Pham v Department of Justice
[2013] VSC 45
•19 FEBRUARY 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PRACTICE COURT
No. 3931 of 2012
| LE TUAN PHAM | Plaintiff |
| v | |
| DEPARTMENT OF JUSTICE VICTORIA & ATTORNEY GENERAL OF VICTORIA | Defendants |
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JUDGE: | DIXON J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 26 SEPTEMBER 2012 | |
DATE OF JUDGMENT: | 19 FEBRUARY 2013 | |
CASE MAY BE CITED AS: | PHAM v DEPARTMENT OF JUSTICE | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 45 | |
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Practice and Procedure – appeal from order of associate judge – order made by Victorian Civil and Administrative Tribunal (VCAT) by Principal Registrar rejecting filing of an application seeking relief from Attorney General and Department of Justice for complaints against members and registrars of VCAT under Equal Opportunity Act 2010 was affirmed on review by VCAT member - originating motion seeking relief against Attorney General and Department of Justice – whether an application for leave to appeal from decision of VCAT member being made – whether arguable question of law shown – whether an application made under Administrative Law Act or under the Charter – no basis for any claim for the relief sought identified – proceeding dismissed - s 148 Victorian Civil and Administrative Tribunal Act 1998, s 39 Charter of Human Rights and Responsibilities Act 2006 – s 3 Administrative Law Act 1978 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Nil | Self represented |
| For the Defendants | Ms F Batten | Victorian Government Solicitor |
HIS HONOUR:
Background
On 3 April 2012, Mr Le Tuan Pham, the plaintiff, attempted to file with the Victorian Civil and Administrative Tribunal (VCAT) an application in the Anti-Discrimination List of the Administrative Division of VCAT. Mr Pham’s application indicated, by marking the relevant box on the VCAT application form, a complaint under the Equal Opportunity Act 2010 against the Attorney General of Victoria, Mr Robert Clark and the Department of Justice.
Mr Pham’s application form alleged:
(a)that he had been discriminated against on the basis of disability, employment activity, gender identity, physical features, political belief or activity, race and sex; and
(b)that he had been victimised, racially vilified and subject to prohibited requests for discriminatory information.
The events which underpinned Mr Pham’s allegations of discrimination, victimisation and vilification allegedly occurred in 2011 and 2012. In a section of Mr Pham’s application form, “What happened?”, Mr Pham stated:
VCAT Members
1. J Kefford strike out medical report of chronic condition.
2. G Nihill continuously providing legal advice to respondents.
3. VCAT registrars (?) colluding with slumlords in illegal eviction.
4. VCAT continuous harassment and victimisation of myself.
5. I believe this is based on race.
6. I believe that this is based on my making application against Vic Police.
Apart from the inference that Mr Pham had been involved in other applications before VCAT, the material circumstances in which he claims he was subject to discrimination, victimisation and vilification were not revealed.
The principal registrar of VCAT wrote to Mr Pham on 18 April 2012 and rejected Mr Pham’s application pursuant to s 71 of the Victorian Civil and Administrative Tribunal Act. Section 71 of the VCAT Act 1998 enables the principal registrar of VCAT to reject applications. The section states
71. Principal registrar or the Tribunal may reject certain applications
(1)Unless otherwise provided for in the rules, the principal registrar may reject an application that-
(a)is made by a person not entitled to make it; or
(b)is lodged after the expiry of the period specified in the enabling enactment; or
(c)does not otherwise comply with this Act, the regulations or the rules.
(2)If the principal registrar rejects an application, the applicant may require the principal registrar to refer the application to the Tribunal for review of the rejection.
(3)If the principal registrar rejects an application, he or she must inform the applicant of the right of referral under subsection (2).
The reasons stated for rejecting Mr Pham’s application were that the principal registrar did not consider that VCAT had the power to hear and grant relief. The matter required adjudicating on a complaint the detail of which apparently directly related to VCAT members. Such a proceeding could result in a fundamental breach of the rules of natural justice. If Mr Pham had a legitimate complaint, he had chosen the wrong forum.
On 24 April 2012, Mr Pham applied to VCAT to review this decision.
