Djime v Kearnes

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2016 00169

HAMADOU DJIME	Applicant
v
SERGEANT MICHAEL KEARNES	First Respondent
CONSTABLE MATTHEW LE	Second Respondent
SENIOR CONSTABLE CAILLEY WILSON	Third Respondent
SENIOR CONSTABLE FLEUR VAN DER SLUIS	Fourth Respondent
STATE OF VICTORIA (VICTORIA POLICE)	Fifth Respondent

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JUDGE:	Cavanough J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 December 2016
DATE OF JUDGMENT:	28 February 2019 First Revision: 7 March 2019
CASE MAY BE CITED AS:	Djime v Kearnes
MEDIUM NEUTRAL CITATION:	[2019] VSC 117

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ADMINISTRATIVE LAW – Victorian Civil and Administrative Tribunal – Litigant in person – Claims of racial discrimination and related claims – Most claims summarily dismissed – Others dismissed at final hearing – Application for leave to appeal – Nature of appeal from summary dismissal of claims at VCAT – Unreasonable conduct by litigant – Poor prospects of success on appeal – Leave to appeal refused - Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 75, 148.

DISCRIMINATION LAW – Areas of activity – Provision of goods and services – Services by police – Equal Opportunity Act 2010 (Vic) ss 3, 44, 75, 99, 105.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the Respondents	Ms R J Sharp	Norton Rose Fulbright

HIS HONOUR:

Introduction and overview

The applicant, Mr Hamadou Djime, brought a proceeding in the Victorian Civil and Administrative Tribunal (‘VCAT’) against the respondents, comprising certain Victorian police officers and a party described in the application as ‘State of Victoria (Victoria Police)’. Broadly speaking, he claimed that he had been subjected to sexual harassment, racial discrimination, racial vilification, victimisation and contraventions of his human rights. His race-related claims were based on the circumstances that he came originally from Mali, Africa, had dark skin and wore his hair in dreadlocks. He relied on the Equal Opportunity Act 2010 (Vic) (‘the EO Act’), the Racial & Religious Tolerance Act 2001 (Vic) and the Charter of Human Rights & Responsibilities Act 2006 (Vic). His claims related to interactions said to have occurred between himself and various police officers – principally the police officers who were named as respondents – on a number of occasions between 2008 and 2014. VCAT identified 27 individual claims in total made by Mr Djime. These were designated by VCAT as claims (a) to (z) and (aa).

After evidence had been heard for two days, the respondents made an application to VCAT under s 75(1) of the Victorian Civil & Administrative Tribunal Act 1998 (‘the VCAT Act’) for the summary dismissal of the majority of Mr Djime’s claims. In response, by a reserved decision accompanied by detailed written reasons, VCAT summarily dismissed 21 of the 27 claims as misconceived or as lacking in substance.[1] Later, after several further hearing days, VCAT dismissed the remaining 6 claims as not having been proved. It did so by a further reserved decision, accompanied by a further set of detailed written reasons.[2]
[1]Djime v Kearnes (Human Rights) [2015] VCAT 941 (26 June 2015). Some of the claims that were found to be lacking in substance were also found to be an abuse of process.
[2]Djime v Kearnes (No 2) [2015] VCAT 2055 (23 December 2015).

Mr Djime seeks leave to appeal under s 148 of the VCAT Act from both of the Tribunal’s decisions. In the course of this proceeding, Mr Djime abandoned any challenge to VCAT’s decision-making with respect to seven of the claims that were dismissed.[3] Pursuant to an order made by an Associate Judge,[4] the application for leave to appeal and the proposed appeal have been heard together. Initially, the respondents asserted that the challenge to VCAT’s first decision was out of time. However, the respondents later indicated that they did not oppose any required extension of time.[5] It thus became unnecessary to decide whether an extension of time was required. To the extent, if any, that an extension of time was required, it was granted by an order that I made on 1 December 2016.
[3]See below.
[4]Order made by Mukhtar AsJ on 3 June 2016.
[5]Respondents’ outline of submissions dated 4 August 2016 (‘Respondents’ outline’) [23].

For the reasons that I will now summarise and which are set out in more detail below, I propose to refuse leave to appeal. Had I been prepared to grant leave to appeal, I would nevertheless have dismissed the appeal, for the same reasons, in the exercise of this Court’s undoubted discretion under s 148(7)(d) of the VCAT Act.[6]
[6]Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1, 18 [41]‑[44] (French CJ, Kiefel and Bell JJ), 72‑73 [225]‑[227] (Nettle J); Rampling v Emergency Services Superannuation Board (1994) 6 VAR 199, 213 (Brooking J, with whom Fullagar and Ormiston JJ agreed); Thomson Reuters, Victorian Administrative Law, vol 1 (at Update 187) [VCAT 148-480].

Most of the multifarious points that Mr Djime seeks leave to raise have no merit whatsoever. In any event, it would be futile to grant leave to appeal for the sole purpose for which Mr Djime seeks such leave. Mr Djime insists that the only relief or remedy he will accept is an order by this Court itself that the respondents pay him monetary compensation or damages. However, it would plainly not be open to this Court to make any such order in this proceeding in the circumstances of this case. As I will explain, if I were satisfied that either of VCAT’s decisions was affected by relevant error,[7] the very best that this Court could do for Mr Djime in the circumstances of this case would be to set aside the relevant decision or decisions (or the relevant part or parts thereof) under s 148 of the VCAT Act and remit the relevant claim or claims to VCAT for rehearing and redetermination. However, Mr Djime refuses to countenance the making of any order to this effect. He has repeatedly and vehemently insisted that he will not return to VCAT under any circumstances.
[7]As to what might amount to ‘relevant error’ in relation to a decision by VCAT under s 75 of the VCAT Act, see below.

Nevertheless, being mindful that Mr Djime was not legally represented either before VCAT or before this Court, I have anxiously considered whether VCAT may have made any relevant error and whether, if so, there should be a grant of leave to appeal (to any extent), despite Mr Djime’s expressed attitude.

As will be seen, in considering whether VCAT may have made any ‘relevant error’ in its first decision, it has occurred to me that the combined effect of s 75(5) and s 148 of the VCAT Act may be that, in relation to challenges to decisions made by VCAT upon summary dismissal applications made under s 75 of the VCAT Act, the true issue for the Court may not be whether VCAT made some specific error of law but rather whether VCAT’s decision on the summary dismissal application was the correct or preferable one. However, I have not finally decided this point, for two reasons. First, the point was not raised by either party or by the Court during the course of the proceeding and so none of the parties has been heard on it; and, second, it would remain appropriate to refuse Mr Djime’s application for leave to appeal either way.

In deciding whether a grant of leave to appeal should be made, I have been guided by the observations of Phillips JA (with whom Tadgell and Batt JJA agreed) in Secretary to the Department of Premier and Cabinet v Hulls[8] to the effect that, ultimately, what must govern is the justice of the case as it appears to the court from which leave to appeal is sought, and that that means justice to all parties, not just the applicant.
[8][1999] 3 VR 331, 337 [16]. See also Metricon Homes Pty Ltd v Softley (2016) 49 VR 746, 753‑754 [17]‑[18]; Khan v VCAT [2018] VSCA 351 [92], [130]‑[132].

VCAT was confronted with an unusually difficult and burdensome task in this case. Mr Djime’s paperwork was disorganised, prolix and expressed in highly intemperate language. Likewise his oral evidence and his oral submissions. He speaks very quickly and what he says can often be difficult to understand. Further, at VCAT, Mr Djime repeatedly made serious but unfounded allegations of fraud, corruption and other deliberate wrongdoing against the respondents, their lawyers and a host of others (including officers of the Victorian Equal Opportunity and Human Rights Commission (‘VEOHRC’) and officers of VCAT, including the presiding member herself) in relation to the handling of his case. Despite all this, VCAT did an admirable job of enumerating, classifying and dealing with Mr Djime’s many claims in its two detailed and well-structured sets of reasons for decision. I will assume from here on that readers of this judgment have access to, and at least some level of familiarity with, those two documents.[9]
[9]See footnotes 1 and 2 above.

A significant proportion of the claims that were summarily dismissed by VCAT in its first decision were so dismissed as being misconceived within the meaning of s 75 of the VCAT Act, on the basis that the police were not engaged in conduct involving the provision (or refusal) of ‘services’ to Mr Djime at the relevant times, and that therefore those particular claims did not fall under what VCAT considered to be the only sections of the EO Act potentially applicable to them. Mr Djime contends that VCAT took a wrong view of what might amount to ‘services’ (by the police) for the purposes of the EO Act. However, as I will explain, I consider that VCAT’s understanding of the statutory concept of ‘services’ in the police context was substantially correct.

On the other hand, possibly, it might have been preferable for VCAT to have allowed some of those particular claims, and perhaps one or two of the other claims that were summarily dismissed under s 75 of the VCAT Act, to proceed through to the final hearing, at which the issues might have been more fully explored. However, VCAT did hear all of the evidence on which Mr Djime wished to rely before it dismissed any of his claims summarily. In addition, VCAT had the benefit of detailed written submissions by counsel for VEOHRC relating to the summary dismissal application. For these and other reasons it is very unlikely that the fact that VCAT exercised its powers under s 75 of the VCAT Act to a greater extent than might have been ideal affected the ultimate outcome. Further, no point based on VCAT’s approach to s 75 of the VCAT Act is included amongst the raft of (mainly hopeless) points that Mr Djime himself actually advances. Understandably, therefore, the respondents have not addressed s 75 in this regard in their submissions to this Court.

As I will indicate, a few other parts of VCAT’s reasoning might arguably have involved error, but not error of a kind that could have vitiated either of the decisions or, at least, not error of such significance as to warrant setting aside any part of either of the decisions in the light of Mr Djime’s avowed determination not to return to VCAT.

Further, it is obvious from the voluminous material[10] before this Court that the respondents were put to a vast amount of time, trouble and expense at VCAT in responding to Mr Djime’s substantive claims and to his unfounded allegations of deliberate wrongdoing in relation to the handling of the VCAT proceeding. It is also obvious that a very large amount of further time, trouble and expense has been incurred by the respondents in dealing with Mr Djime’s proceeding in this Court. The respondents and their lawyers have been confronted with a repetition of Mr Djime’s serious but unfounded allegations of deliberate wrongdoing in relation to the VCAT proceeding. In addition, Mr Djime has made a raft of similar unfounded allegations against them and many others (including staff of this Court) about the handling of this present proceeding. The respondents have gone to great lengths to respond to those allegations as well.
[10]The material exceeds 3,000 pages in length.

Having regard to the history of this matter, I consider that I should take Mr Djime at his word when he insists that he will never return to VCAT. In those circumstances, it would be futile to set aside any part of either of VCAT’s decisions, and hence it would be futile to grant leave to appeal. Even if Mr Djime were to change his mind about returning to VCAT, there is nothing to indicate that he would conduct any remitted proceeding in a more reasonable fashion. Even if he did, his efforts would probably be fruitless. There must be an end to litigation. In truth, a refusal of leave would be in the best interests of both the applicant and the respondents, and would best meet the justice of the case. Accordingly, I will refuse leave to appeal. As already indicated, even if I had been prepared to grant leave to appeal, I would have dismissed the appeal, for the same reasons, in the exercise of the Court’s discretion under s 148(7)(d) of the VCAT Act.

Mr Djime’s allegations of deliberate wrongdoing in relation to the handling of his proceedings: general response

In fairness to the many people whom Mr Djime has maligned by his abovementioned allegations relating to his dealings with VEOHRC and relating to the handling of the VCAT proceeding and the handling of this proceeding, it is desirable to deal with those allegations, at least in general terms, at the outset.

As already mentioned, the allegations in question are serious allegations of deliberate wrongdoing (including allegations of corruption and bad faith) against a great variety of persons. One of the recurrent themes is that transcripts or other court documents have been deliberately distorted or fabricated. Most of the allegations are pitched at a high level of generality, with no particularisation. Most are self-evidently far-fetched or misconceived. Many are of no relevance to the real issues in the case. None has any proper evidentiary support. Nevertheless, as indicated above, the respondents and their legal representatives have gone to a great deal of trouble and expense to refute the allegations. Both in VCAT and in this Court, they have filed large quantities of responsive material (in addition to the extensive material filed in relation to Mr Djime’s substantive claims). Mr Djime has been given, but has ignored, numerous warnings that he should not make allegations of this kind without a proper basis. For example, the VCAT Member so warned him repeatedly during the hearing of the summary dismissal application.[11] Further, the Member commented on Mr Djime’s allegations of this nature in both her first and second decisions. In her first decision, the Member said this:[12]
[11]See transcript of proceedings, Djime v Kearnes (VCAT, Reference No. H164/2014, Member Dea, 13 May 2015) (exhibit SR54 to the affidavit of Sarah Ralph in this proceeding affirmed 2 June 2016 (‘the third Ralph affidavit’)) (‘VCAT transcript, 13 May 2015’), 2-3, 9-10.
[12]Djime v Kearnes (Human Rights) [2015] VCAT 941, [78].

