Muto v Secretary to the Department of Transport, Planning and Local Infrastructure

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2013 04737

COUNCILLOR MILVAN MUTO	Plaintiff
v
SECRETARY TO THE DEPARTMENT OF TRANSPORT, PLANNING AND LOCAL INFRASTRUCTURE & OTHERS (According to the attached Schedule of Parties)	Defendants

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JUDGE:	WILLIAMS J
WHERE HELD:	Melbourne
DATES OF HEARING:	10, 11 and 12 September 2014
DATE OF JUDGMENT:	12 December 2014
CASE MAY BE CITED AS:	Muto v Secretary to the Department of Transport, Planning and Local Infrastructure & Ors
MEDIUM NEUTRAL CITATION:	[2014] VSC 619, First revision: 27 March 2015

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ADMINISTRATIVE LAW – Victorian Civil and Administrative Tribunal – Leave to appeal – Findings of gross misconduct and serious misconduct under Local Government Act 1989 – Whether denial of natural justice – Alleged bias – Whether breach of Local Government Act 1989 s 76 – Whether breach of Victorian Civil and Administrative Tribunal Act 1998 s 62, s 82, s 97, s 98, s 99, s 102, s 108, s 118, s 124 – Leave refused

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the First Defendant	Mr P Gray QC with Ms R Ellyard	Victorian Government Solicitor’s Office

HER HONOUR:

The applications

The plaintiff, Mr Muto, is a municipal councillor of the City of Greater Shepparton. He seeks leave to appeal from orders of the Victorian Civil and Administrative Tribunal (‘VCAT’) made on 10 July 2013 in VCAT proceedings B82 and B87 of 2012. Senior Member Byard and Member McNamara were the Tribunal Members who made the impugned orders.

The VCAT proceedings

In VCAT proceeding B87 (‘the gross misconduct proceeding’), the Secretary to the Department of Planning and Community Development obtained a finding of ‘gross misconduct’ against Mr Muto under s 81E of the Local Government Act 1989.

In proceeding B82 (‘the serious misconduct proceeding’), the second to seventh defendants, a group of six of Mr Muto’s fellow councillors (‘the councillors’), obtained a finding of ‘serious misconduct’ against him. They had been authorised to bring the proceeding by a Councillor Conduct Panel (‘CCP’) under s 81J of the Local Government Act.

The Secretary to the Department of Planning and Community Development was joined as a party to the serious misconduct proceeding on 31 December 2012, when the Tribunal made an order under s 82(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’) that the two proceedings be heard together. It should be noted that they were not consolidated under s 82(1)(a).

Administrative Arrangements Order 2013

Because Mr Muto raises the issue of the identity of the defendant Secretary, I will explain the effect of the Administrative Arrangements Order 2013.[1]
[1]Made under s 3 of the Administrative Arrangements Act 1983.

On 1 July 2013, by virtue of changes made under cl 6 of that order, the first defendant Secretary to the Department of Transport, Planning and Local Infrastructure, as a ‘New Body’,[2] succeeded to the Secretary to the Department of Planning and Community Development, being an ‘Old Body’,[3] in the two VCAT proceedings.[4] This meant that the serious misconduct proceeding and the gross misconduct proceeding each continued as if the change had not been made and the litigation could be given effect to, or enforced or completed in relation to the Secretary to the Department of Transport, Planning and Local Infrastructure in the same way as it would have been in relation to the Secretary to the Department of Planning and Community Development.
[2]See Table 1 of the Schedule to the Order.
[3]Ibid.
[4]The proceedings being ‘transactions’ under the definition in s 4 of the Order.

Clause 6 is in these terms:

Saving of existing transactions
If a transaction happened in relation to an Old Body before this Order takes effect –
(a)the transaction shall continue in the same way it would have continued if this Order had not been made; and
(b)the transaction may be given effect to, or enforced or completed, by or in relation to the New Body in the same way as it would have been given effect to, enforced or completed, by or in relation to the Old Body if this Order had not been made.

Given the effect of the Order, I will refer to each of the Secretaries as ‘the Secretary’ in these reasons.

The VCAT orders

On 10 July 2013, the Tribunal found that Mr Muto had engaged in conduct constituting ‘gross misconduct’ under para (b) of the definition in s 81A of the Local Government Act and conduct amounting to ‘serious misconduct’ under para (c) of the s 81A definition of that term.

Those definitions in s 81A were these:

serious misconduct by a Councillor means—
(c)conduct by a Councillor that contravenes the Councillor conduct principles after the Councillor has had a previous finding of misconduct, serious misconduct or gross misconduct made against them by … VCAT in the last 4 years;

gross misconduct by a Councillor means behaviour that—
(a) contravenes—
(i) the Councillor conduct principles; and
(ii)a section of this Act, the contravention of which has a penalty of at least 60 penalty units; or

(b)demonstrates that a Councillor is not of good character or is otherwise not a fit and proper person to hold the office of Councillor;

The ‘Councillor conduct principles' referred to in the definition of serious misconduct were set out in ss 76B and 76BA as follows:

76B Primary principle of Councillor conduct
It is a primary principle of Councillor conduct that, in performing the role of a Councillor, a Councillor must—
(a) act with integrity; and
(b)impartially exercise his or her responsibilities in the interests of the local community; and
(c)not improperly seek to confer an advantage or disadvantage on any person.

76BA General Councillor conduct principles
In addition to acting in accordance with the primary principle of Councillor conduct specified in section 76B, in performing the role of a Councillor, a Councillor must—
(a)avoid conflicts between his or her public duties as a Councillor and his or her personal interests and obligations;
(b)act honestly and avoid statements (whether oral or in writing) or actions that will or are likely to mislead or deceive a person;
(c)treat all persons with respect and have due regard to the opinions, beliefs, rights and responsibilities of other Councillors, Council staff and other persons;
(d)exercise reasonable care and diligence and submit himself or herself to the lawful scrutiny that is appropriate to his or her office;
(e)endeavour to ensure that public resources are used prudently and solely in the public interest;
(f)act lawfully and in accordance with the trust placed in him or her as an elected representative;
(g)support and promote these principles by leadership and example and act in a way that secures and preserves public confidence in the office of Councillor.

Having made its findings of gross and serious misconduct, the Tribunal went on to make the following orders against Mr Muto under s 81K of the Local Government Act:

1.Having found gross misconduct on the part of the respondent in proceeding B87/2012 we order that Councillor Milvan Muto of the council of the City of Greater Shepparton is disqualified as a councillor for four years from 1 July 2013 and that his office as councillor is vacated.
2.In relation to our finding of serious misconduct in relation to proceeding B82/2012, we order that Councillor Milvan Muto of the council of the City of Greater Shepparton is suspended from office as a councillor for a period of six months commencing on 1 July 2013 and that he is ineligible to hold the office of mayor or to chair a special committee of the council for a period of four years from 1 July 2013
(‘the orders’).

This Court stayed the orders pending the determination of this appeal on 10 October 2013.

The applications

Mr Muto now seeks leave to appeal, out of time, from each of the orders under s 148 of the VCAT Act. If leave be granted and the appeals allowed, he also seeks orders that both proceedings be remitted for hearing by a differently constituted tribunal pursuant to s 148(7)(c) of the VCAT Act. He has represented himself in the appeal.

The councillors opposed Mr Muto’s application for an extension of time to make his application for leave to appeal in the serious misconduct proceeding and resist his application for leave. Whilst they did not appear before the Court, they relied upon a 19 September 2013 affidavit of their solicitor, Ian Charles Ritchie, and written submissions.

The Secretary appeared to oppose the applications.

Background

Before referring to the reasons for the Tribunal’s orders,[5] I will state my findings as to some background and contextual facts.
[5]Secretary to the Department of Planning and Community Development v Muto (No 4) (Review and Regulation) [2013] VCAT 1180 (‘the Reasons’).

In about 2011, the Secretary had previously sought a finding of ‘gross misconduct’ against Mr Muto. The proceeding had resolved by agreement that there had been 13 instances of ‘misconduct’ by him as a councillor and that certain orders were appropriate.

‘Misconduct’ is defined under s 81A of the Local Government Act in this way:

misconduct by a Councillor means—
(a)conduct by a Councillor that is in breach of the Councillor Code of Conduct; or
(b)the failure of a Councillor to comply with a direction of a Councillor Conduct Panel where the Panel has not made a finding of misconduct against the Councillor;

Accordingly, on 4 March 2011 VCAT President, Ross J, found that Mr Muto had engaged in ‘misconduct’ under s 81K[6] and ordered that he be reprimanded for the misconduct, make a public apology in specified terms, and take a month’s leave of absence from 4 March 2011. Ross J also ordered that the orders be tabled at a March 2011 council meeting and recorded in the meeting minutes.
[6]See Secretary to the Department of Planning and Community Development v Muto (General) (Correction) [2011] VCAT 328.

Mr Muto gave an undertaking to VCAT to the effect that he would not perform any duties as a councillor from 5 April 2011 to 5 September 2011, other than attend monthly public council meetings and meetings of a ‘Shepp Show Me’ committee. He also made this public apology:

In 2010 proceedings were commenced against me by the Secretary to the Department of Local Government alleging gross misconduct.
Those proceedings against me have now been resolved. As part of that resolution the Secretary has agreed not to pursue the allegations of gross misconduct and I have admitted 13 counts of misconduct as set out in a further amended notice of allegations dated 3 March 2011. The remaining allegations from earlier notices have not been proceeded with.
I wish to publicly acknowledge any disruption and damage which my conduct has caused to the proper functioning of the Council and to its standing in the Greater Shepparton Community.
I apologise to all affected by my conduct, including my fellow Councillors, the CEO and general managers, other Council staff, and to the Greater Shepparton community. To the extent that any words I used which might be considered as racist, that was never my intention.[7]

[7]Ibid [11].

On 23 August 2011, noting Mr Muto’s impending return to the Council, the second defendant and then mayor, Cr Dobson, emailed him on behalf of the councillors. In the email, he suggested a mediation focussing on the Council’s Councillor Code of Conduct, in the interests of establishing a co-operative and professional relationship to benefit all ‘stakeholders’.

Mr Muto failed to respond.

Cr Dobson emailed him again on 28 November 2011, alleging further breaches of the Councillor Code of Conduct. This email noted that mediation was to be the first option under the Code to address councillor disputes. It stated that Mr Muto’s failure to respond had been treated as a rejection of the offer of mediation. Cr Dobson sought Mr Muto’s response to the breach allegations before asking the Council’s chief executive officer to appoint a CCP.