On 24 May 2012, Member Dea reviewed the principal registrar’s decision under s 71(2) and s 71(5) of the VCAT Act 1998.[1] Mr Pham was the only party in attendance. VCAT notified the proposed defendants of the hearing but they were not required to attend. Mr Pham submitted to Member Dea that s 39 and s 24 of the Charter of Human Rights and Responsibilities Act 2006 entitled him to commence the action. Mr Pham further contended that the basis of his claim against the Attorney General and the Department of Justice was that they had not been ‘effective’ and had ‘failed to monitor their employees in VCAT’. After the hearing, without leave, Mr Pham sent the member written submissions contending (amongst other things) that various members of VCAT had acted ‘not in good faith, deliberately and racially profile and breaches section 10 of the Charter’.
[1]Pham & Anor v Clark & Anor (Anti-Discrimination) [2012] VCAT 801 (13 June 2012).
On 13 June 2012, Member Dea confirmed the order of the principal registrar and published reasons for finding that Mr Pham was not a person entitled to make the application to the tribunal, rejecting Mr Pham’s application for review of the rejection of his process.[2]
[2]Ibid [42].
The application in this court
On 11 July 2012, Mr Pham filed in this court an originating motion and summons, supported by an affidavit, naming the Department of Justice and the Attorney General of Victoria as respondents. A Deputy Prothonotary of this court waived the prescribed filing fee under s 129(3) of the Supreme Court Act 1986 on the ground of financial hardship. Mr Pham sought the following orders:
a)Order made at VCAT on the 13 June 2012, to be set aside AND OR struck out.
b) Cost order to made in favour of the Appellant(s).
c)Seeking a declaration of unlawfulness and associated relief including an injunction, a stay of proceedings or exclusion of evidence.
d)Under Victorian Charter for Human Rights and Responsibilities 2006 (Vic).
e) Equal Opportunity Act 2010 (Vic).
f)Whether a question of denial of procedural fairness or natural justice is a question of law.
a. a breach of natural justice;
b. a breach of human rights;
c. a breach of anti-discrimination and vilification legislation;
d. an error of law; and or
e. a failure to take into account a relevant consideration.
g) Administrative Law Act 1978 (Vic).
a.Writs of Mandamus: for cruel and inhumane treatment of the person with a disability.
An affidavit sworn by Mr Pham on 11 July 2012 is entirely unenlightening about the circumstances that have aggrieved Mr Pham, from which it might have been possible to assist Mr Pham to articulate legitimate concerns. Only two matters of fact can be identified from that affidavit; that there was a hearing before Member Dea and that on 11 November 2011 a written request for ‘a rehearing of a possession order of the 17th November 2011’ (sic) was refused. Mr Pham appeared to feel aggrieved about each of these matters on generically expressed, but unexplained, human rights grounds.
On 30 July 2012, when the application came before Zammit AsJ for case management, Mr Pham was the only party who attended. Mr Pham had, that day, sworn and filed a second affidavit. This affidavit was, in its contents, further removed from any relevant issue than his original affidavit. The affidavit stated that on four occasions, including 25 July 2012:
‘I have asked for the “copies” of the Order and Statements of Reason from Member Cremean, that the High Court of Australia requested for Leave to Appeal, Exhibit #2.
Exhibit 2 is in these terms:
1.Further to my previous requests;
2.I seek an urgent application before the President of VCAT for ALL my matters;
3.I seek that the President of VCAT take over presiding over ALL my matters;
4.This is because I have a High Court Application M27/2012, challenging the integrity and independence of VCAT to hear my cases in a fair and impartial manner;
5.Due to the fact that Deputy Presidents may have been at VCAT so long that they may NOT have taken any Oath of Office;
6.VCAT is conspiring to pervert the course of justice and depriving me due process, by actively denying me rehearing pursuant to the VCAT Act;
7.or denying me proper Directions, and denying me access to documents and evidence under procedure of document discovery;
8.At 11am on 25/07/2012, the High Court Registrar Mussolino rang me to ask for the Decision and Reasons for an Possession Order from Member Cremean;
9.I have asked for this repeatedly, and VCAT has refused to provide it;
10.Please sent it to me asap, Member Wentworth has a copy of it in a recent file: R20129296 & R20124144.