In his materials (including his response to the respondents’ s 75 application) and when giving evidence Mr Djime made criticisms and accusations of collusion and corruption about solicitors who acted for him, police officers, including very senior officers, and members of the judiciary in respect of these and other matters. He made similar criticisms of and accusations about the solicitors acting for the respondents and staff of the [VEOHRC]. None of these allegations were supported by any objective evidence. I informed Mr Djime that I regarded those comments as being disgraceful and that I would have no regard to them.

Likewise, in her final decision, the VCAT Member said this:[13]
At the conclusion of the hearing, orders were made for the parties to file and exchange written submissions and reply written submissions. In those filed and served by Mr Djime, he expressly declined to make submissions on the legal and factual issues before me. The documents contained allegations as to the conduct of a number [of] people including myself, Ms Sharpe of counsel, the respondent’s instructing solicitors and various Victoria Police officers. I have put those matters to one side in making my decision.

The present proceeding came before Associate Justice Mukhtar on 1 April 2016 for directions and interlocutory orders. In paragraph 4 of the order made by His Honour on that day the following appears:
For the purposes of paragraph 3, the appellant shall abstain from making accusations of fraud, corruption or dishonesty as against the respondents, the Tribunal member, the respondents’ legal practitioners or the Victoria Police, unless there is a clear and credible basis for doing so referable to the questions of law on which he seeks leave to appeal.

On 3 June 2016, Associate Justice Mukhtar made another similar order against Mr Djime, extending the (provisional) prohibition to accusations against ‘officers of the Registry of the Supreme Court of Victoria’ (as well as those persons previously listed). Despite the observations made by VCAT and the orders made by Associate Justice Mukhtar, Mr Djime’s ongoing conduct was unchanged. He continued to pepper the documents he filed and his oral submissions with defamatory, abusive and intimidatory language directed to, or relating to, VCAT officials, Court officials and many other persons.

[13]Djime v Kearnes (No 2) [2015] VCAT 2055, [9].

I will refer to some of Mr Djime’s particular allegations of deliberate wrongdoing in more detail in due course. However, I would record here that I accept entirely the respondents’ responses to Mr Djime’s allegations of this kind. On my examination of the relevant material, none of the persons concerned has been shown to be involved in any deliberate wrongdoing whatsoever. The allegations of deliberate wrongdoing in the handling of the proceedings are baseless and scandalous and should never have been made.

Salient parts of the proceedings at VEOHRC, VCAT and the Supreme Court

It appears that, in early 2014, Mr Djime wrote to VEOHRC with a set of complaints about Victoria Police, similar to those which he later made to VCAT.[14] By a letter dated 4 April 2014, VEOHRC advised him that it had received his ‘complaint of race discrimination in the area of goods and services and victimisation against Victoria Police’.[15] The letter went on to explain that the dispute would be handled by a conciliator as part of VEOHRC’s dispute resolution service.[16]
[14]See transcript of Proceedings, Djime v Kearnes (VCAT, Reference No. H164/2014, Member Dea, 10-11 March 2015) (exhibit SR4 to the affidavit of Sarah Ralph in this proceeding affirmed 30 March 2016 (‘the first Ralph affidavit’)) (‘VCAT transcript, 10-11 March 2015’), 11-16.
[15]Ibid, 12.
[16]See Division 1 of Part 8 of the EO Act.

Subsequently, by letter dated 31 July 2014, Mr Djime was informed that the VEOHRC had declined to continue with the dispute resolution process in relation to the complaint. The reason given was that Mr Djime had in the meantime initiated proceedings in another forum, namely VCAT.[17] VEOHRC’s decision was made under s 116(1)(d) of the EO Act.
[17]VCAT transcript, 10-11 March 2015, 15.

It appears that Mr Djime had lodged his application with VCAT on 17 July 2014.[18] His application was governed by the provisions of Division 2 of Part 8 of the EO Act.
[18]Written submissions to VCAT by VEOHRC dated 15 April 2015, [5].

The material before this Court does not include Mr Djime’s written application to VCAT of July 2014. It does include a 36-page document entitled ‘Particulars of Claim’ bearing the date 18 September 2014.[19] However, that (copy) document is date-stamped by the respondents’ solicitors as having been received by them on 28 November 2014, and it appears to have been received by VCAT on 1 December 2014.[20] In the meantime, on 22 October 2014, the respondents’ solicitors had filed with VCAT a document entitled ‘Particulars of Defence’ which was expressed to be a response to the Applicant’s Particulars of Claim dated 18 September 2014. What seems to have happened is that Mr Djime filed and served a set of Particulars of Claim on or about 18 September 2014 and an amended set in late November/early December 2014, but left the original date (18 September 2014) and the original heading on the new document.[21] In any event, it is tolerably clear that the 36-page document referred to above is the document that was later treated by VCAT as Mr Djime’s (final) Particulars of Claim.[22]
[19]Exhibit SR1 to the first Ralph affidavit.
[20]VCAT transcript, 10-11 March 2015, 5-6.
[21]Ibid. See also and compare the Chronology of Documents and the Index to Sarah Ralph’s Exhibits, both filed by the respondents in this Court on 4 August 2016.
[22]See the previous two footnotes.

There was a directions hearing at VCAT on 24 November 2014 before Member A. Dea. The same Member later went on to hear and determine the substantive proceeding. At the directions hearing on 24 November 2014 (and at every other VCAT hearing) Mr Djime appeared for himself. The respondents were represented by a solicitor. Member Dea gave directions as follows:[23]
[23]Exhibit SR3 to the first Ralph affidavit. Paragraph 1 of the directions is in bold type in the original.

1.This matter is listed for a 3-day hearing commencing at 10:00 a.m. on 10 March 2015 at the William Cooper Justice Centre, 223 William Street Melbourne at which time the Applicant shall produce all of the evidence he intends to rely on to prove his claim.
2.When the Applicant has presented all the evidence on which he intends to rely, the respondent may do one or more of the following:
(a) present their own evidence;
(b)request an adjournment in order to prepare their defence to the application;
(c)make an application under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (the Act) that the application should be dismissed or struck out. Section 75(1) of the Act states that the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that in its opinion is frivolous, vexatious, misconceived or lacking in substance, or otherwise an abuse of process.

It may be inferred from the directions given on 24 November 2014 that the respondents had foreshadowed as a possibility that, after Mr Djime had adduced the evidence on which he intended to rely, the respondents would apply under s 75 of the VCAT Act for the summary dismissal of Mr Djime’s application.

In accordance with the directions, the matter came on for hearing before Member Dea on 10 March 2015, and the hearing continued on 11 March 2015. Mr Djime appeared, once again, on his own behalf. The respondents were represented by Ms Sharp of counsel. In accordance with a standing protocol, VCAT had invited VEOHRC to consider applying to participate as amicus curiae. Pursuant to that invitation, Ms C Harris of counsel (now Ms C Harris QC) announced an appearance for VEOHRC.

Early on the first day of the hearing (10 March 2015), Member Dea said to Mr Djime that the hearing ‘would give you an opportunity to present all of your evidence … about what happened … and how that proves the claims you’ve made’.[24] Mr Djime acknowledged this.
[24]VCAT transcript, 10-11 March 2015, 5.

Next, it was established that neither Mr Djime nor either of the two witnesses whom he proposed to call at the (first stage) hearing would be cross-examined at that hearing by or on behalf of the respondents. However, the respondents reserved the right to cross-examine at a later hearing if so advised. Mr Djime indicated that he understood this proposal and that it was ‘fine’.[25]
[25]VCAT transcript, 10-11 March 2015, 7-8.

Member Dea then outlined to Mr Djime, as an unrepresented applicant, the legal framework applicable to the case. She mentioned that VEOHRC had indicated that it wished to be involved in order to put some legal arguments about whether, for the purposes of the EO Act, the police were providing ‘services’ to Mr Djime at relevant times. Mr Djime objected to any involvement on the part of VEOHRC. He asserted that VEOHRC had previously decided that his claims arose out of police ‘services’; that it had since tried to resile from that ‘decision’; that it had done so as a result of ‘corrupt’ interference on the part of the Chief Commissioner of Police; and that he would have nothing further to do with VEOHRC.

This was just another of Mr Djime’s misconceived and scandalous assertions. It emerged at the VCAT hearing on 10 March 2015 that the basis for Mr Djime’s claim that VEOHRC had ‘decided’ that his claim arose out of ‘services’ was the abovementioned letter from VEOHRC dated 4 April 2014. However, what the letter plainly meant – and (as counsel for VEOHRC confirmed at VCAT[26]) was intended to mean – was merely that VEOHRC understood Mr Djime to have put his complaints as complaints of discrimination in the area of goods and services (and victimisation). In any event, of course, VEOHRC had no power to determine, in a legally binding way, whether or not ‘services’ were involved. The relevant statutory roles of VEOHRC were confined to conciliating complaints and making submissions to tribunals and courts.
[26]VCAT transcript, 10-11 March 2015, 14-16.

Notwithstanding Mr Djime’s attitude, VEOHRC sought and was granted leave to assist VCAT as amicus curiae pursuant to s 160 of the EO Act. However, at VEOHRC’s own request, it did not further participate in the actual hearings on 10 and 11 March 2015. Rather, with the concurrence of the Member and the respondents, VEOHRC indicated that it would obtain a copy of the transcript of the hearing after it concluded, and would in due course file written submissions. Accordingly, about a month later, VEOHRC filed with VCAT written submissions dated 15 April 2015 that related principally to questions of law and principle, being submissions which referred to parts of the transcript and which responded to the respondents’ post-hearing written submissions. Quite properly, VEOHRC’s written submissions addressed the legal issues from a human rights and equal opportunity perspective, and hence in ways which tended, so far as appropriate, to support or favour Mr Djime’s position. I will return to VEOHRC’s written submissions in due course.

Once the proposed role of VEOHRC had been dealt with at the hearing on 10 March 2015, Mr Djime commenced giving evidence on affirmation on his own behalf. At the outset, at the invitation of the Tribunal member, Mr Djime adopted as true and correct the contents of his Particulars of Claim dated 18 September 2014. The member said that she would treat that document as the main part of Mr Djime’s evidence.[27]
[27]VCAT transcript, 10-11 March 2015, 25.

As his evidence progressed on 10 and 11 March 2015, Mr Djime produced various documents and photographs, including copies of statements made by a range of persons in connection with other proceedings or investigations relating to alleged incidents on which Mr Djime relied in his VCAT proceedings. To the extent sought by Mr Djime, these items were made exhibits in the VCAT proceeding.

On 11 March 2015 Mr Djime called two witnesses, Mr Shahpoor Esanajad and Mr Ibrahama Dienkha. Mr Esanajad’s evidence was quite brief. Ms Sharp declined to cross-examine him and he was permanently excused from further attendance.[28] Mr Dienkha’s evidence was somewhat more extensive. He had previously made a statutory declaration about relevant events and this was made an exhibit. In accordance with the arrangements established the previous day, Ms Sharp expressly reserved the right to have Mr Dienkha recalled at a later time for cross-examination if the matter were to proceed.[29] Mr Djime then continued his own evidence, and produced further documents, including documents containing medical information about injuries Mr Djime claimed to have suffered in the course of the relevant incidents.
[28]VCAT transcript, 10-11 March 2015, 136.
[29]VCAT transcript, 10-11 March 2015, 147.

At the end of Mr Djime’s evidence on 11 March 2015, the following exchange occurred between the VCAT member and him:[30]

What I want to understand is this case. Can you give me an answer? This case, you have told me everything, given the evidence that you have about what you want to say? - - - Yeah, I can – I don’t want to abuse your time for the moment because I’m not really feeling – feeling really well. I can see – I can see you got – you got – yeah, I – with that you’ve got to work – work out with that.
You’re satisfied that you have and you’ve called the witnesses you wanted to call? - - - Yes.
And you’ve given me the documents you wanted to give me, yes? - - - Yeah. I believe, yeah.