Mr Muto responded on the same day in this way:

I think you are all correct I have a healthy Disrespect for liars and cheats and for councilors (sic) That have their own agendas, especially Councilors (sic) that do not respect the wishes of their community. I think you would all be better of (sic) trying to do something good for our community rather than wasting time and money on a childish witch hunt. Grow up might be a better way of putting it.

On 8 December 2011, the councillors applied for the appointment of a CCP and sought its authority under s 81B of the Local Government Act to apply to VCAT for a finding of ‘serious misconduct’ against Mr Muto. They alleged ten instances of misconduct between 6 June 2011 and 29 November 2011.

On 7 March 2012, the CCP authorised the councillors to commence the serious misconduct proceeding.

On 13 April 2012, the Secretary commenced the gross misconduct proceeding.

On 4 June 2012 at the first directions hearing in both proceedings, counsel represented Mr Muto in the serious misconduct proceeding, but he represented himself in the gross misconduct proceeding. VCAT Deputy President Lambrick made orders under which :

(a) a hearing date of 27 August 2012 was fixed in the serious misconduct proceeding;

(b) a hearing date of 30 August 2012 was fixed in the gross misconduct proceeding;

(c) Mr Muto was directed to file witness statements by 10 July 2012 in the gross misconduct proceeding;

(d) Mr Muto was directed to file witness statements by 23 July 2012 in the serious misconduct proceeding;

(e) the councillors were directed to serve a tribunal book containing all the witness statements to be relied upon in the serious misconduct proceeding upon Mr Muto by 6 August 2012; and

(f) the Secretary was directed to serve a tribunal book on Mr Muto in the gross misconduct proceeding by 24 July 2012.

On 12 June 2012, in accordance with the orders, the Secretary filed and served witness statements of:

(a) Julie Salomon, acting chief executive officer of the council from July 2011, detailing complaints about Mr Muto’s behaviour at council meetings on 19 July 2011, 4 October 2011, 15 and 29 November 2011 and 7 December 2011, and alleging that he had sent inappropriate emails and made inappropriate telephone calls to her and other council officers between 19 September and 21 December 2011;

(b) Tina Zappala, executive assistant to the chief executive officer, alleging that Mr Muto had made an abusive call to Ms Salomon on 21 December 2011;

(c) Dean Rochford, the council’s General Manager of Sustainable Development, in relation to the alleged 21 December phone call to Ms Salomon and Mr Muto’s accusation of corruption on Mr Rochford’s part, at a 6 December 2011 meeting; and

(d) Councillor Cherie Crawford, making allegations about Mr Muto’s behaviour at and immediately after the 6 December meeting and after another meeting on 20 December 2011.

On 26 June 2012, the councillors filed witness statements in the serious misconduct proceeding of:

(a) Councillor Dobson, making allegations about Mr Muto’s behaviour at meetings and briefing sessions from 7 June 2011 to 6 December 2011, sending inappropriate email correspondence to councillors and council staff and the general public, and displaying signs on an electronic billboard at the Shepparton Hotel; and

(b) Councillors Michael Polan, Cherie Crawford, Chris Hazelman, Jenny Houlihan and Kevin Ryan, adopting Councillor Dobson’s statement.

Mr Muto failed to comply with the orders and did not file witness statements in either proceeding.

In those circumstances, the Secretary sought further directions hearings which were held on 11 July 2012. Mr Muto was self-represented in both matters. Another VCAT Senior Member extended the time for him to file his material in the gross misconduct proceeding to 10 August 2012 and changed the hearing date to 27 August 2012. In the serious misconduct proceeding, the Senior Member extended the time for Mr Muto file his material to 20 September 2012 and changed the hearing date to 12 November 2012.

Mr Muto failed to file his material in the gross misconduct proceeding by the extended date and, on 14 August 2012, there was a third telephone directions hearing in that proceeding. Mr Muto did not appear, having advised VCAT that he was ‘out of phone range for the week’. Nevertheless, an order was made extending the time for him to file his material to 20 August 2012.

On 16 August 2012, Mr John Barrett, a solicitor, commenced acting for Mr Muto in both proceedings.

On 21 August 2012, the County Court made an order under s 29(4) of the Local Government Act that Mr Muto take leave of absence from his office as councillor until a pending blackmail charge against him had been determined.[8]
[8]See Secretary to the Department of Planning and Community Development v Muto [2012] VCAT 1986. This leave of absence came to an end in November 2013 when the blackmail charge was withdrawn: see DPP v Milvan Muto (Unreported, County Court of Victoria, Judge Gucciardo, 22 May 2012) [8].

Mr Muto failed to comply with the order that he file his material in the gross misconduct proceeding by 10 August 2012.

On 27 August 2012, the scheduled date for the commencement of the hearing in the gross misconduct proceeding, Mr Barrett represented Mr Muto before Senior Member R Davis and Member McNamara. At Mr Muto’s request, the hearing date was adjourned to 14 November 2012 and the time for him to file and serve his material was extended to 30 October 2012.

On the same day, Senior Member R Davis vacated the 12 November 2012 hearing date in the serious misconduct proceeding. He listed the serious misconduct proceeding for directions on 11 September 2012.

At the directions hearing on 11 September 2012, Mr Muto was self-represented. A Senior Member ordered that the serious misconduct proceeding be set down for hearing not before mid-February 2013. Mr Muto was also given an extension of the time for filing of his witness statements to 21 December 2012.

On 24 September 2012, the solicitors, Lewis Janover, began to act for Mr Muto in both proceedings.

On 5 October 2012, Mr Muto filed an application for the striking out of the serious misconduct proceeding.

On 26 October 2012, he wrote to the Secretary seeking the adjournment of the hearing in the gross misconduct proceeding, in light of the criminal proceedings pending against him and his strike out application in the serious misconduct proceeding.

On 8 November 2012, the Secretary responded to Mr Muto. He refused to consent to the adjournment of the gross misconduct proceeding and indicated that if Mr Muto wished to have Ross J’s orders set aside, he should appeal to the Court of Appeal, rather than mount a collateral attack upon the orders in a strike out application.

On the next day, 9 November 2012, two things happened. The Secretary wrote to the parties to the serious misconduct proceeding, seeking their consent to his joinder as a party for the strike out argument, and, in chambers, a VCAT Senior Member refused Mr Muto’s written application for a stay of the gross misconduct proceeding, noting that he could make such an application at the 14 November 2012 hearing.

On 13 November 2012, Lewis Janover for Mr Muto filed witness statements in the gross misconduct proceeding of:

(a) Bruce Little, a private investigator, alleging that he had been with Mr Muto when the 21 December 2011 telephone conversation occurred and did not hear him swearing at the person to whom he was speaking; and

(b) Barry Smith, the then chairman of the ‘Shepp Show Me’ committee, stating that he was the person to whom Mr Muto had spoken on the telephone after leaving the meeting of 6 December 2011, and that he had not heard Mr Muto swear during that conversation.

On 14 November 2012, the gross misconduct proceeding was scheduled for hearing and the serious misconduct proceeding for directions. Mr Muto was represented by Ms Knowles of counsel before Senior Member Byard and Member McNamara. Mr Muto again applied for an adjournment of the gross misconduct proceeding until the blackmail charges against him had been finalised.

Senior Member Byard and Member McNamara refused Mr Muto’s adjournment application, but the gross misconduct proceeding hearing did not proceed because Ms Knowles became unavailable. The Tribunal adjourned both Mr Muto’s strikeout application and the Secretary’s application to be joined as a party to the serious misconduct proceeding to 12 December 2012.

The Tribunal heard the strike out application on 12 December 2012. Mr Muto was represented by Ms Knowles of counsel and Mr S Morris QC. The Secretary was joined as a party to the serious misconduct proceeding. Senior Member Byard and Member McNamara reserved their decision.

On 31 December 2012, Senior Member Byard and Member McNamara refused Mr Muto’s strike out application in the serious misconduct proceeding. They listed both proceedings for administrative mention on 19 February 2013 and for final directions on 18 March 2013.

At the 19 February 2013 administrative mention, the final hearing in each proceeding was adjourned by consent in anticipation of Mr Muto applying to the Court of Appeal for leave to appeal from Ross J’s 3 March 2011 orders.

Mr Muto filed the foreshadowed application for leave to appeal on 28 February 2013.

On 4 March 2013, by consent, both proceedings were again adjourned for administrative mention: this time on 18 April 2013.

On 12 April 2013, the day before the scheduled administrative mention, the Court of Appeal granted Mr Muto leave to appeal from the orders of Ross J and went on to dismiss the appeal, although it did set aside one order requiring Mr Muto to take one month’s leave of absence. [9]
[9]See Muto v Secretary to the Department of Planning and Community Development [2013] VSCA 85 (Nettle AP and Neave JA).

For the purposes of the administrative mention on 18 April 2013, the Secretary and the solicitors for the councillors wrote advising VCAT of their readiness to proceed and sought a hearing date for both proceedings.

On 18 April 2013, Lewis Janover wrote to VCAT, advising that Mr Muto was not ready to proceed because he was seeking advice both about the Court of Appeal’s decision and in relation to an issue in respect of indemnification for his costs. The Secretary did not receive a copy of Lewis Janover’s letter until 29 April 2013.

On 3 May 2013, in chambers, Senior Member Byard fixed both proceedings for hearing on an estimate of five days commencing on 6 June 2013. Remarks appended to the orders state that the matters should proceed without avoidable delay and note that Mr Muto would have ample time to pursue the costs indemnity issue under s 76 of the VCAT Act in the meantime.

On 9 May 2013, the Secretary received notice that Lewis Janover had ceased to act for Mr Muto.

On 21 May 2013, Mr Muto filed an application in the High Court for special leave to appeal from the Court of Appeal’s dismissal of his appeal from Ross J’s 3 March 2011 decision.

On 23 May 2013, Mr Muto told the Secretary that he had emailed the Tribunal, seeking an adjournment of the hearing of the proceedings pending the outcome of his High Court application. The Secretary sought another directions hearing and both matters were listed for directions on 31 May 2013.

On 25 May 2013, the Tribunal Book was served on Mr Muto personally.