Again, there is a hint, but no more, that Mr Pham’s true concerns may relate to a possession order made by a VCAT member. In the remainder of the affidavit, Mr Pham alleges a ‘conspiracy to pervert and deny myself access to the VCAT Act, under their discrimination and harassment.’ He refers to a newspaper report of statements by the Premier about the future intentions of his government in respect of the Charter, that is, about possible amendment of the Victorian Charter for Human Rights and Responsibilities 2006 (Vic).
Zammit AsJ granted Mr Pham leave to file and serve an amended originating motion and a further affidavit in support by 22 August 2012 and adjourned the application to Lansdowne AsJ for hearing on 27 August 2012.
Zammit AsJ recorded the following remarks in ‘OTHER MATTERS’:
The plaintiff is not legally represented. The Plaintiff’s Originating Motion, the Summons and Affidavit in Support dated 11 July 2012, fail to properly disclose the legal basis upon which the Plaintiff appeals or seeks judicial review of an Order made by the VCAT dated 13 June 2012.
Mr Pham informed the Court that he makes the application pursuant to the VCAT Act 1998; the Administrative Law Act 1978 and the Victorian Charter of Human Rights and Responsibilities Act 2006.
The Court informed Mr Pham that based on the documents currently before the Court, there are doubts that he could establish even a “prima facie” case where leave is required.
On 13 August 2012, the Victorian Government Solicitor filed a notice of appearance on behalf of both defendants.
On 24 August 2012, Mr Pham filed an amended originating motion that now identified the relief or remedy sought in these terms (sic):
a) This is an appeal pursuant to:
a.Section 148 of the Victorian Civil and Administrative Tribunal Act 1998; and
b.Section 39 of the Charter of Human Rights and Responsibilities Act 2006; or in the alternative
c. Section 3 of the Administrative Law Act 1978; and
d.Section 39 of the Charter of Human Rights and Responsibilities Act 2006; or in the alternative
e.Section 39 of the Charter of Human Rights and Responsibilities Act 2006; or in the alternative
b)Order made at VCAT on the 13 June 2012 by Member Dea, to be set aside AND OR struck out;
c) Cost order to be made in favour of the Appellant(s);
d)Seeking a declaration of unlawfulness and associated relief including an injunction, a stay of proceedings or exclusion of evidence;
e)Under section 39 of Victorian Charter for Human Rights and Responsibilities 2006 (Vic); and or
f) Equal Opportunity Act 2010 (Vic);
g)Whether a question of denial of procedural fairness or natural justice based on the protected characteristics of race and disability, is a question of law:
a. a breach of natural justice;
b. a breach of human rights;
c.a breach of anti-discrimination and vilification legislation, State and Commonwealth;
d.a breach of Commonwealth’s obligation to international human rights treaties;
e. an error of law; and or
f. a failure to take into account a relevant considerations;
g.whether unlawful discrimination based on race and disability is ‘acting in good faith’.
h) Grounds of Review:
a. No jurisdiction
b. Error of law
c. Improper exercise of power
d. Relevant and irrelevant considerations
e. Improper purpose
f. Unreasonableness
g. Bad faith
h. Uncertainty
i. Improper delegation
j. Divesting or dictation
k. Inflexible policy
l. Methods or procedures adopted
m. Natural justice
i) Administrative Law Act 1978 (Vic)
What Mr Pham wants
The relief or remedy that Mr Pham contends he is entitled to is described as:
(a)Writs of Mandamus: for cruel and inhumane treatment and of the person with a disability, as a means to discriminate based on race and or disability.
(b)Injunction is sought for all proceedings before VCAT and or the Supreme Court of Victoria, until such time that the Notice of a Constitutional Matter can be dealt with in the Supreme Court of Victoria or the High Court Australia, M21 of 2012 Pham v Nguyen or stay proceedings.
On 24 August 2012, Mr Pham swore and filed yet another affidavit. The affidavit seeks leave to provide evidence to the court on 27 August 2012, being three medical reports from a Dr Tang, and returns to making generic statements about conspiracies to deny Mr Pham human rights. Again, there is a hint that Mr Pham’s concern that his human rights may have been violated concerns the refusal of the rehearing of a possession order that resulted in an illegal eviction rendering him homeless. Mr Pham appears to direct bald allegations of denial of procedural fairness, conspiracy, discrimination, harassment and bullying, bad faith and conspiracy to pervert the course of justice at ‘VCAT, president, deputy presidents, registrars and members’. He asserts the apparent failings of a number of VCAT members.