[30]VCAT transcript, 10-11 March 2015, 183.

Next, Ms Sharp handed up two documents for the Tribunal’s information. One was a County Court ‘result of appeal’ form. It shows the outcome of an appeal by Mr Djime from orders made in relation to him on 7 August 2014 in the criminal jurisdiction of the Magistrates’ Court. The appeal related to an incident at the Footscray Railway Station on 15 May 2013, being an incident that was the subject of several of Mr Djime’s VCAT claims. The ‘result of appeal’ form indicated that on 15 September 2014 Judge Smallwood had found one of the relevant charges (‘use threatening language – rail premises’) proven but had then dismissed it.[31] Mr Djime objected to VCAT receiving this document. He claimed that it was a ‘fake’ document, on the basis that the charge did not ‘exist’. The Tribunal member commented that the document was just a record of what the County Court Judge had done. She said that she would not mark it as an exhibit, but would have a copy made and would retain the copy.[32] Later, Mr Djime apparently changed his mind and decided that, at least to some extent, the ‘result of appeal’ form was a document that favoured his case. In this Court, bizarrely, he has repeatedly accused Ms Sharp of counsel of having stolen it from the records of VCAT.[33] But, of course, the true, obvious and innocent explanation is that the document had simply not been made a formal exhibit at VCAT. Consistently with this, in paragraph 101 of VCAT’s first set of reasons for decision, the Member referred to the orders made by the County Court on 15 September 2014 and said that she had been ‘informed’ that the ‘facts relevant to the charge of use of threatening language were found to be proven but the charge was dismissed’. Ms Sharp herself had handed the ‘result of appeal’ form up to the member in Mr Djime’s presence. Mr Djime had or acquired a copy. Indeed he later exhibited it to an affidavit he filed in this Court in June 2016 (‘Mr Djime’s June affidavit’).[34] Later again, during the hearing before me on 1 December 2016, Ms Sharp herself confirmed what had happened.[35] Mr Djime’s allegation of theft is appalling and ridiculous.
[31]Part of exhibit 5 to an affidavit of Hamadou Djime dated 27 June 2016 but affirmed on 29 June 2016 and filed in this proceeding on the same day (‘Mr Djime’s June affidavit’).
[32]VCAT transcript, 10-11 March 2015, 184-185.
[33]See, eg, the affidavit of Mr Djime dated 15 April 2016 (‘Mr Djime’s April affidavit’), 6 and Mr Djime’s June affidavit, 6. Mr Djime made the same allegation orally before me: transcript of proceedings, Djime v Kearnes (S CI 2016 00169), Cavanough J (1 December 2016) (‘Supreme Court transcript, 1 December 2016’) 22^nd to 24^th page (unpaginated transcript).
[34]See below.
[35]Supreme Court transcript, 1 December 2016, 57^th page (unpaginated transcript) with reference by Ms Sharp to the VCAT transcript, 10-11 March 2015, 282.

The second document handed up by Ms Sharp on 11 March 2015 was said to be an extract from the records of the Magistrates’ Court at Sunshine relating to certain criminal charges against Mr Djime determined on 5 March 2015. Those charges related to an incident at residential premises at 13 City Place, Sunshine on 18 September 2013, being another incident which was the subject of several of Mr Djime’s VCAT claims. Mr Djime indicated to VCAT that he had appealed against the orders made by the Magistrates’ Court. The Tribunal member said that she would deal with this document in the same way as she had dealt with the first one.[36] Although Mr Djime had indeed lodged an appeal to the County Court against the relevant orders of the Magistrates’ Court at Sunshine, his appeal was later (on 28 July 2015) abandoned.[37] Further, on 4 May 2015 Mr Djime brought a proceeding in this Court by way of originating motion seeking judicial review of the orders of the Magistrates’ Court, in which he alleged that the relevant charges were ‘Fake, Unauthorised, Out of statute of limitation and Invalid.’ That proceeding was dismissed; and on 19 August 2016 an application by Mr Djime to the Court of Appeal for leave to appeal was refused.[38] Subsequently, the High Court refused Mr Djime special leave to appeal.[39] Over roughly the same period, Mr Djime was persisting, at VCAT and in this proceeding, in describing the relevant charges as fake.
[36]VCAT transcript, 10-11 March 2015, 185.
[37]See Djime v Le [2016] VSCA 202 [5]. The judgment in Djime v Le [2016] VSCA 202 was referred to by the respondents’ counsel in the hearing before me on 1 December 2016: see Supreme Court transcript, 1 December 2016, 29^th page (unpaginated transcript).
[38]Ibid [9] and [77].
[39]Djime v Le [2016] HCASL 343 (14 December 2016).

I return to the hearing on 11 March 2015 at VCAT. Towards the end of that hearing, a timetable was discussed for the filing and serving of written submissions in advance of a further oral hearing.[40] The submissions were to be based in part on the transcript. Ms Sharp noted that the previous day’s transcript included a number of references to the evidence being indistinct. She indicated that a request would be made to the transcribers to obtain a more complete transcript. The proposed timetable involved the respondents filing their submissions first, with VEOHRC to follow and Mr Djime to be last. Mr Djime later alleged, with no foundation at all, that the transcripts that were in due course provided to him (at the respondents’ cost) had been deliberately falsified, and that that was done with the complicity of the respondents, their lawyers, transcript providers, VCAT staff and others.[41] These outrageous allegations were completely and compellingly answered by the first affidavit of the respondents’ solicitor in this proceeding, Sarah Ralph, being an affidavit dated 30 March 2016 and filed 31 March 2016, especially at paragraphs 30 to 45. Notwithstanding this, Mr Djime has persisted with the allegations, without offering anything to support them or any response to Ms Ralph’s affidavit.[42]
[40]VCAT transcript, 10-11 March 2015, 185-189.
[41]See, eg, Mr Djime’s affidavit dated 22 January 2016 (and affirmed and filed on 27 January 2016) (‘Mr Djime’s January affidavit’), 2-3 and his draft notice of appeal dated 22 January 2016, 17. See further below as to the draft notice of appeal.
[42]See, eg, Mr Djime’s June affidavit, 4-6.

At the end of the hearing on 11 March 2015, Ms Sharp confirmed before VCAT that the respondents proposed to make a ‘strikeout’ application,[43] and that the respondents’ proposed written submissions would address that application. Mr Djime asked a couple of times for clarification about what was proposed. The Tribunal member told him that the respondents would apply to have some or all of his claims dismissed based on the evidence which Mr Djime had so far given and produced; that there would be a further day for the hearing of that application; and that if and to the extent that the Tribunal did not accept the respondents’ ‘strikeout’ application, the case would proceed and the respondents would then be permitted to cross-examine Mr Djime and other witnesses on whom he relied. Ultimately, Mr Djime said that he understood this proposal.[44]
[43]VCAT transcript, 10-11 March 2015, 189.
[44]VCAT transcript, 10-11 March 2015, 190-191.

On the same day (11 March 2015) the Tribunal issued a document entitled ‘orders’ in the following terms:[45]
[45]Exhibit SR6 to the first Ralph affidavit. Bolding as in original.

1.By 18 March 2015, the respondent shall file with the Tribunal three copies of the transcript of the hearing (together with copies of the recordings). On receipt, the Tribunal shall send a copy to each of the applicant and the Victorian Equal Opportunity and Human Rights Commission (Commission).
2.By 25 March 2015, the respondent shall file with the Tribunal three copies of its application for summary dismissal of the proceeding and supporting submissions (summary dismissal application). On receipt, the Tribunal shall send a copy of the summary dismissal application to each of the applicant and the Commission.
3.By 15 April 2015, the Commission shall file with the Tribunal three copies of any submissions it wishes to make in respect of the summary dismissal application in its role as amicus curiae. On receipt, the Tribunal shall send a copy of the Commission’s submissions to each of the applicant and the respondent.
4.By 29 April 2015, the applicant shall file with the Tribunal any submissions he wishes to make in respect of the summary dismissal application or the Commission’s submissions. On receipt, the Tribunal shall send a copy of the applicant’s submissions to each of the respondent and the Commission.
5.The respondent’s summary dismissal application shall be listed for a one day hearing by Member A. Dea on 13 May 2015 commencing at 10:00 a.m. at the William Cooper Justice Centre.
6.The Tribunal records that, subject to the outcome of the summary dismissal application, it has granted liberty to the respondent to seek to cross examine the applicant and/or his witnesses and/or to call for persons who have made statements which have been filed as exhibits in the proceeding to attend for cross examination.

It will be noted that, under these orders, the respondents were due to file three copies of the transcript at VCAT by 18 March 2015 (para 1) and to file three copies of its summary dismissal application by 25 March 2015 (para 2). It would then be up to VCAT to on-forward a copy of each to Mr Djime.

In late March and early April 2015, Mr Djime made allegations to VCAT by email to the effect that the respondents (by their solicitors) had failed to comply in time with either paragraph 1 or paragraph 2 of the orders. It was subsequently shown that the respondents had in fact duly complied with paragraph 1 by 18 March 2015; and that the solicitors had sent an email attaching the summary dismissal application to VCAT on 25 March 2015, but that the VCAT email system did not receive or accept it on that day. In any event, three hard copies were filed the next day (26 March 2015). And VCAT apparently distributed copies of the transcript and of the summary dismissal application to Mr Djime when it received them, in accordance with the scheme of the orders. However, Mr Djime continued to deny that the respondents had filed their documents in time, accusing many people, including VCAT staff, of fabricating information and documents. He professed to believe that the summary dismissal application was invalid and could never be lawfully pursued or revived, because (as he asserted) it was filed later than the date (25 March 2015) specified in the orders. The controversy was apparently referred to Member Dea. On 15 April 2015, Member Dea made the following order in chambers:

The Tribunal, having reviewed correspondence from the parties and the Tribunal’s file, records that:
1.The Respondents complied with order 1 made on 11 March 2015 in respect of the filing of copies of transcript by 18 March 2015.
2.It appears that, while on 25 March 2015 the Respondents sent an email to the Tribunal attaching its application for summary dismissal, the Tribunal’s email system did not receive or accept that email. The Respondent filed three hard copies of the documents the following day.
If the Applicant has any further concerns about the Respondent’s compliance with order 2 made on 11 March 2015, they may be raised at the next hearing.
3.The time for the Applicant’s compliance with order 4 made on 11 March 2015 is extended to 4 May 2015.

4. The hearing scheduled for 13 May 2015 is confirmed.

On the same day (15 April 2015), in accordance with the original timetable, VEOHRC’s written submissions were filed.

It will be seen that, by the order of 15 April 2015, Mr Djime was given an additional six days to file his written submissions.

The summary dismissal application duly came on for hearing before Member Dea on 13 May 2015. Mr Djime appeared in person. Ms Sharp of counsel appeared for the respondent. There was no appearance for VEOHRC, but VEOHRC’s written submissions had been received. At the outset of the hearing, the Member explained to Mr Djime what had apparently happened on 25 March 2015 in relation to the respondents’ solicitors’ email, and she mentioned the filing (on 26 March 2015) of the hard copies. The Member told Mr Djime that she considered this aspect of the matter to be closed. Mr Djime at first quibbled with this and then said that he took ‘note’ of it.[46] (As will be seen, Mr Djime later asserted, and continues vehemently to assert before this Court, that the alleged lateness (by one day) of the filing in VCAT of the summary dismissal application was fatal to it.) The hearing of the summary dismissal application continued. The transcript runs to 80 pages. Towards the end,[47] it was pointed out again, for Mr Djime’s benefit, that the respondents reserved the right to cross-examine Mr Djime and to call evidence of their own at a later stage if and to the extent that any of Mr Djime’s claims remained alive after the determination of the summary dismissal application. The Tribunal reserved its decision.
[46]VCAT transcript, 13 May 2015, 1.
[47]Ibid, 79-80.

On 26 June 2015 VCAT published a document of 47 pages, comprising a set of orders together with a set of reasons, dealing with the application for summary dismissal. The orders read as follows:

1.Under section 75(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the claims described by me in these reasons by reference to the following items are dismissed: items a, b, c, e, f, i, j, k, l, n, p, q, r, s, t, u, v, w, x, y and z.
2.The claims described by me in these reasons by reference to the following items are to proceed to a further hearing: items d, g, h, m, o and aa.
3.The proceeding is to be listed before me for further hearing after 24 July 2015. Allow three days.