On 31 May 2013, Mr Muto appeared in person at the directions hearing before Senior Member Byard and Member McNamara. He unsuccessfully applied for adjournment on various grounds, including his need to prepare his High Court special leave application. He then applied to the Tribunal for it to be reconstituted under s 108 of the VCAT Act, on the basis of the actual or apprehended bias of the members against him. His assertions included that the councillors knew Member McNamara who had been ‘hand-picked’ for the hearing

Mr Muto sought to have the Tribunal order the transcription of CD recordings which he maintained substantiated his bias allegations. Counsel for the Secretary submitted that the issue of the use of the tapes was a vexed one, as Mr Muto faced charges in the Magistrates’ Court and in the County Court relating, in part, to what police were alleging were illegally obtained recordings. The Tribunal should not permit Mr Muto to pursue the application without notice, as he had tried to do.[10] Senior Member Byard responded that, if the material were sought to be adduced, the issues would be dealt with when the case proceeded.[11]
[10]Transcript of Proceeding, Geoffrey Dobson & Ors v Milvan Muto; Secretary to the Department of Planning and Community Development (VCAT, B82/2012 and B87/2012, Senior Member Byard and Member McNamara, 31 May 2013) 56-57 (’Transcript of 31 May 2013’).
[11]Ibid 57.

When Senior Member Byard indicated that the hearing would proceed on Thursday 6 June, Mr Muto stated that he would make his reconstitution application on Monday 3 June and asserted that an adjournment of the 6 June date would be likely to be required as a result.

At the 31 May directions hearing, Mr Muto also told the Tribunal that he did not then have a car and that he travelled by train and could not attend on Thursday 6 June. Senior Member Byard indicated that the proceedings would start on that day. Subject to him being persuaded to alter his previous ruling, the gross misconduct matter would be heard first and relevant evidence in one matter need not be repeated. The fact that Mr Muto needed to attend a mention in a criminal matter on Tuesday 11 June was also discussed.

On 3 June 2013, at about 4.00pm, Mr Muto sent an email to the address: ‘[email protected]’, copied to the solicitors for the Secretary and the councillors. The email requested that the President of VCAT reconstitute the tribunal. It alleged bias on the part of Senior Member Byard and Member McNamara and referred to recordings in Mr Muto’s possession allegedly of councillors’ discussions of cases and evidence of interference with the selection of VCAT members. Mr Muto also stated that he was preparing his High Court appeal and had no time to prepare for the VCAT proceedings.[12]
[12]The email is reproduced in full at [157] below.

VCAT arranged for his Honour Judge Macnamara, Vice President and Acting President of VCAT, to hear Mr Muto’s reconstitution application at 2.00pm on 4 June 2013. Mr Muto informed his Honour’s associate by phone that Judge Macnamara was also biased against him. Judge Macnamara’s associate subsequently emailed Mr Muto at 12.10pm, noting their telephone conversation and indicating that the matter would remain listed for 6 June 2013.

On 6 June 2013, Mr Muto appeared at the hearing of both proceedings before Senior Member Byard and Member McNamara. He applied unsuccessfully for an adjournment and then for the Tribunal to be reconstituted. He then had the proceedings stood down so that he could apply to the VCAT President for the reconstitution. Acting President Judge Macnamara delegated the application to VCAT Vice-President Judge Jenkins.

Notes of the hearing before Judge Jenkins record her Honour stating that the hearing had been delegated to her. Mr Muto submitted that the solicitor, David Faram, had ‘steered’ the case because he was a good friend of the judge. Judge Jenkins stated that the Tribunal members had said that they did not know the lawyer. Mr Muto claimed that tapes in his possession evidenced that Mr Faram knew the judge and recorded conversations in which the participants were concerned about that fact becoming known.

Senior counsel for the Secretary objected that Mr Muto had stated that he did not know who made the tapes. He pointed out that Mr Muto had been served with the tapes before an interlocutory application on 27 August 2012 and yet had failed to make any allegations of bias against the Tribunal Members until 31 May 2013. The allegations of bias had been non-specific and on 6 June 2013 had been to the effect that the Members were corrupt.

Judge Jenkins dismissed the application, referred the matter back to the Tribunal for hearing and justified an award of costs against Mr Muto on the bases that:

(a) parties had been unnecessarily disadvantaged by the vexatious conduct of the application;

(b) there had been an unreasonable prolongation of the commencement of the substantive proceedings; and

(c) Mr Muto’s application for reconstitution of the Tribunal had no tenable basis in fact or law.

The Tribunal hearing proceeded and Mr Muto unsuccessfully applied for an order that the Council pay his costs and for its joinder to the proceedings. He then sought a short adjournment to obtain legal advice about obtaining a Supreme Court injunction. The Tribunal refused his application and, at about 3.30pm, Mr Muto left the hearing room, saying that he was going to apply to the Supreme Court for an injunction. Senior Member Byard informed him that the hearing would proceed in his absence unless or until the Tribunal was restrained from continuing.[13]
[13]Reasons [12]. I do not accept Mr Muto’s evidence insofar as he denies being so informed.

According to Mr Muto’s 9 September 2013 affidavit, he then went to the offices of Voitin Lawyers, where he was advised by a solicitor that the costs of an application for an injunction would be in the vicinity of $10,000. He left the solicitor’s office and went to see his son, and from there went back to Shepparton with some friends.

On 7 June 2013, the second day of the hearing, Mr Muto did not appear in person. After the hearing had commenced, however, Ms Cooper of counsel, instructed by Voitin Lawyers, appeared on his behalf to make a further adjournment application, on the basis that he had been taken to hospital. The hearing was stood down to allow Ms Cooper to seek evidence in support of the application.

Upon resumption of the hearing, Ms Cooper informed the Tribunal that in fact Mr Muto had been at the surgery of his general practitioner in Shepparton. She produced a medical certificate which Mr Muto deposes and I accept was from Dr Glen Russell, certifying him unfit to attend VCAT that day.[14] The letter stated that he was ‘quite agitated and hypertensive (bp134/108) and should not be on the roads’, that Dr Russell did not ‘feel that his mental state [was] well enough (sic) to represent himself adequately at present’ and that he should be fit to resume in July 2013.
[14]Affidavit of Milvan Muto, sworn 1 October 2013, [17].

The Tribunal refused the adjournment application and the hearing continued. Ms Cooper, who had only been briefed to make the application, left.

Later, after the Tribunal had adjourned for the day, the Victorian Government Solicitor’s Office emailed Mr Muto, advising that the next sitting date would be 12 June 2013, to accommodate his unavailability on 11 June 2013, and giving him an account of events at the hearing on 7 June 2013, including the unsuccessful adjournment application. The solicitor reported that Ms Salomon, Mr Rochfort, Ms Zappala and Ms Crawford had all given evidence and that it was expected that the Secretary would call Mr Polan and Ms Houlihan on Wednesday 12 June when the matter resumed.

Transcript of Tribunal proceeding

As a result of an accident, there is no recording and no transcript of the 6 and 7 June VCAT proceedings. Nevertheless, I accept the accuracy of the notes of those days of the hearing made by Daniel McCredden of the Victorian Government Solicitor’s Office which are exhibited to the affidavit of Matthew Carrazzo sworn on 18 November 2013.

Disputed events on 11 June 2013

Mr Muto maintains that, on 11 June 2013, under cover of an email sent on his behalf by Ms Andrea Sfetcopoulos of Mickali Properties Pty Ltd, he wrote to Mr Jim Nelms, a Principal Registrar at VCAT, making another adjournment application. He also says that he forwarded a medical certificate from Dr Glen Russell to the effect that he was not well enough to attend the continuing hearing.

Ultimately, notwithstanding the evidence he adduces of what appear to be copy printouts of email receipts, I am not satisfied that either any letter from Mr Muto or a letter from Dr Russell were received by VCAT. Mr Muto gave confusing evidence as to the manner in which he said the letters were actually sent. In so far as I understood it, his evidence appeared to be to the effect that Ms Sfetcopoulos had typed a letter and printed it out for his signature and had scanned both it and Dr Russell’s letter and transmitted them as part of an email.[15] I am not persuaded that the documents in evidence are printouts of emails to VCAT. As the Secretary points out, there is no reference to any attachment in any relevant document. Further, Mr Muto conceded that one of the exhibited documents relied upon to prove receipt appeared to be a composite of documents copied to form one page.
[15]Transcript of Proceeding, Muto v Secretary to the Department of Transport, Planning and Local Infrastructure & Ors (Supreme Court of Victoria, S CI 2013 04737, 11 September 2014) 155, (‘Transcript’).

There is no direct evidence that the documents ever came to the attention of the Tribunal. Nor did Mr Muto include the Victorian Government Solicitor’s Office, the Secretary’s solicitor, as a recipient of any email, despite having done so on previous occasions.[16]
[16]For example, Mr Muto sent emails to the Tribunal on 3 June 2013 (see [66] above) and 4 June 2013, each of which was copied to the email address of the Secretary’s solicitor.

It is also significant that Mr Muto failed to call Ms Sfetcopoulos, without explaining her absence. As she was the alleged author of an email and said to be the person responsible for producing and transmitting the documents in question, she might have explained what happened. Mr Muto is the party who would be expected to have called her. In those circumstances, I infer that her evidence would not have assisted him.[17]
[17]Jones v Dunkel (1959) 101 CLR 298; O’Donnell v Reichard [1975] VR 916, 921.

On 12 June 2013, the hearing continued in Mr Muto’s absence. It concluded that day and the Tribunal reserved its decision.

On 10 July 2013, the Tribunal made final orders and published its reasons.

The reasons

The reasons record the history of applications for adjournment and reconstitution of the Tribunal on 31 May, 6 June and 7 June.

As to the serious misconduct proceeding, they state the Tribunal’s conclusion that Ross J’s findings of misconduct[18] satisfied s 81A’s requirement of a previous misconduct finding and that Mr Muto’s subsequent behaviour contravened the Councillor Conduct Principles in s 76B and 76BA of the Local Government Act.
[18]See Secretary to the Department of Planning and Community Development v Muto (General) (Correction) [2011] VCAT 328.

In relation to the gross misconduct proceeding, the reasons state that the Tribunal considered Ross J’s decision relevant also to an assessment of Mr Muto’s subsequent behaviour and his fitness and propriety as a councillor. Similarly, the Tribunal took account of the agreed terms of the apology he had made. The Tribunal considered that earlier misconduct finding relevant as to whether there was any subsequent change or modification to Mr Muto’s behaviour. It was also relevant to a determination about his character and fitness and propriety in the context of allegations about his subsequent behaviour.

The Tribunal referred to pending charges of blackmail against Mr Muto and the fact that he had been on mandatory leave of absence under the County Court orders made on 21 August 2012. Notwithstanding that, he had been re-elected when his term had expired in November 2012. He had been unable to attend council meetings or participate in them as a councillor. Up to March 2013, he had attended council meetings as a member of the public.