There appears to be no, or little, correlation between these assertions and the concerns identified by Member Dea when Mr Pham was invited to articulate his concerns against the Attorney General and the Department of Justice that might be the subject of the application refused by the principal registrar. Rather, Mr Pham refers to unrelated incidents, such as the publication by Monash Legal Service of a report that Victorian Police targeted African youth, that a man was found dead in police custody on 30 November 2010, that there is ‘cowardly abuse of Judicial Immunity’ in denying procedural fairness by unlawful discrimination and ‘hiding behind Ku Klux Klan-style white hoods, sheets, robes and burning crosses’ and ‘too much privileges afforded to Sacred Cows’ (apparently a reference to the number of deputy presidents and members of VCAT who are women).
The decision of the associate judge
At the hearing on 27 August 2012, before the associate judge, counsel appeared for the defendants. Mr Pham unsuccessfully applied to adjourn the application on medical grounds. Mr Pham relied on his three affidavits, to which I have already referred. The associate judge dismissed the amended originating motion, ordering that the plaintiff pay the defendant’s costs, fixed in the sum of $3,250.00. Her Honour briefly recorded her oral reasons in the order in ‘Other Matters’ as follows:
1.In relation to order 1, the plaintiff has not demonstrated any basis for adjournment. No medical evidence is produced to support his assertion that adjournment is sought on medical grounds. Further, the application is made without notice to the defendants and the proceedings have already been adjourned once.
2.In relation to order 2, the amended originating motion was served and has been treated in argument as filed.
3.In relation to order 3, the following is a brief summary of the reasons given orally.
4.If the relief sought is by way of appeal pursuant to s 148 of the Victorian Civil and Administrative Appeal Act 1999, leave to appeal is refused. No draft notice of appeal is filed and the amended originating motion fails to disclose any question, let alone an arguable question of law, articulated by reference to the decision of Member Dea and the facts there in question, as opposed to general questions posed in the abstract.
5.The Court accepts the submission of the defendants that there was a remedy available to the plaintiff, if he wished to challenge the decisions of Member Kefford and Nihill on the grounds set out in his proposed application to VCAT, by way of application for leave to appeal from their decisions to this Court.
6.If the relief sought is by way of s 3 of the Administrative Law Act 1978, and the decision maker is Member Dea, then no prima facie case for relief is shown. The defendants made no decision that could be the subject of relief under s 3.
7.The third basis for relief identified in the amended originating motion, s 39 of the Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’), does not afford a stand alone right to relief. A claimed breach of s 38 of the Charter can only be relied upon in proceedings for relief otherwise properly instituted. By reason of paragraphs 4, and 6, there are no such proceedings here.
8.In relation to order 4, the plaintiff did not oppose the making of a costs order in favour of the defendants. He sought to be excused and left prior to determination of fixed costs and after being given an opportunity to address the Court in relation to quantum.
The appeal to the practice court
On 4 September 2012, Mr Pham filed a Notice of Appeal against this order. The notice was in the following terms:
Leave is sought if the Notice of Appeal is out of time; due to medical conditions as supported by accompanying affidavit and exhibits of medical reports and specific medical certificate for period of 30 August-1 September, inclusive.
Special Leave is sought to provide further affidavit(s) on the substantive matter before the courts.
That Notice of Appeal came on in the Practice Court on 26 September 2012. Rule 77.05(7)(a) then provided that an appeal from a decision of an associate judge to a judge is a rehearing de novo of the application that was made to the associate judge, and on the material and evidence that was before the associate judge. Special leave is required to file and rely on material that was not before the associate judge (r 77.05(b)).
The application for leave to rely on a further affidavit
On 13 September 2012, Mr Pham swore and filed a further affidavit and he sought special leave from me to rely on the affidavit on the appeal. I need not set out the substance of this affidavit. It was directed to the conduct of the proceeding before the associate judge and was necessarily irrelevant, given the nature of the hearing before me. It also invited the court to consider a fresh and different application. I refused special leave. Mr Pham required reasons, which I gave, ex tempore, before proceeding with his appeal.