The document included a helpful attachment (Attachment A) being a table with 4 columns and 27 rows. The 4 columns were headed ‘Item’, ‘Description’, ‘Outcome’ and ‘Reason’, respectively. Under the ‘Item’ column, each of the 27 individual claims is identified sequentially by letter or letters. Under the ‘Description’ column, each claim is briefly described. Under the ‘Outcome’ column, each claim is designated as either ‘Dismissed’ or ‘Proceed to hearing’. Under the ‘Reason’ column, entries are made, in relation to each of the 21 claims summarily dismissed, giving a very short summary of the reason or reasons for dismissal in each such case respectively. I will come to the substance of VCAT’s statement of reasons in due course.

On or about 6 July 2015, according to affidavits later filed in this proceeding by Mr Djime,[48] Mr Djime approached the Supreme Court Registry with a draft originating motion designed to seek leave to appeal from the orders made by VCAT on 26 June 2015. According to Mr Djime’s affidavits, the Supreme Court Registry declined to allow him to file his proposed proceeding at that stage. In his affidavits, Mr Djime alleges that he protested; that the matter was referred to senior officers of the Registry; and that those senior officers gave as the reason, or as a reason, for declining to issue the proposed proceeding that it would be premature at that stage to challenge VCAT’s decision of 26 June 2015 because the VCAT proceeding was not then concluded. In fairness to Mr Djime, I note that, technically, the Supreme Court Registry may have erred if, and to the extent that, it declined to issue the proposed proceeding for that reason.[49] I note also that, on 20 July 2015, the solicitors for the respondents wrote to Mr Djime and to VCAT seeking to confirm their stated understanding that, under s 148 of the VCAT Act, Mr Djime had only until 24 July 2015 to file any application for leave to appeal.[50] On the other hand, I note that Mr Djime’s draft originating motion dated 6 July 2015 was full of scandalous and irrelevant material.[51] So it would not have been in a proper form to be issued anyway. Further, even if the proposed proceeding had been issued at that time, it would probably have been stayed by the Court (as a matter of sensible case management) pending the completion of the balance of the VCAT proceeding. I further note that, by 4 August 2016 at the latest, as mentioned above, the respondents had withdrawn any opposition to the grant of an extension of time for Mr Djime to challenge the orders of 26 June 2015, and that I granted such an extension of time at the hearing on 1 December 2016. It follows that any error by the Registry in July 2015 was of little or no lasting consequence. In any event, Mr Djime had no basis whatsoever for asserting, as he scandalously did, that the Supreme Court Registry had declined to issue the application for leave to appeal in July 2015 by reason of ‘unlawful recommendations’ by Member Dea of VCAT and because of ‘conspiracies and corruption’.[52]
[48]Affidavit of Hamadou Djime affirmed 15 April 2016 (‘Mr Djime’s April affidavit’), 2-3; Mr Djime’s June affidavit, exhibit 1.
[49]See Dura (Aust) Constructions Pty ltd v Victorian Managed Insurance Authority [2012] VSC 34; Thomson Reuters, op cit [VCAT 148.40].
[50]First affidavit of Sarah Ralph, [10].
[51]A copy of this document is exhibit 1 to Mr Djime’s June affidavit.
[52]Mr Djime’s April affidavit, 2-3.

Returning to the chronology of the VCAT proceeding, I note that on 31 August 2015, at a directions hearing, Member Dea dismissed an application made by Mr Djime for an order in his favour under s 78 of the VCAT Act based on allegations he had made about the manner in which the respondents were conducting the proceeding. She set down Mr Djime’s six remaining claims for hearing on three days in October and one day in November 2015. She also directed that the respondents file their witness statements with the Tribunal and with VEOHRC by 23 September 2015. The Tribunal would then forward copies to the applicant.[53]
[53]First Ralph affidavit, [11]. See also the copy of the order of 31 August 2015 included as part of exhibit 2 to Mr Djime’s April affidavit.

On 23 September 2015, the respondents filed and served witness statements for seven witnesses, namely Sergeant Michael Kearnes, Mr Stuart McKenzie, Senior Constable Natalie Remedios, Mr Mark Baker, Senior Constable Madeline Robertson, Sergeant Rick Nield and Sergeant Peter Drake.[54]
[54]First Ralph affidavit, [12].

On 5 October 2015, the hearing of the remaining claims commenced. There was no appearance on behalf of VEOHRC. It appears that VEOHRC did not take any further part in the VCAT proceeding. The hearing continued into the following day. By reference to the findings made on 26 June 2015, counsel for the respondents applied under s 60A of the VCAT Act for the removal of the second, third and fourth respondents from the proceeding. On 6 October 2015, the Tribunal ordered[55] the removal of the second respondent (Constable Matthew Le) and the fourth respondent (Constable Van Der Sluis) as parties.[56] The application to remove Senior Constable Wilson was deferred. (Ultimately, it was not granted.) VCAT further ordered that if Mr Djime wished to issue a summons to Senior Constable Wilson to attend, he must apply by 16 October 2015. Mr Djime did not make any such application.
[55]Ibid, [14]. See also second affidavit of Sarah Ralph affirmed 12 May 2016 (‘second Ralph affidavit’), [40] and exhibit SR52 thereto, being VCAT’s order of 6 October 2015.
[56]First Ralph affidavit, [14].

During the hearings on 5 and 6 October 2015, counsel for the respondents indicated to VCAT an intention to file a witness statement for a further proposed witness, Senior Constable Reece Duffield, who had been overseas for a significant period, including when the respondents’ witness statements were due to be filed. Counsel also indicated an intention to file an additional witness statement for the existing proposed witness, Mr Stuart McKenzie.[57] Such witness statements were filed on 30 October 2015.
[57]Ibid, [15].

The hearing resumed on 5 November 2015. Mr Djime objected to the grant of leave to the respondents to rely on the further written statement made by Mr McKenzie or the written statement made by Constable Reece Duffield. However, leave was granted. Despite warnings from the Member, Mr Djime responded by absenting himself from the hearing while VCAT heard the evidence of Mr McKenzie,[58] and then again while the evidence of Constable Duffield was heard.[59] The grant of leave was formalised in a procedural order made the same day (5 November 2015).[60] By the same order, directions were given for the filing and serving of post-hearing written submissions ‘of fact and law’, as between Mr Djime and the remaining respondents, by 20 November 2015 and for any submissions in reply by 27 November 2015.
[58]Djime v Kearnes [2015] VCAT 2055, [43]. See transcript of Proceedings, Djime v Kearnes (VCAT, Reference No. H164/2014, Member Dea, 5 November 2015) (exhibit SR11 to the first Ralph affidavit) (‘VCAT transcript, 5 November 2015’), 38-40.
[59]Djime v Kearnes [2015] VCAT 2055, [149], fn 49. See also first Ralph affidavit, [60] and exhibit SR11 thereto, VCAT transcript, 5 November 2015, 40-41.
[60]Part of exhibit 2 to Mr Djime’s April affidavit.

The remaining respondents filed and served their written closing submissions, in accordance with VCAT’s directions, on 20 November 2015. Those submissions included a contention that VCAT should give consideration to referring Mr Djime for alleged contempt of the Tribunal under s 137 of the VCAT Act because of his repeated scandalous and baseless allegations of wrongdoing. Mr Djime also filed and served a set of written submissions, but, as VCAT later noted,[61] in those submissions Mr Djime expressly declined to address the legal and factual issues before the Tribunal, and instead merely made, or repeated, allegations of the disgraceful kind referred to above against the Member herself, Ms Sharp of counsel, the respondents’ solicitors and various Victoria Police officers. The remaining respondents filed submissions in reply. In those submissions, they said that Mr Djime’s written submissions provided further evidence to support a referral for contempt. Mr Djime did not file any submissions in reply.
[61]Djime v Kearnes [2015] VCAT 2055, [9].

On 23 December 2015 VCAT published its final decision whereby, as mentioned above, it dismissed Mr Djime’s remaining claims. VCAT did not refer Mr Djime for alleged contempt, but, in her reasons, the Member did include a (second) set of comments highly critical of Mr Djime’s conduct, as set out above.

On 20 January 2016 Mr Djime commenced the present proceeding in this Court. As mentioned above, he has been self-represented throughout, and this is notwithstanding that he has apparently had access to the Court’s Self-Represented Litigants Coordinator, who routinely advises self-represented litigants of possible avenues of prospective legal assistance.[62] Mr Djime has repeatedly asserted, both before VCAT[63] and before this Court,[64] that he has had the benefit of a great deal of legal advice in relation to his claims and proceedings. He also asserts that he has two Masters degrees.[65]
[62]See paragraph 7 of the order made by Associate Justice Mukhtar on 1 April 2016 and paragraph 5 of the order made by his Honour on 3 June 2016, each of which provided for Mr Djime to collect Court documents from the Self-Represented Litigants Coordinator.
[63]See, for example, exhibit SR11 to the first Ralph affidavit, VCAT transcript, 5 November 2015, 16 (‘More than ten people gave me legal advice’).
[64]See, eg, Supreme Court transcript, 1 December 2016, 19^th to 20^th page, 45^th to 46^th page, 53^rd to 54^th page (unpaginated transcript). This legal advice was said by Mr Djime to have been obtained, both in New South Wales and Victoria, from a total of 15 lawyers, including, Mr Djime asserted, from a retired Victorian judge whom Mr Djime said he would not name.
[65]See Djime v Kearnes [2015] VCAT 2055 [131].

As a self-represented litigant, Mr Djime has been forgiven much.

Mr Djime commenced the proceeding by a document purporting to be an originating motion between parties in Form 5C. The originating motion (and all of Mr Djime’s subsequent Court documents) named five parties as respondents, being the five respondents listed in the title to these reasons. As mentioned above, two of those respondents, namely Constable Le and Senior Constable Van Der Sluis, had been removed as parties to the VCAT proceeding by VCAT’s order of 6 October 2015. The originating motion does not in terms challenge that order. However, no point has been taken in that regard. The matter has been dealt with on the basis that Constable Le and Senior Constable Van Der Sluis are proper respondents.

Under Order 4 of Chapter II of the Supreme Court Rules, as that Order stood at the time when this proceeding was commenced, it was appropriate to commence an application for leave to appeal from VCAT by originating motion. However, Mr Djime’s document was not in appropriate form. It included, in addition to the formal parts on page 1, a further 9 pages of disjointed, bewildering and abusive allegations against the respondents, the VCAT Member and various other persons, together with numerous outlandish claims for relief. By contrast, according to the prescribed form of Form 5C (read with Form 5B), the corresponding part of the originating motion should have been confined to specifying the relief or remedy sought and the Act, if any, under which the claim was made. In effect, apart from the formal parts, the document should merely have sought leave to appeal, under s 148 of the VCAT Act, from the relevant orders of VCAT. The place for any supporting material was the affidavit in support required by Rule 4.07 of Order 4 (as it then stood).

Rule 4.07 provided that the affidavit in support ‘shall set out the acts, facts, matters and circumstances relating to ... the order of the tribunal [and] the grounds in the proposed notice of appeal’, and that there:

shall be included as exhibits to the affidavit—
(a)       a copy of the order from which the appeal is to be brought;
(b)       a copy of any reasons given for the order; and
(c)       a copy of the proposed notice of appeal—
or their absence as exhibits shall be accounted for in the affidavit.

On 27 January 2016 Mr Djime filed an affidavit dated 22 January 2016 (‘Mr Djime’s January affidavit’) purporting to be an affidavit in support of his originating motion, but the affidavit did not meet the requirements of Rule 4.07. It did not, in a proper way, set out the acts, facts, matters and circumstances relating to the relevant orders of VCAT and the grounds in the proposed notice of appeal. It did, apparently, purport to exhibit a draft notice of appeal, although there appears to be no such exhibit to Mr Djime’s January affidavit on the file.[66] It may be inferred that the draft notice of appeal referred to in Mr Djime’s January affidavit was the same as the draft notice of appeal dated 22 January 2016, a copy of which was exhibited (as exhibit 1) to a later affidavit of Mr Djime (‘Mr Djime’s April affidavit’). A further copy was exhibited (as exhibit 9) to Mr Djime’s June affidavit. I will come to the contents of the draft notice of appeal shortly.