The Tribunal summarised the councillors’ allegations it found made out as to Mr Muto’s behaviour in these terms in para [67] of the Reasons:

·Claims of illegality.
·Claims of the Council cheating and deceiving the electorate.
·Abusing Cr Ryan for being “a joke” and “the biggest monkey in the room”.
·Accusing the CEO (Mr Pearce) of being “a joke” and “jumping ship” and the Council of being “a Mafia”.
·Accusing the Council of spending money on “themselves” and engaging in “corruption”.
·Accusing Mr Parker, a Council employee, of being “a joke”.
·Telling the Mayor the job was “slightly above your head” and calling him an “albino” and the Councillors “gooses (sic)”.
·Accusing the Mayor of “lying” and engaging in “a conspiracy”.
·Accusing Cr Houlihan of lying and referring to Cr Hazelman as “chubby”, “obese” and “gutless”.
·Accusing the Mayor of being “a cheat, a dirty rotten cheat”, “a joke, a joke”, “cheating your ratepayers”, “cheating the community”.
·Accusing the Mayor that he “couldn’t give a shit” about confidentiality, proclaiming bullshit at a special Council meeting and accusing Council Officer Harriott of lying and the whole Council of being “cheats”, “a bunch of cheats”.
·Asserting the Council parking inspectors had “some mental health issues”.
·Emailing the Acting CEO, Ms Salomon, that she should “shut up” and asserting that “every time this council makes a shocking deal for the rate payers it is deemed confidential. We shall see about that mmm”.
·Asserting in an email the Council was “dysfunctional” and “disgraceful” and had “personal agendas”;
·Asserting in an email that the Councillors were “fools”;
·Asserting in an email that Council officers were “incompetent” and had “personal agendas”.
·Being glad to see a Council Officer “had to do some actual work today”.
·Placing various inappropriate signs on his electronic billboard on the Shepparton Hotel.

The Tribunal went on in para [68] to summarise the allegations it found proven in relation to the Secretary’s application as follows:

·On 6 December 2011 at a Council briefing Cr Muto referred to a development contribution being in Cr Crawford’s “backyard”.
·On 6 December 2011 at a Council briefing Cr Muto used a loud and aggressive tone toward Cr Crawford, resulting in her excusing herself.
·On 6 December 2011 at a Councillor Short Discussion Session Cr Muto alleged that the General Manager Sustainable Development (Mr Rochfort) was “corrupt”.
·On 6 December 2011 after an Ordinary Meeting of Council Cr Muto stated when Cr Crawford walked past “mole, slut” and “Cherie Crawford, she’s nothing but a fucking slut”.
·On 20 December 2011, after a Council Meeting, Cr Muto called Cr Crawford a “mole” as she left the Council offices.
·On 21 December Cr Muto sent a series of text messages to the Acting CEO (Ms Salomon) making demands, complaints and abuse.
·On 21 December Cr Muto telephoned the Acting CEO (Ms Salomon) and used a series of expletives and threatened her.
·On 21 December Cr Muto sent the Acting CEO (Ms Salomon) a further text message referring to a “nice sign at the Shepp hotel”.

In paragraph [81], the Tribunal found Mr Muto responsible for the following signs on an electronic billboard attached to the Shepparton Hotel:

18 April 2011
“Dear old mate, Mayor Dobson how about some
well paid jobs for some of
your mates. SHMUCK”.

“Dear Mayor Dobson
You can shift from one diversion to the
next, but you can’t divert from the truth,
GUILTY. SHMUCK”.

“SHEPP NEWS LIES
MAYOR DOBSON NOT CLEARED
MAYOR DOBSON GUILTY
AS CHARGED”.

29 August 2011
“Muto
Defies
the goose”.

“Dear Ratepayers
selection of right CEO is imperative
for prosperity of our Municipality.
Disregard the fools”.

5 September 2011
“Dear Councillors, we have
60,000 people to worry about in
Greater Shepparton not just me.
Wake up to yourselves! MM”.

7 December 2011
“Ladies and Gentlemen
Like we told you
Out with the donkey
In with the shonkey”.

The Tribunal said this:

63.We accept that Councillor Muto is responsible for the display and changing messages on these signs. Not only does he own the hotel and the sign equipment, but he has used other methods of communication to draw attention to the signs apparently to ensure that the victims should be aware of them.

Having accepted the evidence of the witnesses complaining of Mr Muto’s behaviour, the Tribunal went on to say this about Mr Muto’s behaviour:

76.This evidence discloses the characteristic behaviour of Councillor Muto as being repeated and habitually aggressive, threatening and intimidatory, including threats of personal violence. … His behaviour and language is habitually abusive, insulting, disparaging, disruptive of meetings … disrespectful and frequently inclusive of unjustified allegations of corruption or incapacity by councillors and professional staff. His behaviour, as disclosed in the evidence, is consistent with him habitually deriving enjoyment from shocking people by making extravagant and untrue statements and accusations in public.
77.Although there was a brief improvement upon his return to councillor duties following the constraints imposed by Ross J, this quickly deteriorated so that his previous behaviour was resumed and became worse. Attempts to conciliate him or counsel him orally or in written form particularly by the then mayor or the acting chief executive officer were treated with disdain.
78.The misuse and wider distribution of private Council emails led to constraints being imposed (after warnings) on his ability to use council communication equipment for such purposes. …
79.Councillor Muto refused to respect confidentiality. When confidential papers were circulated for temporary use by councillors for purposes of a closed meeting of the council, Councillor Muto refused to hand back such papers, though all other councillors complied, and took them away retaining them in his own possession.
…
82.The behaviour of Councillor Muto became an increasing burden on those subjected to it and handicapped the efficient running of the Council, its administration and its formal and informal meetings. …
83.Council staff became frightened, refused to attend briefing sessions or were excused attendance at briefing sessions because of the behaviour of Councillor Muto. Complaints were made through the relevant trade unions. Mr Muto was aggressively abusive about the way that matter was dealt with. Council officers and staff became timid and inhibited in relation to giving frank information and advice when Councillor Muto was present.
84.He, his conduct, and the Council itself became subject to public notoriety in the Shepparton community and in local government circles in the wider Victorian community. A lot of time was wasted and specifically time and money were wasted on seeking legal advice that would otherwise have been unnecessary. The acting chief executive officer became generally concerned about the occupational, health and safety implications of the behaviour of Councillor Muto towards staff. We accept that that concern was both genuine and justified.
85.We accept that his presence and behaviour was seriously disruptive and partially crippling of (sic) the attempts of the council, its councillors, staff and officers in carrying out the municipal business of the City of Greater Shepparton.

The Tribunal recognised the significance of local democracy and the seriousness of interference with the rights of elected councillors. But the ‘heavy and compelling evidence’ led it to conclude that Mr Muto was not a fit and proper person to hold the office of councillor. In light of his history, there was no reasonable prospect of change in his attitude or behaviour.

The Tribunal concluded that Mr Muto had also engaged in serious misconduct by repeatedly breaching his obligations under s 76B(a) to act with integrity, s 76BA(b) to act honestly, s 76BA(c) to treat all persons with respect, s 76BA(f) to act lawfully and in accordance with the trust placed in him as an elected representative and s 76BA(g) to support and promote the relevant councillor conduct principles to secure and preserve public confidence in the office of councillor.

Recognising that the proposed disqualification would prevent Mr Muto from standing at the next municipal elections, the Tribunal nevertheless concluded that that was appropriate.

The Tribunal made the orders it did in the serious misconduct proceeding under s 81K(3), suspending Mr Muto from office for six months and ordering him to be ineligible to hold the office of Mayor or chair a special committee for four years, in case its orders in the gross misconduct proceeding should be ineffective.

The Tribunal’s decision was not the last fact relevant to this application under s 148 of the VCAT Act because Mr Muto sought an extension of time in which to make his application. I will now set out my findings as to subsequent events

Factual findings as to subsequent events

On 17 July 2013, Mr Muto applied to VCAT for the reopening of the orders pursuant to s 120 of the VCAT Act, on the basis that he had not appeared at the hearing.

The application was heard on 26 July 2013 by her Honour Judge Davis, Vice President, and Member Bensz. Mr Muto appeared in person. The Tribunal reserved its decision.

On 9 August 2013, Mr Muto applied under ss 50, 118 and 149 of the VCAT Act for a stay of the Tribunal’s final orders, pending the outcome of his 26 July 2013 application. He represented himself. His Honour Judge Bowman, Vice President, and Member Hewitt granted a 21 day stay with the option of applying for its extension if the decision in the s 120 application had not been handed down.

On 15 August 2013, Judge Davis and Member Bensz dismissed Mr Muto’s application premised upon his non-appearance before the Tribunal. They concluded that he had appeared at the hearing and ordered costs against him.[19]
[19]See Secretary to the Department of Planning and Community Development v Mr Muto (No 5) (Review and Regulation) [2013] VCAT 1378.

Between 15 and 26 August 2013, Mr Muto made various applications for the stay or re-opening of the Tribunal’s orders.

On 26 August 2013, his Honour Judge Bowman and Senior Member Hewett heard the application for a further stay. Mr Muto, who appeared in person, also made an application for leave to make a second application for rehearing pursuant to s 120 of the VCAT Act. The Tribunal reserved its decision and granted a further stay for 14 days, pending the handing down of that decision.

On 11 September 2013, Mr Muto filed his application for leave to appeal in this proceeding.

On 13 September 2013, Judge Bowman and Senior Member Hewett dismissed Mr Muto’s applications for a further stay and for a rehearing.[20]
[20]See Muto v Secretary to the Department of Planning and Community Development (Review and Regulation) [2013] VCAT 1533.

On 10 October 2013, an Associate Justice of this Court ordered that the 10 July 2013 orders be stayed until ‘at least, the hearing and determination of the application for leave to appeal out of time, and at the latest, the hearing and determination of the appeal’.

Grounds of appeal

Mr Muto sets out the questions of law he raises in the appeals in his ‘Draft Notice of Appeal’ dated 11 September 2013.