The application before me is an appeal under order 77 from an order of an associate judge made on 27 August 2012. The application is brought by a notice of appeal filed 4 September 2012.
Rule 77.06 of the Supreme Court Rules provides that:
An appeal shall be by rehearing de novo of the application to the associate judge but each party may, subject to any proper objection as to admissibility, rely upon any affidavit used before the associate judge and upon any evidence given orally before the associate judge by special leave of the judge of the court rely on affidavit or oral evidence not used or given before the associate judge.
Before me, Mr Pham seeks special leave to rely on an affidavit that he swore on 13 September 2012.
I was informed that this affidavit has been filed and served. The respondents to the appeal oppose its use in the appeal. A copy was not located on the court file and Mr Pham has made a copy available to me, which looks like the original affidavit. I have read the affidavit.
When I invited for Mr Pham to provide me with an explanation as to why the material was not put before the associate judge, he informed me that the affidavit addresses what occurred before the associate judge.
It is, to that extent, irrelevant to the application because the application is a rehearing de novo of the original application made to the associate judge.
The affidavit deals with matters other than what occurred before the associate judge. It contains a request for a referral of a question of law to the Court of Appeal. There is no application of that sort before the court today.
Accordingly, as the affidavit is irrelevant to the application that is before this court, special leave to rely upon it has been refused.
Mr Pham’s submissions on the appeal
I invited Mr Pham to address the application he had made to the associate judge and to consider which of those issues he wished to press again. Mr Pham did not press his previous oral application for an adjournment for health reasons, and he did not directly address the appeal. Mr Pham contended that:
(a) section 39 of the Charter had been enlivened by:
a) the conduct of VCAT (through its members);
b)the conduct and order of VCAT Member Dea made 13 June 2012; and
c) through the conduct of Associate Justice Lansdowne in her Honour’s order of 27 August 2012.
(b)the defendants had ‘no defence or at least a defective defence’ and that the order of the associate judge was an ‘inconsistent consideration of the facts and evidence, that’s just not consistent with the Charter’.
Mr Pham sought an order that I ‘refer the matter to the Court of Appeal under s 33 of the Charter on a question of law regarding application of a charter and question of inconsistencies in the application of the Charter’. Mr Pham had not made this application to the associate judge, and stated he now wished to make this application on the basis explained in his affidavit of 13 September 2012.
I had already refused Mr Pham special leave to rely on his affidavit of 13 September 2012 and that affidavit could not therefore be the basis for a further, different application. Mr Pham made a further oral application for me to refer my refusal to admit the affidavit to the Court of Appeal as a question of law, pursuant to s 33 of the Charter. Mr Pham had not filed a summons for any relief and had not given any notice to the defendants of any application other than the appeal. I refused to entertain the application that I refer a question of law to the Court of Appeal on that basis. I might also have refused to entertain it on other grounds, including under s 63(2)(c) of the Civil Procedure Act 2010 or exercising, on my own motion, an inherent jurisdiction to bar a plaintiff from acting frivolously in an extant proceeding.[3]
[3]See Grepe v Loam (1887) 37 Ch D 168; Foran v Derrick (1893) 14 ALT 284; Kinnaird v Field [1905] 2 Ch 306; Davison v Colonial Treasurer (1930) 47 WN (NSW) 19; Commonwealth Trading Bank of Australia v Inglis, above; Attorney-General v Wentworth (1988) 14 NSWLR 481 at 492; Hunter v Leahy (1999) 91 FCR 214; [1999] FCA 1075; and von Risefer v Permanent Trustee Co Pty Ltd [2005] 1 Qd R 681; [2005] QCA 109.
At this stage of the hearing, based on what had unfolded before me, I considered that Mr Pham was querulous and appeared to want to use the opportunity at the bar of the practice court to raise whatever application then entered his head without regard to process or procedure. The objects identified in s 9 of the Act, particularly in ss (1)(c), (d), and (g) in relation to the obligation of the court to further the overarching purpose of the Civil Procedure Act, became relevant.