[66]See page 2 of Mr Djime’s January affidavit. See and compare an email dated 22 March 2016 from the Associate to Associate Justice Mukhtar to the respondents’ solicitors (exhibit SR19 to the first Ralph affidavit). See also paragraph 5 of the respondents’ outline of submissions filed on 1 April 2016 on behalf of the respondents, which refers to a draft notice of appeal.

Mr Djime’s January affidavit was 44 pages in length. However, most unhelpfully, it failed to exhibit the VCAT transcripts or the evidentiary exhibits as officially received at VCAT. It included a repetition and expansion of the disjointed, bewildering and abusive substantive allegations against the respondents and others contained in the originating motion. To the extent that it contained assertions of fact, it did not properly distinguish between, on the one hand, the evidence before VCAT and VCAT’s findings and, on the other, Mr Djime’s contentions as to what had occurred ‘on the ground’ in the course of the events the subject of his claims at VCAT. In addition, it inappropriately included many (mainly misconceived) assertions as to the applicable legal situation. Inappropriately again, it made or repeated outlandish claims for relief.

Further, Mr Djime’s January affidavit is (another) document full of scandalous and baseless allegations against the VCAT Member and others involved in the handling of his proceedings, including allegations that, among other things, the Member ‘deliberately ignored’ certain of Mr Djime’s complaints;[67] that certain paragraphs of her decision of 26 June 2015 had been ‘purposely written in order to distort’ certain complaints;[68] that the Member had been ‘working hard in complicity with [the respondents’ solicitor] to modify [certain of Mr Djime’s complaints]’;[69] that the Member had ‘decided to ignore’ that the respondent police women had been using ‘fake’ infringement notices against Mr Djime;[70] that the Member ‘deliberately ignored’ that there was no requirement for ‘services’ in relation to claims of victimisation under the EO Act;[71] that the Member had ‘deliberately ignored’ his claim for damages;[72] that the Member had ‘recklessly dismissed’ his complaints of racial vilification;[73] that the Member’s decision of 26 June 2015 contained ‘a lot of deliberate acts of misinterpretation of the laws and manipulations of facts and events (fake transcripts) concerning the evidence submitted to the VCAT’;[74] that the Member had ‘violated’ the Evidence Act 2008 in trying to ‘cover up’ the ‘perjuries’ of a particular witness;[75] that the Member allowed the creation of ‘false witnesses’ and will need to explain this to the Supreme Court;[76] that the Member ‘lied’ about the giving of evidence by Constable Duffield;[77] that the Member had ‘unlawfully applied’ a ‘double standard’;[78] that the Member had ‘deliberately omitted’ key evidence;[79] that the methodology of the Member was ‘very immoral’;[80] that the Member had ‘purposely distorted’ evidence;[81] that the Member had ‘deliberately’ adopted and attributed false statements to Mr Djime;[82] and that the Member ‘had deceived and transgressed the fundamental values [of justice in Victoria]’.[83]
[67]Mr Djime’s January affidavit, 3.
[68]Ibid, 4.
[69]Ibid, 5.
[70]Ibid, 6.
[71]Ibid, 15, 18.
[72]Ibid, 20.
[73]Ibid, 22.
[74]Ibid, 31 (capitalisation removed).
[75]Ibid, 35.
[76]Ibid, 37.
[77]Ibid, 37-38.
[78]Ibid, 38-39, 41.
[79]Ibid, 39.
[80]Ibid, 40.
[81]Ibid, 41.
[82]ibid, 42.
[83]Ibid, 43.

Mr Djime’s draft notice of appeal (dated 22 January 2016) is no better. It is 61 pages long. It should have done no more than identify the decisions challenged, the question or questions of law raised, the proposed grounds of appeal and the orders sought. It is by no means so confined.[84] It is yet another document full of scandalous and baseless allegations, together with outlandish claims for relief. It does not identify grounds of appeal in any clear or proper fashion.[85] Nevertheless, in due course I must come back to it, because Mr Djime relies on it heavily.
[84]Insofar as the proposed appeal related to VCAT’s June 2015 decision, which was made under s 75 of the VCAT Act, summarily dismissing certain of Mr Djime’s claims, arguably there was no need to specify questions of law or grounds of appeal, save perhaps by referring to the terms of s 75: see below.
[85]But see previous footnote.

On 17 March 2016, this proceeding came on before Associate Justice Mukhtar for the hearing of a summons that had been filed by Mr Djime on 27 January 2016. There was no appearance for the respondents. Mr Djime claimed that he had served the papers on them. Mukhtar AsJ was not satisfied that the papers had been duly served. He adjourned the matter to 1 April 2016. In his Honour’s order, it was recited (under ‘Other Matters’) that the circumstances called for the Court to take its own measures to ensure that the matter was brought to the attention of at least Norton Rose Fulbright Australia, who had acted for the respondents at VCAT. Accordingly, between 17 and 22 March 2016 the Associate to Mukhtar AsJ took such measures.[86]
[86]See exhibits SR16 to SR19 (inclusive) to the first Ralph affidavit.

On 31 March 2016 the respondents filed an affidavit of their solicitor, Sarah Ralph, in response.[87] The affidavit dealt with the chronology of the VCAT hearing; with Mr Djime’s alleged failure to serve the papers effectively; with the respondents’ claim (later foregone) that the application for leave to appeal was in part out of time; with Mr Djime’s allegations about ‘fake transcripts’, ‘false transcripts’ and ‘false witnesses’ at VCAT; and with the respondents’ submissions at VCAT about contempt. There were 30 exhibits to the first Ralph affidavit. They included so much of the VCAT transcripts as were then available. Together, they filled three large lever arch folders.
[87]Being the affidavit referred to above as ‘the first Ralph affidavit’.

On 1 April 2016 the respondents filed a written outline of submissions opposing the application for leave to appeal. That submission need not be further considered. It was overtaken by subsequent events.

On the same day, 1 April 2016, Associate Justice Mukhtar made various procedural orders, including the first of his Honour’s two orders referred to above prohibiting Mr Djime from making baseless accusations of wrongdoing. The Associate Judge also directed that by 15 April 2016 Mr Djime file an affidavit —

(a) dealing with the (then still extant) extension of time point;

(b) stating the questions of law relied upon;

(c) stating, in essence only, the errors of law alleged and why it would be unjust for leave to be refused; and

(d) stating how Mr Djime was allegedly denied procedural fairness or ‘how the Tribunal proceedings miscarried in some way because of fake transcripts or corrupted evidence’.

The affidavit was not to exceed 10 pages. Any affidavit in reply was to be filed by 13 May 2016. The matter was otherwise adjourned to a mention on 3 June 2016.

On 15 April 2016 Mr Djime filed an affidavit pursuant to the 1 April orders of Associate Justice Mukhtar.[88] It was filed within time and it did not, of itself, exceed 10 pages, but otherwise it did not comply properly with those orders. It purported to incorporate by reference all, or indeterminate large parts, of Mr Djime’s 61 page draft notice of appeal.[89] It reiterated Mr Djime’s abovementioned assertion that the respondents’ summary dismissal application was filed one day late and his claim that, for that reason, the summary dismissal application was invalid and had to be dismissed. It made baseless accusations, and made threats of personal litigation, against various officers of the Supreme Court Registry.[90] It accused Registry staff of ‘unlawful acts of corrupted practices’ and ‘conspiracies and corruption’[91] and of acting under the recommendations of VCAT Member Dea.[92] It repeated various of Mr Djime’s baseless and scandalous allegations against Member Dea and others. In his April affidavit, Mr Djime asserted or re-asserted, amongst other things, that Member Dea had ordered and provided ‘fake transcripts’ at VCAT that were ‘fabricated’ by the respondents’ solicitor;[93] that the Member had committed ‘frauds’ in order to dismiss Mr Djime’s complaints of victimisation;[94] that counsel for the respondents had ‘stolen’ the abovementioned County Court ‘result of appeal’ form from VCAT’s files;[95] that Member Dea had ‘flagrantly lied’ in saying in her reasons for decision that Mr McKenzie and Constable Duffield had given evidence at VCAT (because those two persons were ‘not on the list of the seven (7) witnesses provided by the respondents to the Tribunal’ and therefore were ‘not even able to file witness statements’);[96] and that, in this regard, the Member was ‘either amnesiac or corrupted from the toe to the teeth’.[97]
[88]Referred to above as ‘Mr Djime’s April affidavit’.
[89]Mr Djime’s April affidavit, 5, 8, 9, 10.
[90]Ibid, 2-3.
[91]Ibid, 2-3.
[92]Ibid, 3.
[93]Ibid, 4.
[94]Ibid, 5.
[95]Ibid, 6. See above.
[96]Ibid, 9.
[97]Ibid, 9.

Significantly for my conclusion as to how best to deal with the present application for leave to appeal, in his April affidavit[98] Mr Djime criticised two named senior officers of the Victorian Supreme Court Registry because they ‘unlawfully refused’, initially, to file Mr Djime’s application for leave to appeal on the basis that the proposed application did not include a request that the matter be remitted to VCAT for re-hearing and re-determination. In purported support of this point, the affidavit exhibits (as exhibit 2) a handwritten note of a possible form of claim for remittal said by Mr Djime to have come from the Supreme Court Registry. According to his affidavit, Mr Djime, as plaintiff, has ‘categorically refused’ to make such a request. He deposes that Registry officers only accepted the application for leave to appeal for filing after complaints had been lodged against them for ‘undue pressure’ and ‘unlawful acts of corrupted practices’. What really happened, no doubt, was that the Registry officers did their best to assist Mr Djime by pointing out the necessity or, at least, the desirability, for his sake, of including a request for remittal to VCAT and of his framing and pursuing his case in the Court accordingly. However, it seems that, in typical fashion, Mr Djime responded to advice along those lines by dogmatically refusing it and by scandalously and baselessly defaming those who were trying to assist him.
[98]Ibid, 2.

An affidavit in response of the respondents’ solicitor, Sarah Ralph, (‘the second Ralph affidavit’) was affirmed on 12 May 2016 and filed on 13 May 2016, in accordance with Associate Justice Mukhtar’s directions. This affidavit, too, was (understandably) accompanied by lengthy exhibits, filling two additional lever arch folders. The exhibits were mainly copies of email correspondence (some with large attachments of VCAT documents or VCAT transcript) that had been exchanged during the VCAT proceeding. The exhibits also included an audio recording of the VCAT hearing of 13 May 2015.

In the second Ralph affidavit, so far as presently relevant, Ms Ralph first dealt with Mr Djime’s assertion that the respondents’ summary dismissal application had been filed late at VCAT. Ms Ralph demonstrated clearly and comprehensively that Member Dea had been perfectly correct in finding, as she did (see above), first, that the respondents (by their solicitors) had sent an email attaching their summary dismissal application to VCAT on 25 March 2015, i.e. within the period specified in paragraph 2 of VCAT’s order of 11 March 2015; and, secondly, that VCAT’s system had not received or accepted the email. Of course, the order of 11 March 2015 was merely an interlocutory order made by a statutory tribunal. Hence the times set by the order were inherently variable. So the application for summary dismissal would not have been invalid even if it had been filed a day late. However, Mr Djime had stubbornly refused (and still refuses) to accept this. Further, as already mentioned, Mr Djime had continued in his April affidavit to make numerous disgraceful allegations against the solicitors, the transcript providers and others in relation to this issue. Understandably, then, Ms Ralph felt compelled to deal with those allegations in detail and to show that they were baseless. By the first part of this affidavit, and by the relevant exhibits, she did so.[99]
[99]Second Ralph affidavit, [4]-[34].