He states the questions of law in relation to both the serious misconduct proceeding and the gross misconduct proceeding by raising issues in these terms:

1. Denial of natural justice s 98 VCAT Act 1998.
2. Tribunal did not act fairly contrary to s 97 VCAT Act 1998.
3. s 124 VCAT Act 1998, has not been applied properly.
4. s 108 VCAT Act 1998, has not been applied properly.
5. s 118 VCAT Act 1998, has not been applied properly.
6. s 102 VCAT Act 1998, has not been applied properly.
7. s 99 VCAT Act 1998, has not been applied properly.
8. s 82 VCAT Act 1998, has been overlooked.
9. s 62 VCAT Act 1998, has been overlooked.
10. Penalty manifestly excessive.
11. s 76 Local Government Act 1989 has been overlooked.
12.Orders made for the protection for a non-party to the proceedings contrary to common law.

13. Orders of the Tribunal were based on falsehoods.
14. Recordings of the proceedings were denied to the plaintiff.

He adds these additional matters in respect of the gross misconduct proceeding:

15.On the days the Orders were made the Applicant in B87/2012 did not exist.
16.The concept of entirety relied upon by the Members is a question of law.

He also raises the following issues as further questions of law in relation to the serious misconduct proceeding:

15.Orders made under s 81K(3), are contrary to the Local Government Act 1989.

16. Proceedings in B82/2012 are contrary to Councillor Code of Conduct.
17. On the day of the Orders the Applicant in B82/2012 did not exist.

The grounds of appeal which follow the statement of the questions are contained in some 64 paragraphs which need not be set out in full here. I will deal with the issues they raise when discussing the questions themselves.

Evidence

Mr Muto relies upon:

(a) his affidavits sworn on 9 September 2013, 1 October 2013 and 2 November 2013;

(b) transcript of a VCAT directions hearing on 31 May 2013;

(c) a print out of an email dated 13 January 2012;

(d) a document dated 19 July 2013; and

(e) his oral evidence.

Mr Muto’s affidavits include inadmissible statements of opinion and submissions. As he is self-represented, the Secretary properly treated this material as a statement of submissions and I do the same.

The Secretary relies upon the following affidavits (or their exhibits, where the affidavit material is objectionable):

(a) Alicia Mary Robson, solicitor for the Secretary, sworn on 19 September 2013 and 14 February 2014;

(b) Matthew Carrazzo, solicitor of the Secretary, sworn 18 November 2013;

(c) Ian Charles Ritchie, the councillors’ solicitor, sworn on 19 September 2013; and

(d) Ross David Millard, Acting Chief Municipal Inspector of the Local Government Investigations and Compliance Inspectorate, sworn on 28 February 2014 and 8 April 2014

as well as upon the evidence adduced by Mr Muto.

Extension of time

Mr Muto first successfully sought an extension of the 28 day time limit for the making of an application for leave to appeal imposed by s 148(2) of the VCAT Act. These are my reasons for granting the extension.

At the 9 August 2013 hearing of his first stay application, the defendants conceded that time for the filing of his application for leave to appeal commenced had to run on 16 July 2013: being the latest day upon which he would have received the Tribunal’s orders.[21] The Secretary adhered to that concession before me.[22] The agreed time for filing the application therefore expired on 13 August 2013.
[21]Ibid [17].
[22]Secretary to the Department of Transport, Planning and Local Infrastructure, ‘Amended Submissions on behalf of the Defendants’, submission in Muto v Secretary to the Department of Transport, Planning and Local Infrastructure & Ors, S CI 2013 04737, 10 September 2014, [8].

Mr Muto did not persuade me either that time did not commence to run until the 14-day stay granted by Judge Bowman had expired on 13 September 2013 or that the issue of extension of time had been ‘wiped out’ because Daly AsJ’s order fixing the application for leave to appeal and appeal for hearing did not specifically refer to the extension of time. I also rejected his argument that the orders were not ‘final’ because of any application for their amendment under s 119 of the VCAT Act. I note that Mr Muto relied in this regard upon a copy letter dated 16 July 2013 from the VGSO to the VCAT Registry drawing attention to ‘a minor slip’ in the appearances as recorded in the Tribunal’s reasons.

It was not disputed that the purpose of the Court’s discretion to extend time is to do justice between the parties.[23] The relevant factors to consider include the length of the delay, the reason for it, whether there is an arguable case and the extent of any prejudice to the respondent.[24] It is also relevant to consider whether the delay was intentional, or the result of a bona fide mistake.[25]
[23]See, eg, Hughes v National Trustees Executors & Agency Co [1978] VR 257.
[24]Slaveski v State of Victoria (Unreported, Victorian Court of Appeal, Nettle and Harper JJA, 25 November 2011), [15].
[25]Jackamarra v Krakouer (1998) 195 CLR 516, 543 [68] (Kirby J).

Mr Muto filed his application on 11 September 2013, a little less than a month out of time: as it had been agreed. He submitted that the delay in filing his application was not considerable and that the reason for the delay was that he had been unwell. He relied on medical certificates.[26] He deposed, too, that he had believed that an effect of Judge Bowman’s grant of a 14 day stay was to freeze the time for the making of any application for leave to appeal.
[26]See Exhibits 5-8 to Affidavit of Milvan Muto, sworn 2 November 2013.

The Secretary submitted that there was no satisfactory reason for the delay and that Mr Muto had apparently made a conscious decision not to commence the proceeding in time. He had received a copy of the orders on 15 July 2013 and had understood that he had 28 days in which to apply for leave to appeal.[27] The filing of the application out of time was to be seen against the history of delays in the VCAT proceedings. Counsel for the Secretary further submitted that an extension of time would potentially occasion severe prejudice to the defendants, due to the nature of the proceedings and the stress and disruption that might be caused to the councillors in particular. Finally, the Secretary argued that Mr Muto had not demonstrated an arguable case.
[27]See Exhibit ICR-1 to the Affidavit of Ian Ritchie, sworn 19 September 2013, an email from Mr Muto dated 5 August 2013.

Having taken into account all the written and oral submissions, I was satisfied that I should exercise my power under s 148(5) to extend time.

I accept that there was some uncertainty on Mr Muto’s part as to the length of the relevant period. The application was also made only about one month out of time, which is not a long delay. Any prejudice to the defendants of the kind described by counsel for the Secretary would have been suffered equally had the application been made within the 28-day limit. Such prejudice results from the combination of circumstances, not from the delay itself. Further, the defendants were aware at least as at 30 August 2013 that Mr Muto believed that there were issues with regard to the period of time he had had to make his application.[28]
[28]See Transcript of Proceeding, Geoffrey Dobson and Ors and Secretary to the Department of Planning and Community Development v Milvan Muto (VCAT, Judge Bowman, Vice President, and Senior Member Hewet, 30 August 2013).

Whilst the application for leave to appeal had only very limited prospects of success, I took the view that some of Mr Muto’s points were arguable and that, in all the circumstances, I should exercise my discretion to grant an extension of the time for the leave application.

Leave to appeal

Every application for leave depends on the justice of the particular case and the decision is discretionary.[29] Whilst the discretion cannot be fettered, the following principles nevertheless apply to applications under s 148:

(1)the applicant must identify a question of law arising out of the decision;
(2)the question must be such that if VCAT erred in respect of it, the applicant’s claim would be advanced;
(3)the applicant must show that the VCAT decision is attended by sufficient doubt to justify the grant of leave or that there is a real or significant argument to be put on the question of law; and
(4)it must be just to all parties to grant leave.[30]

[29]Myers v Medical Practitioners’ Board (Vic) [2007] VSCA 163, [27] (Warren CJ (Chernov JA and Bell AJA agreeing).

[30]Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331, 335-6 (Phillips JA, Tadgell and Batt JJA agreeing).

I agree with the Secretary that none of Mr Muto’s proposed grounds of appeal gives rise to sufficient doubt as to the validity of the VCAT orders to justify a grant of leave.

I will now turn to those grounds

Proposed grounds 1 and 2 – denial of natural justice and unfairness by failure to adjourn and bias, and proposed ground 6 - denial of opportunity to give evidence

It is convenient to deal with these proposed grounds together.

Mr Muto complains that he was denied procedural fairness or natural justice by the Tribunal’s failure to adjourn the hearings on 6, 7 or 11 June 2013 and to give him the opportunity to adduce evidence and examine witnesses. It is the refusal of the adjournment which essentially underpins his arguments that he was denied these entitlements.

There is no doubt that the Tribunal was required to act fairly and in accordance with the substantial merits of the case under s 97 of the VCAT Act, to comply with the rules of natural justice under s 98 and to give Mr Muto a reasonable opportunity to adduce evidence and examine, cross-examine and re-examine witnesses under s 102.

The content of the rules of natural justice may vary according to the circumstances of the particular case.[31] As the Secretary submits, the Court must consider the realities of the situation when determining what fairness requires in those circumstances.[32]
[31]Public Service Board of New South Wales v Osmond (1986) 159 CLR 656, 676 (Deane J).
[32]Taha v Broadmeadows Magistrates’ Court [2011] VSC 642 [72] (Emerton J).

In this case, the content of the rules of natural justice and the requirements of fairness must be considered in light of:

(a)the long procedural history of the VCAT proceedings;
(b)the numerous previous adjournment applications by Mr Muto;
(c)the three previous adjournments of the hearing; and
(d)the fact that Mr Muto had been unrepresented at times.

I am satisfied that Mr Muto voluntarily withdrew from the hearing on 6 June after failing to obtain an adjournment or reconstitution of the Tribunal. He was aware that the proceedings would continue and indeed had indicated his intention to seek an injunction restraining the Tribunal from continuing.

The obligations of natural justice did not compel the Tribunal to ensure that he took best advantage of the opportunity to present his case.[33]
[33]See Sullivan v Department of Transport (1978) 20 ALR 323, 343 (Deane J) (Fisher J agreeing); Di Simone v Commissioner of Taxation [2009] FCAFC 181, [15] (Sundberg, Stone and Edmonds JJ).

The granting of an adjournment is a discretionary remedy. No one set of considerations is determinative and the decision-maker has some latitude in relation to the decision. In Aon Risk Services Australia Ltd v Australian National University,[34] the High Court held that:

there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system.[35]

[34](2009) 239 CLR 175.

[35]Ibid 182 [5] (French CJ).

In Macdiggers Pty Ltd v Maria Dickinson & Peter Dickinson,[36] Warren CJ said this in a case where a litigant in person had been denied an adjournment:

Justice is the paramount consideration. Various factors will weigh in the determination of what is just in the circumstances, including of course ‘the litigation strain’ to all involved, the prejudice to the applicant if refused, the prejudice to the respondent if granted, and the appropriateness of a costs order. The decision whether to exercise the discretion to grant and adjournment is not a situation to punish an applicant for any mistake or otherwise but to ensure a fair and reasonable hearing.[37]

[36][2008] VSC 576.