Neither the affidavits nor his oral submissions had yet revealed the underlying material facts from which Mr Pham’s concerns may have arisen. Pressed to focus on whatever was the primary objective of his proceeding, Mr Pham submitted that there was a breach of natural justice by the VCAT Principal Registrar. Mr Pham submitted that the Registrar had no jurisdiction to deny his VCAT application; it was an improper exercise of power made for irrelevant considerations; an improper purpose and it was unreasonable. Further, he alleged that the conduct of VCAT amounted to a breach of the Charter; a denial of procedural fairness; an error of law; improper delegation and that he was denied a proper hearing. I invited Mr Pham to explain the material circumstances that, in his view, amounted to discrimination, victimisation, or vilification, expecting that I might be told something about the circumstances of his application for a rehearing of a possession order, but Mr Pham did not accept my invitation, continuing to speak in generalities unrelated to the circumstances of any individual.
Mr Pham pressed his appeal against the order of the associate judge dismissing the amended originating motion on the grounds that ‘it’s clear question of law, question of error of law, there was no defence, there was no effective defence and there’s prima facie case.’ When asked to articulate the error of law that Mr Pham was seeking to litigate, Mr Pham stated ‘Anna Dea made error of law’ but no error of law is identified in the amended originating motion, which Mr Pham acknowledged adding ‘I believe the affidavit[4] would provide some evidence of that’. As had consistently occurred, Mr Pham presented his contentions at a high level of generality unrelated to what ever had actually occurred that might have founded an application for relief.
[4]Of 24 August 2012.
Conclusion
Mr Pham identified no claim with any real prospect of success. No error by VCAT was identified in his affidavits or before the associate judge. It was apparent that, just as the VCAT Member had done, the associate judge had sought to identify from the morass of scandalous and baseless allegations whether there was any tenable claim that ought to be permitted to proceed. In this process, Mr Pham offered no assistance. As I have noted, Mr Pham showed no interest in my invitation that he explain what had happened to him. Mr Pham has not revealed any basis at all for his claim for the relief set out in the amending originating motion, which was foredoomed to fail. Mr Pham’s application has been a waste of judicial resources, narcissistically pressed it would seem.
As the Department of Justice submitted, if Mr Pham was aggrieved by the conduct of Members of VCAT, his remedy was to seek leave to appeal from their decisions to this court, an entitlement provided to him by s 148 of the VCAT Act.
Counsel contended that Mr Pham’s originating motion as framed against the Department of Justice and the Attorney General was hopeless, whatever actually be the factual basis for that claim. Conceptually flawed, no tenable claim can ever be articulated for the relief apparently being sought. That may be a reason why the material that Mr Pham has filed in this proceeding is devoid of relevant contentions of material fact.
It is plainly within the jurisdiction of this court to supervise inferior courts and tribunals, but that jurisdiction has not been enlivened in this proceeding. To suggest that role is a function or an obligation of the Attorney General or of the Department of Justice is misconceived. Section 16 of the VCAT Act provides that the Governor in Council appoints members of VCAT, other than the Vice President appointed under s 11(a) of the VCAT Act, on the recommendation of the Minister. VCAT members are independent of the executive arm of the State of Victoria. Section 16(3) provides that the Public Administration Act 2004 does not apply to a member in respect of the office of member. The respondents are not responsible for their actions in any justiciable sense and no entitlement to relief against the Department of Justice or the Attorney-General is, or can be, shown.
Mr Pham’s application under s 3 of the Administrative Law Act was also misconceived and the appropriate course to challenge a decision of a VCAT member was to seek in this court leave to appeal that decision.
Mr Pham’s contention that s 39 of the Charter was enlivened must fail as there were no proceedings on foot that enlivened s 39, as none existed under s 148 of the VCAT Act, or s 3 of the Administrative Law Act. Section 39(2) preserves the right to seek any relief or remedy in respect of an act or decision of a public authority, including a right-
(a)to seek judicial review under the Administrative Law Act 1978 or under Order 56 of Chapter I of the Rules of the Supreme Court; and
(b)to seek a declaration of unlawfulness and associated relief including an injunction, a stay of proceedings or exclusion of evidence.
No basis for any relief or remedy in respect of the decision of the VCAT Member on 13 June 2012 is shown, or could be shown were Mr Pham granted another opportunity to attempt to do so. The decision of the associate judge was plainly correct and looking afresh at the relief sought by Mr Pham I have come to the like conclusion.
The appeal will be dismissed with costs.
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