The next part of the second Ralph affidavit[100] deals with Mr Djime’s complaints about the calling of evidence from Mr McKenzie and Constable Duffield at VCAT on 5 November 2015. Read with the first Ralph affidavit and with the relevant parts of the VCAT transcript, the second Ralph affidavit shows that what occurred did not involve any breach of any binding legal requirement (or, for that matter, any procedural unfairness – indeed, Mr Djime does not allege that there was a denial of procedural fairness in the normally understood sense). The list of seven witnesses that had been referred to by Mr Djime was not a legally immutable list. The list was in a document that had been voluntarily provided to VCAT and Mr Djime by counsel for the respondent at the commencement of the hearing on 5 October 2015 for the assistance of all parties.[101] True, the names on the list correspond with the identities of the seven witnesses whose statements had been filed and served by the respondent on 23 September 2015, in accordance with VCAT’s directions of 31 August 2015. Those witnesses included Mr McKenzie, who was a senior legal officer with Victoria Police.[102] However, as the second Ralph affidavit says,[103] during the hearing on 5 and 6 October 2015 counsel for the respondents had foreshadowed that variations would or might be sought. As to Mr McKenzie, counsel had told VCAT that searches by Mr McKenzie were ongoing in relation to one particular alleged incident relied on by Mr Djime, said to have occurred at a house in Sutton Street, Reservoir on an unidentified date in 2012. Partly in the interests of procedural fairness to Mr Djime, counsel had requested leave to prepare an updated statement for Mr McKenzie, to be filed at a later date, with a view to Mr McKenzie being called on 5 November 2015, rather than during the October hearings.[104] As to Constable Duffield, on 5 October 2015 counsel had informed VCAT, as already mentioned, that Constable Duffield had been overseas for some time.[105] Constable Duffield was a relevant witness in relation to the abovementioned incident at the Footscray Railway Station on 15 May 2013. As mentioned above, the updated statement of Mr McKenzie and the statement of Constable Duffield had been filed at VCAT on 30 October 2015, but it seems (from the VCAT transcript) that the statements may not have reached Mr Djime prior to the hearing on 5 November 2015. At that hearing, VCAT offered Mr Djime an adjournment if he needed more time to prepare to cross-examine Mr McKenzie or Constable Duffield. This offer was made several times. Mr Djime refused each offer. Instead, he demanded that the two proposed witnesses not be allowed to give evidence at all. Member Dea ruled that the two proposed witnesses could be called. Mr Djime then deliberately absented himself from the hearing room while the two witnesses gave evidence.[106]
[100]Ibid, [35]-[41].
[101]Ibid, [37]-[38]. See also VCAT transcript, 5 November 2015, 2.
[102]See VCAT transcript, 5 November 2015, 39.
[103]Second Ralph affidavit, [39].
[104]See VCAT transcript, 5 October 2015, 13, 95; VCAT transcript, 6 October 2015, 184. See also VCAT transcript 5 November 2015, 8-9, 10, 29.
[105]See VCAT transcript, 5 October 2015, 3, 16; VCAT transcript, 6 6 October 2015, 184. See also VCAT transcript, 5 November 2015, 8-9, 29-34.
[106]Second Ralph affidavit [43]-[44]. See VCAT transcript, 5 November 2015, 1-41.

The last part of the second Ralph affidavit consisted of a denial of the (continued) allegations of corruption, fraud and dishonesty contained in Mr Djime’s April affidavit, insofar as those allegations related to the respondents, counsel for the respondents, Norton Rose Fulbright Australia and Ms Ralph herself.

On 3 June 2016 the respondents filed another affidavit of Ms Ralph,[107] this time exhibiting a transcript of the VCAT hearing of the summary dismissal application on 13 May 2015, the transcript having been produced from the abovementioned audio.
[107]Third Ralph affidavit.

On the same day (3 June 2016), the proceeding came on again before Associate Justice Mukhtar. In his Honour’s order made that day, under ‘Other Matters’, it was recited, amongst other things, that the orders were being made to enable the matter to be fixed for hearing ‘even though the applicant has filed materials that would be unacceptable if prepared by a legally represented litigant’.[108] It was noted that the five large lever arch folders of material relating to the VCAT proceedings that had been filed by the respondents prior to 3 June 2016 were paginated. It was said that these would enable a Judge to be taken to any procedural, evidentiary or substantive matters and that this obviated the need for a court book. (I observe in passing that the then state of the papers did not in fact enable the Court at trial to be taken to all relevant procedural, evidentiary and substantive matters and that this had to be rectified subsequently.[109]) It was further recorded that ‘Mr Djime can be relieved of the need to file written submissions, and to use what is in his materials so far and unwritten presentation of his case’ [sic]. (Again, this proved to be problematic, given the state of Mr Djime’s ‘materials’.) It was noted that Mr Djime did not wish to file any further materials in support of his application for leave to appeal. His Honour’s order included, among other things, an order that by 30 June 2016 Mr Djime file and serve an affidavit exhibiting, if he had it, the draft leave to appeal documentation which he claimed to have sought to file at the Registry in July 2015 or, otherwise, a statement as to what had happened to it; an order (as mentioned above) requiring again that Mr Djime abstain from making unsupported accusations of corruption and dishonesty; an order (made over Mr Djime’s opposition) giving the respondents leave to file the third Ralph affidavit; an order that a further affidavit in opposition be filed and served by 14 July 2016; an order relieving the applicant from filing an outline of submissions; an order that the respondents file and serve their outline of submissions, and a chronology, by 4 August 2016; an order dispensing with the need for an appeal book; an order that the application for an extension of time and for leave to appeal and (if leave be granted) the appeal itself be referred all together for hearing and determination by a Judge of the Court on 1 December 2016 on an estimate of 2-3 days.
[108]Djime v Le [2016] VSCA 105 was cited.
[109]See further below.

On 29 June 2016 Mr Djime filed another affidavit (‘Mr Djime’s June affidavit’). According to Associate Justice Mukhtar’s orders of 3 June 2016, the affidavit should have been confined to exhibiting the earlier draft application for leave to appeal or explaining what had become of it. The affidavit did exhibit the earlier draft documentation (as exhibit 1). Unfortunately, however, it went much further. It was 17 pages long. There was also a bulky, disparate, bewildering collection of exhibits (nine in total). First, the affidavit included a somewhat new quasi-legal contention that a combination of certain alleged actions by Registry staff in July 2015 and January 2016 meant that no application for an extension of time was required. (There is no longer any point in dwelling on this, because, as mentioned above, I have myself, to the extent necessary (if any), extended time.) Next, Mr Djime returned to his theme that the summary dismissal application at VCAT was ‘out of time’, ‘invalid’ and ‘void’. He commented that this was one of the main reasons or grounds on which he was bringing the present proceeding.[110] Then, despite VCAT’s repeated warnings and Associate Justice Mukhtar’s two relevant orders, Mr Djime resumed his campaign of making scandalous and unsupported allegations of dishonesty and corruption against the VCAT Member, the solicitor for the respondents, the respondents’ counsel, numerous staff of the Supreme Court and various others, mostly by name.
[110]Mr Djime’s June affidavit, 3-4.

In his June affidavit,[111] Mr Djime once again complains about having been advised by Registry staff in January 2016 that he ought to include in his Court documents a claim that the matter be remitted to VCAT for rehearing and redetermination. Mr Djime again makes it very evident in the affidavit that he refused to do so and that he will not ever seek this. He again exhibits[112] the handwritten note of a possible form of request for remittal that he says Registry prepared in January 2016 in relation to his intended application. He says again that this shows that Registry were ‘unlawfully forcing the applicant to bring the proceeding back to the VCAT – Tribunal for rehearing’. He says again that to make such a request is something that he ‘categorically refused to do’. It is clear, then, that the omission of any claim for remittal to VCAT in the Court documents actually issued by Mr Djime was deliberate. Mr Djime maintained the same position in the oral hearing before me.[113] As mentioned above, I consider that I should act on Mr Djime’s unequivocal determination to have this case considered on the basis that there is not, and will not be, any claim for, nor any prospect of, remittal to VCAT.
[111]At 12-13.
[112]As exhibit 6.
[113]See below.

On 14 July 2016 the respondents filed an affidavit affirmed on 13 July 2016 by Sarah Ralph (‘the fourth Ralph affidavit’). This affidavit, with its exhibits, fills a sixth lever arch folder. Ms Ralph denied the allegations of dishonest, fraudulent or otherwise improper conduct made by Mr Djime in Mr Dime’s June affidavit. She referred to her first affidavit, which set out her contact with the Supreme Court of Victoria and its staff between 17 March 2016 and 23 March 2016. She deposed that she and other staff of Norton Rose Fulbright Australia had since had contact with the Supreme Court of Victoria in the running of this proceeding, and that this contact had been by email, by appearing before Associate Justice Mukhtar and by attending before the Supreme Court Registry to file documents and to serve those documents on Mr Djime by leaving copies with the Self Represented Litigants Coordinator. Ms Ralph exhibited a bundle of all of the email communication between Norton Rose Fulbright Australia and the Supreme Court of Victoria from 23 March 2016 until 13 July 2016. She also exhibited the transcript of the hearings on 1 April 2016 and 3 June 2016 before Associate Justice Mukhtar. She deposed that she had arranged for other staff of Norton Rose Fulbright Australia to file documents on behalf of the respondents on 1 April 2016, 4 April 2016 and 13 May 2016, and that she herself had not personally attended the Supreme Court Registry for any purpose related to the proceeding. Mr Djime has not sought to cross-examine Ms Ralph on this or any other of her five affidavits.[114] I accept all of her affidavits entirely.
[114]See below as to the fifth Ralph affidavit.

On 21 July 2016 Mr Djime filed a summons, supported by an affidavit, seeking an expedited hearing of this proceeding. On 2 August 2016 Associate Justice Daly dismissed the summons. I have not had regard to the affidavit in support of the dismissed summons.[115]
[115]At the hearing on 1 December 2016, Mr Djime indicated that he relied upon his three other affidavits and the exhibits to those affidavits, but made no mention of the July affidavit. See transcript of hearing on 1 December 2016, 18^th to 19^th pages.

·Conduct which is helpful or beneficial for the individual is likely to be a service where it is consistent with the interests or welfare of the individual;
·The fact that the conduct might arise in the exercise of a statutory power or in the performance of a statutory duty might assist in identifying the nature of the conduct and whether it falls within the meaning of a service but those matters are not determinative;
·There is a distinction to be drawn between the services police provide to the community at large when undertaking duties such as preventing criminal conduct and an arresting officer’s dealings with an alleged offender;
·Police functions which are associated with the prevention and detection of crime when they intervene in situations where there is a disturbance of the peace or where an offence has been, or may be, committed are services provided to the public at large and [to] individuals who may suffer injury or harm [and] are likely to be services under the EO Act. In those circumstances, the service might include other functions such as protecting persons from injury or death and restoring and maintaining peace and good order;
·Police provide a service when they respond to a specific request for assistance, such as when an emergency call is made. When police attend following a request for assistance, a service may be provided to a person who is being asked to leave or move on or take some other action which is intended to defuse the circumstances which led to the police attendance rather than because it is suspected that an offence has been committed;
·Depending on the particular circumstances, after an alleged offender has been arrested and passed into police custody, police may have a public duty to provide services by way of protecting the person from injury or death and protecting property from damage;
·Services are not provided when police investigate an alleged offence, question an alleged offender, arrest an alleged offender, deal with a bail application, decide whether or not to lay charges, decide whether or not to prosecute charges and decide how a matter will proceed in court;
·Services are not provided when police serve summonses and execute search warrants and take other steps in respect of the laying of charges and their prosecution;
·During the course of dealing with a situation or event, police may at some points in time provide a service to an individual but the conduct may cease to be a service. That might occur if police: take action to investigate a possible offence; deal with an alleged offender; deal with other unlawful conduct; act to enforce the law; or otherwise intervene to maintain peace and order; and
·Whether in particular circumstances a service is being offered will require consideration of the conduct of police within the particular factual context.

In contrast to this statement of principles, Mr Djime’s position appears to be that everything done or required or able to be done by police amounts to a ‘service’ for the purposes of the EO Act.[155] That position is clearly wrong, as VCAT’s analysis shows.
[155]See, eg, Mr Djime’s draft notice of appeal, 21-23 but cf 27.

Another contention by Mr Djime - perhaps in the nature of an alternative – seems to amount to a contention that VCAT’s second last dot point in its statement of principles is wrong. He seems to contend that once police officers embark on a particular course of conduct that amounts to a ‘service’, everything they do thereafter that is in any way related to what they were doing at the beginning remains a ‘service’. In any event, he certainly contends that, because the police were admittedly providing services to him when they first responded to a call to attend at the residential premises in Sunshine on 18 September 2013 to deal with the dispute that was occurring there, Sergeant Kearnes was necessarily still providing ‘services’ to Mr Djime when, after a time, the Sergeant produced gas spray and arrested Mr Djime at the premises.[156] However, VCAT was clearly correct to hold that, during the course of dealing with a situation or event, police may at some time provide a service to an individual but that the conduct may cease to be a service. The examples given by VCAT in its second last dot point are apt. In this particular case, in my view, it was well open to VCAT to hold, as it did,[157] that Mr Djime could not be said to have been receiving a service from the time when Sergeant Kearnes took out the gas spray and arrested Mr Djime on 18 September 2013.
[156]Mr Djime’s notice of appeal, 38.
[157][2015] VCAT 941 [129].

