hearing on 11 August 2022;
(f) there can also be no error of the Tribunal in failing to ‘hear’ the ‘additional document’ on 11 August 2022 – particularly in light of the mutliple requests made by the Tribunal of the applicant to read it or continue reading it, and his persistent failure to do so either promptly or courteously;
(g) order 7 made on 8 June 2022 had referred the reconstitution application to a Presidential member; and
(h) none of the orders made on 8 June 2022 required that the reconstitution application be heard and determined prior to the directions hearing on 11 August 2022 – indeed, those orders contemplated that, in the meantime, the proceeding would continue as it was listed for directions before SM Vassie on a date after 25 July 2022 (which, it transpired, was 11 August 2022).
In my view, there was also no injustice as –
(a) the substance of most if not all of the matters the subject of the ‘additional document’ were, in fact, addressed by the applicant during the course of the hearing on 11 August 2022;
(b) even if that were not so, the matters the subject of the applicant’s ‘additional document’ had been adjourned to the next directions hearing and could have been addressed on that occasion should the applicant have chosen to do so;
(c) it follows that the applicant was not denied the opportunity to be heard in respect of any matters that he reasonably sought to raise with the Tribunal – either in the hearing on 11 August 2022 or, alternatively, in the hearing scheduled to take place after 22 September 2022; and
(d) as to the reconstitution application, that was considered a short time later by a Presidential member, namely Quigley J, and dismissed.[74]
[74]The correctness of which, as I have noted, was recently confirmed by Niall JA: Caspersz v Garry & Warren Smith Pty Ltd [2023] VSCA 264.
In light of the above, the applicant’s various contentions in respect of questions 1, 2 and 3 must be rejected.
In the circumstances –
(a) no questions of law arise;
(b) the applicant has no real prospects of success in respect of any of his purported questions of law; and
(c) the applicant’s application for leave to appeal must be refused.
E.Questions/grounds 4, 5 & 6: Orders 3 & 5 made on 11 August 2022 concerning witness summonses to Mery McDougall, Dale Smith and Stephen Collins
The applicant’s overarching complaints are also central to his purported questions of law and grounds of appeal 4, 5 and 6 concerning the witness summonses directed to Mery McDougall, Dale Smith and Stephen Collins. For that reason alone, no leave should be granted in respect of those purported questions of law.
To the extent that there seem to be any residual complaints of error within those purported questions of law and/or grounds of appeal –
(a) the senior member was not restricted by or bound to accept the relevant submissions of the second respondent;
(b) as I have earlier noted, the senior member identified correctly that the Tribunal had an implied power to set aside any of the witness summonses concerned, including those issued to Mery McDougall, Dale Smith and Stephen Collins;
(c) the Tribunal also has a power to give directions and do whatever is necessary for the expeditious or fair hearing and determination of a proceeding;[75]
[75]VCAT Act (n 36) s 80(1).
(d) the senior member explained his tentative thinking in respect of the witness summonses, including those issued to Mery McDougall, Dale Smith and Stephen Collins, and afforded the applicant the opportunity to make relevant submissions;
(e) the senior member was no more restricted by or bound to accept the submissions of the applicant than he was in respect of the submissions of the second respondent; and
(f) the senior member was empowered to adopt the course variously taken in respect of the witness summonses issued to Mery McDougall, Dale Smith and Stephen Collins in respect of which he delivered ex tempore reasons.
In light of the above –
(a) the applicant’s contentions in respect of purported questions and grounds 4, 5 and 6 must be rejected; and
(b) leave to appeal in respect of those purported questions of law and grounds of appeal must be refused.
F.Questions/grounds 7, 8 & 9: Orders 2, 10 & 11 made on 11 August 2022 concerning revised points of claim, any further application for summary dismissal and any further application to join Dale Smith
Each of the purported questions of law 7, 8 and 9 and the associated grounds of appeal are also infused with the applicant’s overarching contentions concerning ‘prejudice’, ‘bias’, denial of procedural fairness and/or breach of natural justice which I have addressed earlier and for which no leave ought be granted.
Otherwise, in respect of any residual complaints of error –
(a) as I have noted, the Tribunal has power to give directions and do whatever is necessary for the expeditious or fair hearing and determination of a proceeding;[76]
[76]VCAT Act (n 36) s 80(1).
(b) the fact that documents had been filed, even with leave, did not mean that the Tribunal could not consider those documents and require that the applicant prepare and file points of claim that were intelligible;
(c) it was open to the senior member to conclude that the applicant’s points of claim and additional points of claim were neither satisfactory nor intelligible;
(d) it follows that the Tribunal was empowered to order that the applicant file and serve revised points of claim;
(e) it also follows that the Tribunal was empowered to make an order providing for the circumstance in which the applicant did not comply with the order that he file and serve revised points of claim; and
(f) the Tribunal was also empowered to make a direction concerning the form in which any further application by the applicant to join Dale Smith as a respondent should be made.
In light of the above –
(a) the applicant’s contentions in respect of purported questions and grounds 7, 8 and 9 must be rejected; and
(b) leave to appeal in respect of those purported questions of law and grounds of appeal must be refused.
G.Questions/grounds 10 & 11: Orders 2, 10 and 11 made on 11 August 2022 concerning representation by professional advocate and costs
Purported questions of law 10 and 11 each speak of ‘prejudice’ and ‘bias’ and purported question 10 also speaks to procedural fairness and natural justice. To the extent that those complaints are encompassed within the overarching complaint addressed above, no leave should relevantly be granted.
Otherwise –
(a) as earlier noted, the second respondent had been granted leave to be represented by a professional advocate at the hearing on 11 August 2022 and, prior to that hearing, in substance, the second respondent had applied for leave to be represented by a professional advocate for the remainder of the proceeding;
(b) the Tribunal had a discretionary power to make such an order, or a lesser order;[77]
[77]Cf., VCAT Act (n 36) s 62(1).
(c) the applicant opposed the application, but the Tribunal was not bound to accept his submissions;
(d) the Tribunal did not grant leave to the second respondent to be represented by a professional advocate for the remainder of the proceeding, but did grant leave for it to be represented by a professional advocate at the next directions hearing;
(e) in the circumstances, that determination seems to have been well open to the Tribunal;
(f) Division 8 of the VCAT Act contains a general provision to the effect that each party is to bear its own costs, but also contains specific provisions concerning whether a party might be ordered to pay all or a specified part of the costs of a proceeding;[78] and
(g) in the circumstances presented on 11 August 2022, it was well open to the senior member to reserve the question of costs to the future.
[78]See, in particular, VCAT Act (n 36) ss 109 and 111.
More broadly, in the present instance it is not possible to see that either of the relevant orders of the Tribunal gave rise to any injustice to the applicant.
In light of the above –
(a) the applicant’s contentions in respect of purported questions of law and grounds of appeal 10 and 11 must be rejected; and
(b) leave to appeal in respect of those purported questions of law and grounds of appeal must be refused.
H. Conclusion
In my view, there is no substance in any of the applicant’s purported questions of law and related criticisms directed to the events and orders made on 11 August 2022. There are no real prospects of success and, accordingly, leave to appeal must be refused.
I will hear the parties in respect of orders and any associated issues.
S C H E D U L E O F P A R T I E S
S ECI 2022 03693
BETWEEN:
| ADRIAN CASPERSZ | Applicant |
| - 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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