[37]Ibid [65] (citations omitted), citing Howath v Adey [1996] 2 VR 535, 544 (Winneke P); Ketteman v Hansel Properties [1987] AC 189, 220 (Lord Griffiths), Queensland v J L Holdings (1997) 187 CLR 146, 155 (Dawson, Gaudron, McHugh JJ).

As the Secretary points out, by the time Mr Muto was requesting adjournments in May and June 2013, he had had the benefit of legal representation for the preparation of his case from early August 2012 to early May 2013, including at the time when witness statements had been filed. He had also had more than three weeks since his solicitors had withdrawn to prepare to represent himself in a case where he was the principal witness and had known all the allegations against him since April 2012.

I agree with the Secretary that the medical evidence Mr Muto relied upon on 7 June 2013 was not such that it could be said that the Tribunal had denied him natural justice in refusing an adjournment on the basis of it. Mr Muto had not referred to illness when he left the hearing on 6 June 2013 or beforehand. The letter upon which counsel relied on 7 June 2013, from the general practitioner, referred to him being ‘quite agitated and hypertensive’ and stated that he ‘should not be on the roads’. As I have said,[38] Mr Muto’s own statement to the Tribunal had been to the effect that he did not have a car at the time and travelled by train to Melbourne. Whilst the doctor said that he did not ‘feel that his mental state is well enough to represent himself adequately at present’, no further detail had been provided and there was no other evidence of a psychological or psychiatric opinion.
[38]See [65] above.

Significantly, there was a strong public interest in the proceedings against Mr Muto continuing. The reasons I have quoted state the Tribunal’s findings that the proper operations of the Council were being hampered by Mr Muto’s activities.[39] Council employees and others involved in local government were being deleteriously affected and the allegations related to a lengthy period of misconduct.
[39]See [93] above.

Nor was it submitted to the Tribunal that an adjournment was justified on the basis that evidence crucial to Mr Muto’s case would shortly be available to him.[40]
[40]Cf Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 .

In all the circumstances, Mr Muto has failed to establish the requisite arguable case that he was denied natural justice or procedural fairness when he was refused adjournments on 31 May or 6 June 2013 or was denied the opportunity to present evidence or cross-examine the witnesses called by the Secretary or the councillors.

As far as the continuation of the proceeding on 11 and 12 June is concerned, I am not satisfied that any application for an adjournment or material Mr Muto sought to rely upon was brought to the attention of the Tribunal. I note in this regard too that he did not appear, represented or unrepresented, to seek the adjournment or even attempt to bring relevant material and any adjournment application to the attention of the solicitors for the Secretary or the councillors.

In the circumstances, he has not made out a real or significant argument to be put on the questions of law relating to the Tribunal’s failure to adjourn the hearings identified in proposed grounds 1, 2 and 6.

Bias

Mr Muto also alleges that the Tribunal was actually biased against him or that there would have been a reasonable apprehension of bias on its part. This was the basis for his argument for it to be reconstituted.

He relies upon the evidence of the Tribunal refusing to have regard to evidence he sought to adduce of that alleged bias by way of recordings of unidentified persons having conversation, the provenance of which he could not demonstrate. He submitted to the Tribunal that the alleged conversation referred to friendship between Mr Faram and a Tribunal member. The evidence is to the effect that the members had denied knowing the solicitor.[41] Mr Muto also submitted that it had been suggested in the conversation that Member McNamara had been ‘hand-picked’ to hear the cases. The Tribunal members denied any actual bias and concluded that there were no grounds for apprehended bias.
[41]Notes of the hearing before Judge Jenkins in Exhibit ‘MPC-1’ to the Affidavit of Matthew Carrazzo, sworn on 18 November 2013, record her Honour saying that the Tribunal members had repeatedly denied knowing Mr Faram.

Mr Muto concedes that police had provided him with the tapes upon which he sought to rely to establish bias between the end of May and 1 July of the previous year: 2012.[42] The Tribunal had been constituted by Senior Member Byard and Member McNamara in the gross misconduct proceeding at least since the first hearing date in that matter on 27 August 2012. At that time, Mr Muto had been represented by Mr Barrett and had obtained an adjournment to extend the time for him to file his affidavit material in response to the Secretary’s application and, despite having received the tapes, he had not made a reconstitution application on the grounds of bias or at all.
[42]Transcript, 234.

As the Secretary submits, this evidence from Mr Muto falls well short of establishing either actual bias or that there might be a reasonable apprehension that the Tribunal Members were biased. It is made up of his own unsubstantiated assertions about evidence considered inadmissible. Mr Muto has failed to demonstrate any real or significant argument in support of any ground based on bias or apprehended bias.

Proposed ground 3 – Tribunal’s failure to apply s 124 of the VCAT Act and make declaration as to costs

Mr Muto argues that the Tribunal erred by failing to apply s 124 of the VCAT Act properly by refusing to declare before the hearing that the Council should pay the costs of the proceedings under cl 46F of Schedule 1 to that act.

Section 124 of the VCAT Act gives the Tribunal the power to make a declaration. Clause 46F was in these terms:

46F Costs
(1)Despite section 109, the Council must bear the costs of the proceedings if—
(a)the Council is a party to a proceeding referred to VCAT under section 81J(1)(b) of the Local Government Act 1989; or
(b)the Council applies to VCAT for review under section 81Q(2) of the Local Government Act 1989.

(2)The Council is not required to bear the costs of the proceedings under subclause (1) if VCAT otherwise orders.

Not only was the Council not a party to the proceeding but the Tribunal properly declined to make any declaration with respect to costs before the hearing.

As the Secretary contends, there was no error in the Tribunal’s approach, bearing in mind s 109, which makes detailed provision as to the power to make orders relating to costs which include it having regard to the conduct of the proceeding itself.[43]
[43]See s 109(3)(a).

There is no substance to Mr Muto’s argument that the Council, a non-party, was liable for costs under sub-cl 46F(2) because the Tribunal had not ordered otherwise. He has not established that there is real or significant argument in relation to this proposed ground of appeal.

Proposed ground 4 – the failure to reconstitute the Tribunal

Mr Muto argues that the Tribunal failed to accord him procedural fairness by refusing his reconstitution application and by failing to allow him sufficient time to make ‘a proper application’ for reconstitution, on the grounds of its actual or apprehended bias, to the President of VCAT.

I will first deal with the argument that he was not allowed sufficient time to make his reconstitution argument.

Preparation time

Mr Muto says that he was only given ‘one hour over lunch’ to prepare his application which was ultimately heard on the first day of the hearing, 6 June 2013, by Vice-President Judge Jenkins. Given the facts I have found as to the chronology of events, I am not persuaded that he has demonstrated a real or substantial argument in this regard. Police had supplied him with the CDs upon which he sought to rely between May and 1 July of the previous year: 2012. He had appeared before the Tribunal subsequently, as I have said, and had made no objection to its constitution.

Further, by the time of the application on 6 June 2013, he had already made an application for the Tribunal to reconstitute itself at the 31 May 2013 directions hearing. He had based the application on assertions of bias, alleging friendship between Senior Member Byard and the councillors’ solicitor, Mr Faram, and submitting that Mr McNamara had been specifically chosen to hear the matter. Each of the Tribunal members had denied that they were actually or apparently biased at that directions hearing.[44]
[44]Transcript of 31 May 2013, 62-63.

When Senior Member Byard indicated on 31 May that the hearing would proceed on Thursday 6 June, Mr Muto had informed the Tribunal that he would make his reconstitution application on Monday 3 June and asserted that an adjournment of the 6 June date would be likely to be required as a result.

On 3 June 2013, Mr Muto had emailed VCAT, seeking reconstitution of the Tribunal, referring to the recordings he had tried to rely upon on 31 May. He sets out the basis for his application in this email, sent from his iPhone to: ‘[email protected]’ at 5.21pm (copying it to the Secretary’s solicitor, Alicia Robson, at the VGSO):

My name is Cr Milvan Muto of 111 Maude street Shepparton 3630.

I would like to make a request for the president of vcat to reconstitute the tribunal in the current two cases against me, namely B82/2012 and B87/2012 under section 108 of the vcat act 1989.

The tribunal has in its possession CD recordings of the Shepparton city councillors discussing these cases and providing evidence of interference with the due process of selecting the members of the tribunal, specifically one councillor being told by someone very high up who would sit as the local government member with at least 5 years (sic) experience well before he Mr McNamara was legally selected and evidence that the person who would sit in judgment of the case B82/2012 is a very good friend of the applicants (sic) solicitor namely David Faram. It is also alleged that senior member Byard has already shown and demonstrated a bias towards me, he has clearly stated that the delays in this case are my doing when they are clearly not, he has stated that I’m trying to renege on my mediation outcomes and he has only just recently called me a naughty councillor, at a directions hearing on Friday the 31 st of May I made an application to have an adjournment because I have appealed the orders of the court of appeal to the High Court of Australia, member Byard said at that hearing that I did not have a hope in hell or words to that effect of being heard on the matter, I find it amusing that a vcat member can pre empt (sic) what the High Court of Australia will find or order. I asked the tribunal on the 31st of May to have the CD’s (sic) in their possession transcribed so that the evidence I am talking about can be considered, member Byard refused that application as well. At an (sic) directions hearing on the 11th of July 2012 senior member Davis was sitting and he ruled that he would sit on this case with Mr Mcnamara and then the friend Byard just seemed to appear, I am now in a position of representing my self because the council has refused my indemnity under section 76 of the local government act 1989 without reason and they refused to fund my legal representation under 46f of schedule 1 of the vcat act 1998.

In my view senior member Byard has shown bias towards me all the way through the process and I am not confident of a fair hearing, I also think that a normal member of the community would not be confident of a fair hearing if they were aware of what had transpired. This is a rather urgent matter as I am in the middle of preparing my High Court submissions which are due by the 18th of June 2012 and I have no time to try and prepare for two cases against two separate applicants that will start on the 6th of June 2012. It is my respectful submission that this situation is not in any way fair on me, and shows just how bias (sic) the current members are by putting me in this position. Please keep in mind that the appeal to the High Court if successful would change the terrain of the current matters significantly, one would fall away completely and the other would be considerably weakened if not fatally wounded.

Yours faithfully

Cr Milvan Muto

VCAT responded by arranging for the application to be heard at 2.00 pm on 4 June 2013 by VCAT Acting President Judge Macnamara. On the morning of 4 June, however, during a telephone conversation with Judge Macnamara’s associate, Mr Muto had objected to his Honour hearing the application, alleging bias on his part as well. As a result, the associate had advised him by email at 12.10 pm that day that the matter would remain listed for 6 June 2013.