Mr Djime has not argued, either before VCAT or before this Court, that the changed situation at the residential premises in Sunshine should have been characterised, for the purposes of s 44 of the EO Act, as involving a ‘refusal’ of police services to him (cf s 44(1)(a)).[158]
[158]Cf Commissioner of Police v Mohamed (2009) 262 ALR 519, 528 [36], 530 [44]; cited by Member Dea at Djime v Kearnes (Human Rights) [2015] VCAT 941 [59].

There is nothing else in Mr Djime’s material relating to the statutory concept of ‘services’ that warrants mention.

Summary dismissal under s 75 of the VCAT Act

As indicated above, of Mr Djime’s VCAT claims that are still relevant, VCAT summarily dismissed eight of them as being misconceived within the meaning of s 75 of the VCAT Act on the basis that no ‘services’ were involved. Three of the other claims that were summarily dismissed, namely claims (f), (n) and (q), were so dismissed on the basis that they were lacking in substance and an abuse of process within the meaning of s 75(1) of the VCAT Act. Another three claims, namely claims (v), (w) and (x), were summarily dismissed on the basis that they were lacking in substance (only).

Mr Djime has not contended before this Court that VCAT misunderstood the nature of, or the limits on, its power of summary dismissal under s 75 of the VCAT Act. Nor has he contended that VCAT misapplied that power, except, of course, that Mr Djime asserts that VCAT made various substantive errors of fact of law and that, ultimately, VCAT should have upheld, rather than dismissed, his claims for relief. Understandably then, the respondents have made no submissions to this Court dealing with the nature or limits of s 75 of the VCAT Act in general or with the manner of its exercise in this particular case. Nevertheless, bearing in mind that large parts of Mr Djime’s case were disposed of pursuant to s 75 of the VCAT Act, I consider it desirable to make some observations about this matter.

Member Dea included a general discussion of s 75 of the VCAT Act in her decision of June 2015. The Member said:[159]
[159][2015] VCAT 941 [8]‑[13]. Footnotes renumbered and authorised reports substituted where applicable.

…
8.Section 75 of the VCAT Act gives the tribunal discretion to dismiss or strike out a proceeding whether or not all the evidence has been heard. It can do so if, in its opinion, all or part of the proceeding is frivolous, vexatious, misconceived or lacking in substance (75(1)(a)), or is otherwise an abuse of process (75(1)(b)). An application for an order under section 75(1) may be made at any time.
9.There have been many cases about section 75 and the law about how to approach the section is clear.[160] The tribunal is required to exercise caution before summarily terminating a proceeding. It should only do so if the proceeding is obviously hopeless or unsustainable in fact or in law, or on no reasonable view can justify relief, or is bound to fail. This will include, but is not limited to, a case where an application can be said to disclose no reasonable cause of action or where a respondent can show a good defence sufficient to warrant the summary termination of the proceeding.
10.If the tribunal is not satisfied that the proceeding should be summarily dismissed, the matter should go to a hearing so the applicant has the chance to have the application heard and so the evidence can be tested in the usual way. When the high bar set out above is not reached, and there is simply a dispute between the parties as to the application, the matter should go to hearing.
11.In considering an application under section 75, the tribunal must take the applicant’s case and the evidence presented at its highest.
12.An application is ‘misconceived’ under section 75(1)(a) if it falls outside the tribunal’s jurisdiction, it is statute barred or it concerns matters that the applicant is estopped from raising.[161] Estoppel applies to a range of circumstances including where a factual or legal issue in the application has already been heard and determined (issue estoppel). An application is ‘lacking in substance’ if, after the applicant has produced all of his or her evidence, there is nothing of any substance for the respondent to answer.[162]
13.The term ‘abuse of process’ contained in section 75(1)(b) is not defined in the VCAT Act. It is understood to be a flexible concept designed to ensure that processes of the tribunal are used in good faith. It can include any process used in a way that is manifestly unjust, oppressive or unfair to a party or would otherwise bring the administration of justice into disrepute among right-thinking people.[163] The categories of abuse of process are not closed but include proceedings which are manifestly groundless, without foundation or which serve no useful purpose. An abuse of process may arise where, despite the fact that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate again a case which has already been disposed of by earlier proceedings.[164]

[160]The cases include the following: State Electricity Commission of Victoria v Rabel & Ors[1998] 1 VR 102; Norman v Australian Red Cross Society(1998) 14 VAR 243; Towie v State of Victoria & Ors[2002] VCAT 1395; Forrester v AIMS Corporation[2004] VSC 506; Naylor v Oakley Thompson & Co Pty Ltd & Ors[2008] VCAT 2074.

[161]Ballarto Pastoral Pty Ltd v Department of Primary Industries [2006] VCAT 478.

[162]Assal v Department of Health, Housing and Community Services (1992) EOC 92-409, applied in Liu v University of Melbourne [2002] VCAT 896.

[163]Molyneux v VCAT & Anor (2007) 15 VR 531 at [53].

[164]Chief Justice French in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at [33] quoting with approval Walton v Gardiner(1993) 177 CLR 378, 393 per Mason CJ, Deane and Dawson JJ.

I have no issue with these general statements of principle.

However, two aspects of the Member’s actual disposition of the respondents’ s 75 application have caused me to question whether the Member kept these general principles firmly in mind at all times.

The first aspect relates to Mr Djime’s claim that was designated (a). This was a claim that Mr Djime was sexually harassed by two police women in the course of the incident at the Footscray Railway Station on 15 May 2013. The claim was dismissed under s 75 on the basis that there were no police ‘services’ involved at the time of the alleged sexual harassment. Hence the sequence and timing of the alleged events was of potential importance. At paragraph 92 of her first decision, after referring to Mr Djime’s oral evidence and his (adopted) particulars of claim, the Member said (emphasis added):

On this evidence, I am satisfied on the balance of probabilities that the interactions between Mr Djime and the police officers commenced when he entered the platform area without touching on [a MYKI card].

Generally speaking, no part of a VCAT proceeding should be summarily dismissed under s 75 of the VCAT Act on the basis of a finding made ‘on the balance of probabilities’. The Tribunal needs to have a higher standard of satisfaction than that. The Tribunal needs to be satisfied that the claim is ‘undoubtedly hopeless’.[165] This is the equivocal of the ‘doomed to fail’ test which, as indicated in paragraph 124 above, was applied by Kyrou J in Towie in the context of an issue about the scope of the concept of ‘services’ under the predecessor to the EO Act.
[165]Weber v Deakin University [2018] VSCA 53 [24].

However, if Member Dea did make a slip in this regard, it was not a slip of any ultimate significance. The finding in question was not really in controversy. It was based on Mr Djime’s own evidence and particulars of claim. Mr Djime himself said that the police women had raised his failure to touch on a MYKI card before they commenced to make the alleged remarks which constituted the heart of his claim of sexual harassment. Accordingly, there was nothing actually unfair to Mr Djime in the Member’s finding as to the sequence of events.

The second matter in relation to which I have wondered whether the Member properly applied the relevant general principles was constituted by the fact that she held, in relation to four of Mr Djime’s claims, namely claims (f), (n), (q) and (r), that each represented an abuse of process. In relation to each of these four claims, Mr Djime had alleged that charges laid against him in the Magistrates’ Court represented either victimisation or discrimination against him.

The Member noted that one of the charges had been found proven in the Magistrates’ Court. She held that, in those circumstances, it would be an abuse of process for the Court to embark on a hearing to enquire into the claims by Mr Djime that the charges had no proper foundation and were only laid by reason of victimisation or discrimination.[166]
[166]Djime v Kearnes (Human Rights) [2015] VCAT 941 [153] and [166]‑[170] and Attachment A Items (f), (n), (q) and (r).

It seems to me that, on the limited material that was before VCAT relating to the charges in the Magistrates’ Court, it may not have been appropriate to find, on a summary basis pursuant to s 75 of the VCAT Act, that the claims represented an abuse of process.

On the other hand, I note that, subsequent to VCAT’s decisions, more light was thrown on the charges against Mr Djime that had been determined in the Magistrates’ Court. This was done by the judgment of the Court of Appeal in Djime v Le[167] to which my attention was drawn by counsel for the respondents during the hearing before me, as mentioned above. The judgment of the Court of Appeal does tend to support the proposition that VCAT’s findings of abuse of process did not, in the end, involve any real injustice towards Mr Djime.
[167][2016] VSCA 202.

In any event, any error in VCAT’s findings of abuse of process could not, by itself, lead to the overturning of any part of VCAT’s decision on the s 75 application. That is so because, in relation to each of claims (f), (n), (q) and (r), VCAT assigned an additional reason for summary dismissal. Nothing that has been submitted to this Court by Mr Djime, nor anything else that I have been able to discern, suggests to me that there is any unsoundness in any of those additional reasons for VCAT’s summary dismissal of claims (f), (n), (q) and (r).

In passing from this topic, I would mention again the strictness of the test for summary dismissal under s 75 of the VCAT Act, as recently highlighted by the Court of Appeal in Weber v Deakin University[168] and Kahn v VCAT.[169]I would also respectfully observe that the entertaining of applications for summary dismissal under s 75 of the VCAT Act can lead to unfortunate consequences, particularly where, as in the present case, the upshot is to have separate hearings on related issues of fact and law, with inevitable duplication of effort and other complications.[170]
[168][2018] VSCA 53 [24].
[169][2018] VSCA 351 [87].
[170]See, generally, Jacobson v Ross & Jacobson [1995] 1 VR 337; Rainsford v Victoria (2005) 144 FCR 279, 290-294 [34]-[44] (Kenny J, with whom Hill and Finn JJ agreed); Commissioner of Police v Mohamed (2009) 262 ALR 519, 522-523 [10]-[13] (Basten JA), 536 [87]-[89] (Handley JA).

The Charter

In his particulars of claim (of 36 pages) filed with VCAT, Mr Djime did not refer once to the Charter by name, much less to any particular section of that Act. The closest he came was to make passing, generalised references to alleged ‘human rights breaches’ or ‘human rights violations’ on the part of Sergeant Kearnes,[171] alleged abuses of Mr Djime’s ‘basic human and constitutional rights’ by Senior Constable Wilson,[172] equality before the law[173] and the right to privacy.[174]
[171]Particulars of Claim, 7, 8.
[172]Ibid, 17.
[173]Ibid, 9.
[174]Ibid, 10.

Nevertheless, in her June 2015 decision, Member Dea referred to the Charter. She said that she understood that Mr Djime had claimed that the respondents had breached his Charter rights to freedom of expression and freedom of movement.[175] Member Dea proceeded to refer to the terms of ss 12 and 15 of the Charter. She then said that, given the claims of discrimination made, she had assumed that Mr Djime had also relied on the Charter right to recognition and equality before the law. Accordingly, Member Dea quoted s 8 of the Charter. She went on to refer to the definition in the Charter of discrimination, which in turn picks up the definition in the EOA. The Member also referred to ss 7, 38 and 39(1) of the Charter.
[175]Djime v Kearnes (Human Rights) [2015] VCAT 941 [33].

In paragraph 41 of the decision, the Member said (footnote renumbered):

As a consequence of Bell J’s decision in Goode v Common Equity Housing[176], it is clear that, in respect of an act or decision of a public authority, where an applicant may seek relief or remedy for unlawfulness under one Act (such as the EO Act or the RRT Act), then a claim for relief or remedy for unlawfulness may also be made under the Charter.

[176][2014] VSC 585 [39].

Later in her reasons for decision of June 2015, Member Dea summarily dismissed certain claims of racial discrimination made by Mr Djime in relation to the incident at the Footscray Railway Station on 15 May 2013. In particular, the Member dismissed Mr Djime’s claims insofar as they included a complaint to the effect that the police officers present had prevented Mr Djime from boarding a train at the station and had removed him from the station. Member Dea then said:[177]

At the hearing, Mr Djime suggested that his Charter right to freedom of movement was breached when he was stopped from boarding the train. I have not considered that allegation because, if the discrimination claim cannot proceed, the Charter claim arising from the same circumstances also cannot proceed.

[177]Djime v Kearnes (Human Rights) [2015] VCAT 941 [95].

It seems to me that this paragraph, read in conjunction with paragraph 41 of the first decision as set out above, probably involves a misreading or misunderstanding of the judgment of Bell J in Goode. Mr Djime had made claims under the EO Act. He was taken to have made parallel claims under the Charter based on the same facts and circumstances. It is not suggested that he made his EO Act claims merely colourably, in order to enable him to bring a claim under the Charter. In those circumstances, it seems to me, provisionally, that the mere fact that his EO Act claims were dismissed as not involving services did not render his corresponding Charter claims inadmissible. My provisional view is, I think, supported, not contradicted, by the judgment of Bell J in Goode. This is the Charter point that was notified to VEOHRC under s 35 of the Charter after the hearing.[178]
[178]As mentioned above, VEOHRC chose not to intervene. My provisional view as to the Charter point seems to be supported, also, by the judgment of Tate JA in Bare v IBAC (2015) 48 VR 129, 257 [392], fn 360 and by the judgment of John Dixon J in Certain Children v Minister for Families and Children (No 2) (2017) 42 VR 441 [545]‑[549].

On the other hand, if there was legal error here on the part of VCAT, nevertheless, for all of the reasons indicated above, it remains inappropriate to grant Mr Djime leave to appeal on this account.

VCAT appeared to make a corresponding probable error about the availability of claims under the Charter in paragraph 194 of its June 2015 decision. If that paragraph (also) contained an error of law, it was an error of even less significance than the error that appears to be contained in paragraph 95. The claims being dealt with in paragraph 194 were claims (v), (w) and (x). These claims were found to be lacking in substance on the evidence and the facts. VCAT’s determination in that regard appears to be perfectly sound.

Further, by reason of s 39(3) of the Charter, there is, to say the least, very real doubt as to whether VCAT would have had the power to make any award of monetary compensation for breach of the Charter.[179]
[179]Djime v Le [2016] VSCA 202 [21]; Pound and Evans, Annotated Victorian Charter of Rights 2^nd edition. 2019, 316.

Section 75 of the EO Act

There was one other matter decided by VCAT in this case that might be considered to involve an error of law.

In its second decision, VCAT upheld a submission made by the respondents to the effect that certain alleged conduct of Sergeant Kearnes, even if it would otherwise have given rise to liability, was protected under s 75 of the EO Act as having been done with statutory authority. The defence was raised in relation to two claims in particular. Those claims related to Sergeant Kearnes’ attendance at the residential premises in Sunshine on 18 September 2013. Mr Djime had alleged that Sergeant Kearnes discriminated against him by requesting that he, Mr Djime, rather than Mr G Besanko, leave those premises. He also alleged that Sergeant Kearnes was assisting or authorising discrimination by Mr G Besenko when Sergeant Kearnes allegedly evicted Mr Djime from the Sunshine premises. These claims were originally designated as claims (h) and (m) at the first hearing. On that occasion, VCAT allowed them to proceed to a full hearing. At the full hearing, they were redesignated as claims (iii) and (iv).

In paragraphs 126 to 129 of its second decision, VCAT accepted the respondents’ submission based on s 75 of the EO Act. In particular, VCAT accepted that s 75 of the EO Act was attracted because, at the relevant time, Sergeant Kearnes was acting in accordance with his role as a police officer, including by acting to preserve the peace, being a role referred to in the Victoria Police Act 2013 and the Police Regulation Act 1958.

In my view, it is at least arguable that s 75 of the EO Act was not attracted on that basis. As the VEOHRC had submitted to VCAT in its amicus curiae submissions dated 15 April 2015, it is important to distinguish, in applying the terms of s 75, between statutory provisions which authorise the provision of the relevant services and statutory authorisation of the specific acts of discrimination. VEOHRC further submitted that while s 9 of the Victoria Police Act 2013 (Vic) authorises police officers to ‘preserve the peace’ and do various other things, s 9 does not, in the sense required by s 75 of the EO Act, authorise acts of discrimination in the course of discharging those functions. It may well be that VCAT should have accepted that submission.[180]
[180]See also Phillips v Andrews (Human Rights) [2018] VCAT 1714 [46]‑[56], especially at [56].

However, as already indicated, it is unnecessary and would be inappropriate for me to express any concluded view on this point. That is so not only for the reasons to which I have already adverted, but for the further reason that Mr Djime failed on the facts in relation to the relevant claims. VCAT found, as a first and independent basis for dismissing these claims at the final hearing, that Mr Djime had failed to prove that there was any element of discrimination in what Sergeant Kearnes had done on 18 September 2013 at the residential premises in Sunshine.

Other points raised by Mr Djime

As mentioned above, Mr Djime has included a multiplicity of points of challenge to VCAT’s decisions in his materials before this Court. I have already dealt with some of them. In my view, there are no others with any merit. Mr Djime has advanced stridently and repeatedly certain points with which I have not yet dealt. In deference to his efforts, but also in order to demonstrate how misconceived these points and most of his submissions generally are, I will say something now about each of these particular points. For the most part, the points relate to VCAT’s decision in June 2015 to dismiss Mr Djime’s claims of sexual harassment and discrimination arising out of the incident at the Footscray Railway Station on 15 May 2013. They relate most particularly to the dismissal of Mr Djime’s claim of sexual harassment made against Senior Constable Wilson and Senior Constable Van Der Sluis (designated as claim (a)).

First, Mr Djime contends that claim (a) and the other related discrimination claims were maintainable under the EO Act even outside the ‘services’ context. In particular, he contends that VCAT should have found that the two police women were operating together to sexually harass him and that, had VCAT so found, it could have entertained claim (a) and the related claims as claims covered by s 105 of the EO Act.[181] Section 105 provides that a person ‘must not request, instruct, induce, encourage, authorise or assist another person to contravene a provision of Part 4 or 6 or [7].’ It is true that discrimination is prohibited by Part 4 of the EO Act and that sexual harassment is prohibited by Part 6 of the EO Act, but only in the ‘areas’ specified in those parts respectively. The only specified area that could conceivably have been relevant in this case was that of the provision of ‘services’ as dealt with in s 44 (in relation to discrimination) and s 99 (in relation to sexual harassment). Without ‘services’, there could have been no contravention of Part 4 or of Part 6 in this instance, and hence no breach of s 105, even if the two police women were operating together to engage in sexual harassment or were operating together and/or with other police officers to engage in discrimination.
[181]See, eg, Mr Djime’s draft Notice of Appeal, pages 6‑7.

Additionally, Mr Djime argued that VCAT should have found that the relevant discrimination and sexual harassment was alleged by him to have occurred in the areas of ‘physical appearance’ and ‘access to and use of public places’. Mr Djime contends that discrimination in these ‘areas’ is prohibited by Part 4 of the EOA.[182] However, that is not so. For the purposes of the EO Act, physical appearance (or, more correctly, ‘physical features’) is an attribute on the basis of which discrimination is prohibited, but only in the areas of activity specified in Part 4.[183] Part 4 does not set out any area of activity defined by reference to physical appearance or physical features.
[182]Mr Djime’s draft notice of appeal, pages 24‑25.
[183]See EO Act, s 4(1), definition of ‘physical features’ and s 6 (Attributes).

Likewise, Mr Djime’s reliance on the notion of access to, or the use of, public places is misconceived. Section 57(1) of the EO Act provides that a person must not discriminate against another person on the basis of a disability in relation to public premises. However, Mr Djime made no claim that he had been discriminated against on the basis of disability.

Further, Mr Djime contends that VCAT should have recognised his complaint against the two police women as being a complaint not only of sexual harassment but of sexual assault. However, of course, even if his complaint were properly so characterised, it would not overcome the problem that ‘services’ were found not to be involved. VCAT had no power in the proceeding to entertain a separate or additional claim for common law assault. VCAT made this point itself.[184]
[184]Djime v Kearnes (Human Rights) [2015] VCAT 941 [86]. Mr Djime’s complaints about ‘fake’ transcripts went mainly to his assertions of sexual assault. So his complaints in this regard were not only scandalous and baseless, but pointless.

Lastly, in this bracket, Mr Djime has contended that VCAT believed or understood that a claim for victimisation could only be made if the victimising occurred in a specified area, such as the provision of services. If VCAT had believed or understood that, it would indeed have been in error. But it did not. There is absolutely nothing in VCAT’s two sets of reasons to indicate that it made any such error.

VCAT’s second decision

For the sake of completeness and for the avoidance of doubt, I note that the bulk of Mr Djime’s attack on VCAT’s second decision is represented by his expressions of dissatisfaction[185] with the fact that the Member permitted the respondents to rely on an updated statement by Mr McKenzie and to rely on evidence from Constable Duffield. As I have endeavoured to demonstrate above (under the heading ‘Salient parts of the proceeding at VEOHRC, VCAT and the Supreme Court’), there is absolutely no merit in Mr Djime’s attack in these respects.
[185]To put it extremely mildly.

Further, putting aside the legal points with which I have already dealt, VCAT’s second decision represents a comprehensive rejection, on the facts, of each of the six claims that went through to a final hearing. In numerous instances, Mr Djime’s own evidence was simply not accepted. VCAT recorded, in relation to each claim, that it was simply not proven.

There were numerous factual links between the claims that were summarily dismissed at the first hearing and the six claims that were dismissed after the final hearing. Reading the two sets of reasons together, one gains the strong impression that even if all of Mr Djime’s claims that were summarily dismissed had been allowed to proceed to final hearing, he would not have succeeded in establishing any of them.

In any event, Mr Djime has certainly not discharged the heavy burden that falls upon any appellant who needs to persuade a court, in an appeal limited to a question of law, that the court or tribunal below was constrained to make a finding of fact in favour of the appellant, especially where the appellant was the claimant below. As Brooking JA said in Ericsson Pty Ltd v Popovski:[186]

It is a strong thing to reach such a conclusion in a case where the burden of proof lies on the appellant, who is therefore submitting not that an affirmative finding had no evidence to support it, but that the evidence was such as to necessitate an affirmative finding which was not made. It will be impossible to sustain this burden in cases where the refusal to make the finding sought may be grounded in a refusal, open to the Tribunal, to accept part or parts of the evidence.

[186](2000) 1 VR 260, 265 [14].

Mr Djime’s attack on VCAT’s second decision is manifestly hopeless.

Unavailability of any prospect of compensation or damages without a remittal to VCAT

As indicated above, Mr Djime states emphatically that he will never return to VCAT in relation to any of his claims. Instead, he contends that this Court should treat his claims (to the extent that he still presses them) as having been established by the evidence led at VCAT, and, on that basis, he says that this Court should award him large damages or other monetary compensation.

These contentions of Mr Djime are, of course, fanciful.

In VCAT’s first decision, many of Mr Djime’s claims were dismissed summarily. That first hearing proceeded on the agreed and understood basis that, to the extent that any of Mr Djime’s claims survived the summary dismissal application, the respondents would have an opportunity to cross-examine Mr Djime and his witnesses and to call their own evidence. Of course, that process has not occurred in relation to the claims that were summarily dismissed. Further, VCAT, not this Court, is the statutory repository of the power to decide on claims like those made by Mr Djime, one way or the other.[187]
[187]Osland v Secretary to the Department of Justice(No 2) (2010) 241 CLR 320, 323-3 [20]; Victorian Legal Services Commissioner v McDonald [2019] VSCA 18 [155]-[160]. See also my decision in XYZ v State Trustees Ltd (2006) 25 VAR 402 [64]; cf DHHS v Brown [2018] VSC 775 (Beach JA) [46]-[51].

In its second and final decision, VCAT dismissed Mr Djime’s remaining claims on the merits. Mr Djime has no prospect of achieving the setting aside of any part of VCAT’s second decision. It would therefore be legally impossible for either VCAT or this Court ever to award him any damages or monetary compensation in relation to the claims that were dealt with at VCAT’s final hearing.

Accordingly, the present case is entirely and clearly distinguishable from Obudho v Patty Malone’s Bar Pty Ltd.[188]
[188][2017] VSC 28, [44]‑[52], in which this Court was in a very different position and did see fit to assess an award in favour of the Mr Obudho.

Conclusion

For these reasons, leave to appeal will be refused.

I will hear the parties on the question of costs.

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[2019] VSC 117

28 February 2019 First Revision: 7 March 2019