In all the circumstances, Mr Muto has failed to establish a real or significant argument supporting a finding that he was denied natural justice or procedural fairness by being given insufficient time to prepare his reconstitution argument, even though he may have been allowed only an hour of preparation time on the first day of the hearing.

Delegation

Mr Muto now further asserts that Acting President Macnamara had attempted to delegate his power to hear the reconstitution application to Vice-President Judge Jenkins without doing so in writing as required by s 33(3) of the VCAT Act.

As at 6 June 2013, s 108 of the VCAT Act relevantly provided:

108 Reconstitution of Tribunal
(1)At any time during the hearing of a proceeding a party may apply to the Tribunal requesting that it be reconstituted for the purposes of the proceeding.

…
(3) On application under subsection (1)…—
(a)the Tribunal, as presently constituted, after allowing the parties to make submissions, may decide that it should be reconstituted; and

(b) if so, the President must reconstitute the Tribunal.
(4)If the Tribunal rejects an application under subsection (1) for reconstitution, a party may make a request to the President that the Tribunal be reconstituted.
(5)If a request is made to the President under subsection (4), the President may allow or reject the request for reconstitution, with or without allowing the parties to make written or oral submissions.

Section 33 was in these terms:

33 Delegation by President and Vice Presidents
(1)The President may delegate to any member or class of members or to the principal registrar any function of the President under this Act, the rules or an enabling enactment, other than this power of delegation.
(2)A Vice President may delegate to any member or class of members or to the principal registrar any function of the Vice President under this Act, the rules or an enabling enactment, other than this power of delegation.

(3) A delegation under this section must be in writing.

Mr Muto’s request for reconstitution on 6 June 2013 was first heard and refused by Senior Member Byard and Member McNamara. He then made a request to the President that the Tribunal be reconstituted, pursuant to sub-s 108(5). The Acting President, Judge Macnamara, delegated his function under sub-s (5) to Judge Jenkins.

Assuming both that the requirement was a mandatory one and that the validity of the delegation of power to Vice-President Judge Jenkins could be a ground for challenging the Tribunal’s impugned 10 July orders, Mr Muto has failed to persuade me that there was the alleged jurisdictional error by the Vice-President. He failed to adduce any evidence which might have established the factual basis for his challenge to her Honour’s decision, namely that the delegation was not made in writing as required by s 33(3). His evidence in that regard ‘at its highest, was inconclusive’ like that before Kyrou J in Johnson v Director of Consumer Affairs.[45] Accordingly, the presumption of regularity would fill the evidentiary gap.[46]
[45][2011] VSC 595, [69].
[46]Ibid; see also Mornington Peninsula Shire Council v Payne [2001] VSC 337 [26] (Balmford J).

Mr Muto has failed to advance a real or significant argument that the Acting President failed to validly delegate his reconstitution power to Vice-President Judge Jenkins.

Proposed ground 5 – Tribunal invalidly backdated commencement date for orders

The Secretary concedes that the Tribunal did err by stating the commencement date of the order as 1 July 2013. The order was made on 10 July. It is common ground that it could only take effect from that date or subsequently under s 118 of the VCAT Act.

The error, however, will not vitiate the Tribunal’s decision. It is abundantly clear that it is not material, as the Tribunal would have arrived at the same decision even though the period of disqualifications and ineligibility imposed might well have been some nine days longer.[47]
[47]See Kozanoglu v The Pharmacy Board of Australia [2012] VSCA 295, [121] and [124] (Weinberg and Harper JJA and Hargrave AJA).

Proposed ground 7 – Tribunal failed to give notice of hearing

Mr Muto complains that the Tribunal had no jurisdiction to conduct the hearing on 6 June 2013 because he was not given a notice of hearing in accordance with the rules under s 99 of the VCAT Act.

Section 99 of the VCAT Act is in these terms:

Notice of hearings
(1)The principal registrar must give notice, in accordance with the rules, of the time and place for the hearing of a proceeding to—
(a) each party to the proceeding; and
(b)each other person entitled to notice of the proceeding or hearing under this Act, the enabling enactment or the rules; and
(c)any other person that the Tribunal directs be given notice of the hearing.

(2)If a person, including a party, to whom notice has been given in accordance with the rules fails to attend, the hearing may be held in the absence of that person.

Rule 4.13 of the Victorian Civil and Administrative Rules 2008 requires the principal registrar to give notice of the time and place for the hearing of a proceeding in writing and in accordance with any other requirement of those rules. The Tribunal has a general power to dispense with compliance with any of the requirements of the rules ‘either before or after the occasion for compliance arises’ under r 1.06.

The issue raised by Mr Muto’s challenge to the Tribunal’s exercise of power turns upon the question whether the true meaning of the statutory requirement in s 99 is that its breach should invalidate the Tribunal’s decision.[48]
[48]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 390 [93] (McHugh, Gummow, Kirby and Hayne JJ).

The Tribunal is given much flexibility in relation to the regulation of its own procedure under s 98 of the VCAT Act which provides as follows:

General procedure
(1) The Tribunal—
(a) is bound by the rules of natural justice;
(b)is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures;

(c) may inform itself on any matter as it sees fit;
(d)must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit...

The Tribunal has a wide ranging power to waive compliance with the requirements of the rules both before and after a requirement was to be met under r 1.06.

In that statutory context, even if notice were required under s 99 in the circumstances after directions had been given fixing and extending the hearing dates, I am not persuaded that the statutory intent of s 99 of the VCAT Act is that any non-compliance with invalidate any hearing at which the party to whom notice was required to be given is present. (That is not to say that there might not be a finding of procedural unfairness if a hearing were to proceed in the absence of a person to whom s 99 had required notice to be given and the requirement had been breached.[49])
[49]See Wright v VCAT [2001] VSC 35.

If Mr Muto were to rely upon a breach of s 99 as an error of law, leave to appeal would only be granted if the error had had a material consequence. There would have been none here. Mr Muto was not only present at the hearing, but he had been present or represented before the Tribunal at various hearings at which the prospective hearing dates for the applications had been fixed and extended from time to time.

Any argument that the orders of the Tribunal are vitiated by an immaterial breach of s 99 should not be entertained,[50] as the Secretary submits.
[50]See Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627, 639-640 [34]-[35] (French CJ, Gummow, Hayne, Crennan and Bell JJ).

Mr Muto has failed to persuade me that he has a real or significant argument in relation to this proposed ground of appeal

Proposed ground 8 – the Tribunal consolidated the proceedings

Mr Muto argues that the two proceedings were consolidated under s 82(1)(a) of the VCAT Act, contrary to the requirements of that section. He maintains that he was not given an opportunity to make submissions in relation to the consolidation.

This argument is misconceived, as the Secretary submits. Section 82(1)(a) does not apply because there was no consolidation of the proceeding.

In so far as Mr Muto argues that he was denied procedural fairness by being unable to make submissions relating to the order that relevant evidence in one proceeding would be treated as evidence in the other, there is no substance to this contention either. At the hearing of the adjournment application on 31 May 2013 before the Tribunal, Mr Muto was told by Senior Member Byard that there was likely to be a direction that relevant evidence in one proceeding would be evidence in the other to avoid duplication.[51] Mr Muto had ample opportunity to address the matter before absenting himself on 6 June 2013 or, indeed, when represented by counsel on the following day.
[51]Transcript of 31 May 2013, 72-73.

Proposed ground 9 – Mr Muto’s lack of legal representation

Mr Muto relies upon s 62(6) of the VCAT Act which he says has been overlooked. He complains that he was not informed by the Tribunal that s 62(6) allowed him to obtain legal representation or assistance from VCAT to conduct both proceedings.

Section 62(6) is in these terms:

62 Representation of parties
…
(6)If a party is unrepresented in a proceeding, the Tribunal may appoint a person (whether or not a professional advocate) to represent that party.

As the Secretary points out, the subsection relied upon does not impose any obligation on VCAT to appoint a representative for a party or to advise a party of its power to do so. I agree that Mr Muto’s reliance upon the subsection as an instance of a denial of procedural fairness or natural justice or error of law on the part of the Tribunal is misconceived. This proposed ground is not arguable.

Proposed ground 10 – the Tribunal exceeded its jurisdiction as to the period of disqualification

Mr Muto argues that the effect of the Tribunal’s orders is that he will be disqualified for, effectively, seven years, which is more than the maximum disqualification period of four years under s 81K(4) of the Local Government Act, because he will be unable to stand for election for a further term whilst disqualified. He argues that the Tribunal exceeded its powers by making such an order.

I would reject this submission. The order made was permissible under s 81K(4) and Mr Muto has not demonstrated any real or significant argument that the disqualification was beyond the power of the Tribunal because of its effect.

Nor is there any substance to his argument that the automatic ineligibility for mayoral office for the balance of the council’s term, triggered by a finding of serious or gross misconduct under sub-s 81K(5), indicates that any disqualification imposed under sub-ss 81K(3) or (4) must have been limited to that period. The legislation contemplated ineligibility or disqualification for four years in the context of other general provision for four year council terms.[52]
[52]See Local Government Act s 31.

Mr Muto also contends that the Tribunal erred in law because the orders amounted to manifestly excessive penalties, given their effect. In making this argument he compares his offence very generally to others he contends are more reprehensible.

The Tribunal expressly adverted to the consequences of disqualification including that they would prevent Mr Muto from standing for election. It concluded that the penalties were appropriate. Given the lengthy period over which he had engaged in misconduct and the nature of his misbehaviour and its effects upon the local government in Greater Shepparton, I am not persuaded that he has a real and significant argument that the orders imposed manifestly excessive penalties upon him.

Proposed ground 11 – Council costs indemnity

Mr Muto then argues that the Tribunal erred by overlooking s 76 of the Local Government Act. That section provides as follows:

76 Indemnity provision
A Council must indemnify and keep indemnified each Councillor, member of a Council committee, member of Council staff and any person exercising any function or power on behalf of a Council against all actions or claims (whether arising during or after the term of office or employment of that Councillor or member) in respect of any act or thing done or omitted to be done in good faith in the exercise or purported exercise of any function or power conferred on the Council or Council committee or any Councillor, member of the Council committee or member of Council staff by or under this or any other Act.

The short answer to this argument is that s 76 does not confer any relevant power on VCAT, which is a creature of statute with a jurisdiction limited to that conferred on it by statute.[53] He has not made out a real or substantial argument in relation to this proposed ground.
[53]Director of Housing v Sudi [2011] VSCA 266, [19] (Warren CJ).

Proposed ground 12 – the Tribunal made orders to protect non-party council

Mr Muto argues that orders made for the protection of a non-party to the proceedings were made by the Tribunal contrary to common law. He relies upon the statement in the reasons to the effect that the penalty for breaches of the Local Government Act is for the purpose of the protection of the council of the City of Greater Shepparton and not his own punishment.[54]
[54]Reasons, [105].

As the Secretary points out, the Tribunal was doing no more than referring to the well-established principle that the purpose of determinations in disciplinary proceedings is protective, rather than punitive, so that the protection of the public, including the council, is a relevant factor.[55]
[55]Van La Ha v Pharmacy Board of Victoria [2002] VSC 322, [91] (Gillard J).

Mr Muto has failed to demonstrate that he has a real or substantial argument with regard to this proposed ground.

Proposed ground 13 – Tribunal made factual findings that were not open

Mr Muto submits that the Tribunal based its conclusions in part upon false findings that he was the owner of the Shepparton Hotel and the electronic billboard attached to it which displayed messages referring disparaging the council and the councillors and the mayor.

He argues that the Tribunal erred by making those findings which were not open. He seeks to rely upon evidence by way of affidavits, each affirmed by Emma Muto and Walter Caverzan on 29 August 2013, to the effect that Ms Muto was, at that subsequent date, the sole owner of the hotel and that Mr Caverzan was, at that date the owner of the electronic screen upon which the messages were displayed. This material was obviously not before the Tribunal and, in any event, could not form the basis for the conclusion that it was not open to the Tribunal to arrive at the factual conclusions it did about ownership of the hotel and sign as at 10 July 2013.

There was, on the other hand, evidence upon which the conclusions about ownership were open, in the witness statements of the councillors. It is not arguable that there is no evidence of the primary facts or available inferences as to ownership found by the Tribunal.[56]
[56]See Azzopardi v Tasman UEB Industries (1985) 4 NSWLR 139, 151 (Kirby P).

Indeed, in its reasons, the Tribunal records admissions Mr Muto made in relation to his conduct in settling the application before Ross J. It notes that one such admission was that he had engaged in misconduct in a telephone conversation on 13 November 2009 with the council’s chief executive officer, Phil Pearce ‘regarding a planning permit for an electronic sign at [his] hotel premises’.[57]
[57]Reasons, [41].

Ms Salomon also referred to the hotel billboard message directed at her and her resulting upset in her 7 June 2012 witness statement. She deposed that, before seeing the sign, she received a message from Mr Muto saying: ’Just saw a nice sign at the Shepp Hotel you get a nice mention merry Xmas’. This was in the context of her having restricted his access to emails at work after receiving complaints that he had directed inappropriate emails to council officers.

Mr Muto made no reference to these allegations about the hotel or the electronic billboard in the material he put before the Tribunal. He did not deny ownership. He filed only two very short witness statements from men who each said that they had not heard him swear or say certain alleged things in two particular telephone conversations.

In all the circumstances, Mr Muto has failed to satisfy me that he has a real or substantial argument in relation to this proposed ground either.

Proposed ground 14 – recordings of the proceeding not provided

Mr Muto submits that no recording of the hearings on 6 and 7 and 12 June 2013 have been provided to him, in breach of the requirements of procedural fairness. As I have said, there is no recording and no transcript of the 6 and 7 June VCAT proceedings due to an accident.

Mr Muto does not rely upon any express obligation on the part of VCAT to provide transcript of a hearing under the VCAT Act. Rather, he maintains that the failure to provide transcript is contrary to the fairness requirement in s 97 and natural justice requirement under s 98 of the VCAT Act. Without the transcript, he argues, the Court is unable to see how hard he tried to obtain an adjournment or how the Tribunal scoffed at or ridiculed him, or read the opening submissions.[58] Mr Muto contends that the Reasons indicate that the Tribunal was deceived in some respects by the evidence advanced in his absence.
[58]Transcript 243-244.

The Secretary submits that, though unfortunate, the absence of transcript for the hearings of 6 and 7 June 2013 does not constitute a denial of procedural fairness or any other reviewable error. The Secretary points out that Mr Muto was served with copy notes of the hearing on 6 and 7 June 2012 taken by Daniel McCredden of the Victorian Government Solicitor’s Office and exhibited to the 18 November 2013 affidavit of Matthew Carrazzo also of the Victorian Government Solicitor’s Office. In evidence in this application, he acknowledged receiving the notes. He explained, however, that he had concluded that they had not been taken by anyone trying to advance his case and had thrown them into ‘the bin’.[59]
[59]Ibid 387.

I note with respect to Mr Muto’s procedural fairness argument that there is no evidence of him having indicated to the Tribunal that he proposed to rely upon transcript of the hearing when he left voluntarily on 6 June 2013, having been told that the Tribunal would continue in his absence.

I agree with the Secretary that, in all the circumstances, Mr Muto has failed to make a real or substantial argument relating to this proposed ground of appeal.

Proposed ground 15 in relation to serious misconduct proceeding– the Tribunal’s orders were beyond its power under s 81K(3)

Mr Muto argues that, in the serious misconduct proceeding, the Tribunal’s orders under s 81K(3) of the Local Government Act were made in error because proceedings authorised under s 81B by a CCP do not permit the Tribunal to impose penalties under s 81K.

This argument is misconceived. The proceeding authorised by the CCP was brought in VCAT under s 81J(1)(b), to which s 81K specifically refers.

Mr Muto also submits that the Tribunal erred in finding that he had engaged in serious misconduct under para (c) of s 81A of the Local Government Act because the Court of Appeal had concluded that VCAT President Ross J had not made the findings of misconduct on which its conclusion was premised.[60]
[60]Affidavit of Milvan Muto, sworn 2 November 2013, [51].

On the contrary, the Court of Appeal noted that Ross J had made findings of misconduct on Mr Muto’s part on the basis of his admissions,[61] and went on to conclude that the President had jurisdiction under s 93 of the VCAT Act to make orders reflecting Mr Muto’s admissions as to misconduct and the agreed penalties.[62]
[61]Muto v Department of Planning and Community Development [2013] VSCA 85, [5] (Nettle AP and Neave JA).
[62]Ibid [40]-[41].

Once again Mr Muto has failed to demonstrate an arguable case in relation to this proposed ground.

Proposed ground 16 in relation to gross misconduct proceeding – the Tribunal had regard to Mr Muto’s entire conduct

Mr Muto argues that the Tribunal erred by taking into account the conduct constituting his serious misconduct when deciding that he had engaged in gross misconduct.

This argument lacks substance.

The Tribunal found Mr Muto had engaged in gross misconduct on the basis that his behaviour demonstrated that he was not a person of good character or otherwise a fit and proper person to be a councillor within the meaning of para (b) of the definition of ‘gross misconduct’ under s 81A. This enabled it to take into account all his relevant behaviour, including that which the Tribunal determined amounted to ‘serious misconduct’. As the Secretary argues, it would be quite artificial to consider Mr Muto’s character without regard to those matters.

As I understand him, Mr Muto also submits that the Tribunal erred because it found him to have engaged in gross misconduct without finding that his behaviour satisfied para (a) of the definition of gross misconduct in s 81A.

I have set out the definition of ‘gross misconduct’ in s 81A earlier.[63] ‘Gross misconduct’ under sub-s (a) is an alternative to gross misconduct under sub-s (b). Mr Muto’s submission is not arguable.

Proposed ground 16 in relation to serious misconduct proceeding–proceeding was ‘contrary to Councillor Code of Conduct’

[63]See [10] above.

A different proposed ground 16 is raised in respect of the serious misconduct proceeding. Mr Muto submits that the serious misconduct proceeding was commenced contrary to the Councillor Code of Conduct A draft form of the Councillor Code of Conduct was exhibit ‘RDM8’ to the 8 April 2014 affidavit of Ross David Millard.

Mr Muto argues that the City Of Greater Shepparton Councillor Code of Conduct provides for an internal dispute resolution process to be undertaken prior to referral to a CCP. He asserts that no internal dispute resolution was attempted. Further, he cites the Code of Conduct provision that an alleged offence under the Local Government Act should be referred to the Minister for Local Government and not to a CCP.

The Secretary submits that this ground is misconceived and incapable of vitiating the orders. I agree.

Section 81B of the Local Government Act clearly provides for the referral to VCAT of an application for a finding of serious misconduct by a CCP. Further, I have found as a fact that Mr Muto did not respond to the suggestion of mediation by the mayor before the councillors sought authorisation to apply to VCAT for the serious misconduct finding. Further, neither of the findings of serious and gross misconduct constituted findings that an offence had been committed under the Local Government Act.

Mr Muto has failed to advance a real or substantial argument in favour of this proposed ground of appeal.

Proposed ground 17 in relation to serious misconduct proceeding and ground 15 in relation to gross misconduct proceeding – non-existent party

There is no substance to Mr Muto’s submissions to the effect that the Tribunal’s orders in the gross misconduct proceeding or the serious misconduct proceeding were invalid because the applicant Secretary to the Department of Planning and Community Development did not exist at the time of the orders.

I have already set out the effect of the Administrative Arrangements Order upon that proceeding. There is no merit in the argument that the orders themselves constituted ‘transactions’ under the definition in cl 4(1) and so were not caught by the because they were made after 1 July 2013.

Conclusion

Mr Muto has failed to establish that the Tribunal’s decisions were attended by sufficient doubt to justify the granting of leave to appeal. It would not be just to grant him leave. The applications should be dismissed.

Corrigendum – 27 March 2015

In the version of these reasons originally published, the second sentence of paragraph 101 read “He was represented by Mr P Cadman of counsel.” The Court has subsequently been informed that Mr Muto represented himself on 9 August 2013 and a correction has been made accordingly.

---

SCHEDULE OF PARTIES

BETWEEN:

COUNCILLOR MILVAN MUTO Plaintiff

- and –

SECRETARY TO THE DEPARTMENT OF TRANSPORT, PLANNING
AND LOCAL INFRASTRUCTURE First Defendant

GEOFFREY DOBSON Second Defendant

MICHAEL POLAN Third Defendant

CHERIE CRAWFORD Fourth Defendant

CHRIS HAZELMAN Fifth Defendant

JENNY HOULIHAN Sixth Defendant

KEVIN RYAN Seventh Defendant

[2014] VSC 619

12 December 2014