Tomasevic v All States Legal Co Pty Ltd

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0010

MILAN TOMASEVIC	Applicant
v
ALL STATES LEGAL CO PTY LTD T/AS NOWICKI CARBONE	First respondent
VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL	Second respondent

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JUDGES:	SIFRIS and MACAULAY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	14 December 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 276
JUDGMENT APPEALED FROM:	[2021] VSC 815 (Incerti J)

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ADMINISTRATIVE LAW – Application for judicial review of Victorian Civil and Administrative Tribunal (‘VCAT’) order under s 62(6) of Victorian Civil and Administrative Tribunal Act 1998 – Where Deputy President declined to appoint person to assist self-represented litigant – Whether Deputy President applied wrong test – No error in exercise of discretion of Deputy Registrar – Application to trial division dismissed – No error in decision of judge – Leave to appeal refused.

Victorian Civil and Administrative Tribunal Act 1998 s 62(6).

Ogawa v University of Melbourne [2005] VCAT 197 considered.

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Counsel
Applicant:		In person
First respondent:		No appearance
Second respondent:		No appearance
Solicitors
Applicant:	--
First respondent:	Slater and Gordon Lawyers
Second respondent:	--

SIFRIS JA
MACAULAY JA:

Introduction

The matter before this Court is an application for leave to appeal from an order made in the trial division dismissing an application for judicial review of a decision of the Victorian Civil and Administrative Tribunal (‘VCAT’). That application for leave to appeal reached this Court in the circumstances we now describe.
The first respondent, Nowicki Carbone, acted for the applicant in Supreme Court proceeding SCI 2010 01155 (the ‘Personal Injury Proceeding’)[1] for a period between 2011 and 2013. After 2013, the Personal Injury Proceeding continued to trial and judgment in July 2020 (as explained below), conducted on behalf of the applicant by another firm of solicitors.
[1]Tomasevic v State of Victoria [2020] VSC 415.
In 2017, the applicant commenced proceedings against Nowicki Carbone in the Victorian Civil and Administrative Tribunal (‘VCAT’), alleging negligence by Nowicki Carbone in incurring barristers’ fees (the ‘VCAT Proceeding’). By a further amended points of claim dated 25 January 2018, the applicant claimed damages of $30,000 (being the funds allocated by the Australian Education Union to his case and allegedly misapplied) plus $95,000 as compensation for a psychiatric injury allegedly developed as the result of the applicant being unable to secure legal representation after the Australian Education Union funding had been utilised.
The VCAT Proceeding was listed for final hearing before Member Josephs on 26 March 2018. The hearing was vacated part-heard following an oral application by the applicant for an adjournment and an application by the applicant for Member Josephs to recuse himself. Member Josephs stayed the VCAT Proceeding until such time as the applicant provided a certificate from a treating medical practitioner confirming his fitness to attend and participate in the final hearing. He also agreed to recuse himself from the final hearing, if listed.
On 2 October 2019, the applicant submitted a new originating process in VCAT, by way of a new application form. In a handwritten attachment, the applicant repeated claims against Nowicki Carbone raised in his pleadings in the VCAT Proceeding, and applied for the appointment of pro bono representation. Attached to the form was a letter dated 24 September 2019 from his treating psychiatrist, Dr David Hines, who expressed a view that the applicant was able to instruct solicitors but not represent himself. He also attached a letter from his treating psychologist, Ann Linsten, dated 25 September 2019, expressing a similar view, as well as a letter from psychiatrist Dr John Cooper dated 10 April 2013.
In the handwritten attachment, the applicant submitted that he is in a position of ‘grave disadvantage’ for the following reasons:
(a)Nowicki Carbone is a law firm and is itself represented whereas the applicant is unrepresented;
(b)the applicant lacks the skills and abilities usually associated with legal professionals;
(c)self-represented litigants such as the applicant lack objectivity due to the emotion of their case;
(d)self-represented litigants are not in a good position to assess the merits of their claims;
(e)lack of knowledge of the law almost inevitably leads to ignorance of the issues for curial resolution;
(f)lack of knowledge of the law includes a lack of knowledge of courtroom formalities and the whole court process from initiation to hearing; and
(g)self-represented litigants lack familiarity with the language and special vocabulary of legal proceedings.
VCAT treated the applicant’s application of 2 October 2019 as one within the stayed VCAT Proceeding. On 24 October 2019, Senior Member Wentworth made an order listing the matter for directions on 4 December 2019. Paragraph 3 of the order relevantly provides:
The Tribunal notes that pro-bono assistance has not been able to be arranged for the applicant. The Tribunal also notes for the assistance of the parties that its jurisdiction in relation to personal injuries, including psychiatric injury, under s 182 of the Australian Consumer LawandFair Trading Act 2012 is limited to $10,000 …
On 4 December 2019, the Deputy President held a directions hearing in the VCAT Proceeding to consider whether to appoint a pro bono legal representative for the applicant under s 62(6) of the Victorian Civil and Administrative Tribunal Act 1998 (the ‘VCAT Act’), which provides that:
If a party is unrepresented in a proceeding, the Tribunal may appoint a person (whether or not a professional advocate) to represent that party.
The following comments of the Deputy President in his oral ruling suggest that, at the time of the hearing in December 2019, his main reservation about making an order under s 62(6) was the practical difficulty of securing pro bono representation:
Given that Mr Tomasevic has confirmed this morning that he has exhausted enquiries with Legal Aid, Justice Connect, and other bodies, the tribunal is in a dilemma, because they are the sorts of bodies that it approaches itself to provide pro bono assistance. Given that the principal registrar is considering that issue at the moment, all I can do today is to adjourn the matter with the stay maintained until that issue is resolved.
The Deputy President made the following written orders:
1.The proceeding remains stayed until:
•The Tribunal makes a direction or order in accordance with Order 2; or
•The applicant engages a legal practitioner to represent him; or
•The applicant provides to the Tribunal a certificate from a treating medical practitioner confirming his fitness to participate as a self-represented party.
2.The Tribunal will consider the applicant’s request for the appointment of an advocate under s 62(6) of the Victorian Civil and Administrative Tribunal Act 1998, as well as considering other options to provide assistance to the applicant or to facilitate an outcome in the proceeding — including for example the appointment of an amicus curiae to make submissions on defined matters of jurisdiction, law, fact or process. A further direction or order will be made once these matters have been considered.
3.The proceeding is adjourned to an administrative mention before a Deputy President on 14 February 2020. No attendance by the parties is required.
Order 2 reflects the fact that VCAT had not at that stage refused the applicant’s application. To the contrary, VCAT was investigating the possibility of appointing an advocate under s 62(6) of the VCAT Act. In his brief reasons accompanying the order, the Deputy President relevantly noted that:
At the hearing, it was readily apparent that the applicant was unable to properly represent himself. He was highly agitated, and unable to deal with relevant issues in an orderly or objective manner. The applicant is an intelligent man who generally understands the legal process, but he suffers from anxiety and mental health issues that appear to affect his objectivity and reasoning. This is also evident from the psychiatric and psychological reports that he has tendered in support of a request for a legal advocate be appointed on his behalf.
On 29 June 2020, VCAT wrote to the parties inviting written submissions on certain issues prior to a further administrative mention on 15 July 2020. However, prior to 15 July 2020, a significant event occurred.
On 9 July 2020, judgment was entered in favour of the applicant as plaintiff in the Personal Injury Proceeding. The defendant in the Personal Injury Proceeding, the State of Victoria, admitted negligence and the applicant was awarded damages of $1,093,000. By order dated 7 August 2020, a judgment sum of $1,541,860 (inclusive of interest) was declared in favour of the applicant. Of that amount, $184,692.36 was required to be paid to Centrelink, with the balance of $1,357,167.64 to be paid to the applicant. The same order required the State of Victoria to pay the applicant’s costs on a party/party basis to 31 March 2013, and thereafter on a standard basis.
The applicant’s award in the Personal Injury Proceeding is currently being held on trust by the solicitors who ran his trial, Antony, Sdrinis & Co (‘ASC’), Nowicki Carbone having ceased to act in 2013. The applicant has refused to provide instructions to ASC for the transfer of funds in excess of costs owing to it due to a dispute with ASC. The Court was told that ASC asserted that the amount owing by the applicant in respect of costs was the sum of about $1.1 million and that the issue of costs was still pending in the Costs Court. It is not clear what part of the amount claimed in respect of costs comprises the party/party and standard costs recoverable from the State of Victoria. It is also not clear precisely what issues are before the Costs Court. On any view however, it is a fair inference that a substantial amount remains owing to the applicant.
On 10 August 2020, the Deputy President made an order on the papers declining to appoint a professional advocate or other person to represent the applicant in the VCAT Proceeding.[2] That order was the subject of the judicial review application before the primary judge.[3]
[2]Tomasevic v All States Legal Co Pty Ltd t/as Nowicki Carbone [2020] VCAT 856.
[3]Tomasevic v All States Legal Co Pty Ltd t/as Nowicki Carbone & Anor [2021] VSC 815 (‘Reasons’).
The Deputy President concluded that the factors relevant to prioritisation of pro bono legal representation are also relevant considerations under s 62(6):
Pro bono legal representation, in my experience, is generally prioritised for those most in need — i.e. those who cannot afford legal representation. Other matters that might be taken into account include the nature and merits of the proceeding (for example, the prospects for success, or whether there is a ‘public interest’ in the litigation) and the financial circumstances or level of disability of the party seeking representation.
In my opinion, these same factors are of some relevance in the exercise of discretion under section 62(6).
It will be self-evident that I consider that Mr Tomasevic has a level of disability that may support the appointment of an advocate under section 62(6) if that factor is considered in isolation. But what of the other factors? Here:
•Mr Tomasevic’s claim in this VCAT proceeding is a private claim for civil damages, where he is a voluntary litigant in his own cause. Despite his assertions to the contrary, the proceeding is not in my opinion a matter of general ‘public interest’.
•having regard to the matters raised in the Points of Defence by the respondent, but without expressing any concluded view, Mr Tomasevic’s prospects of success do not appear to be strong, and some of his claim appears to be misconceived having regard to VCAT’s limited jurisdiction in matters of this nature.
•although Mr Tomasevic’s request for the appointment of a pro bono advocate was based, in part, on grounds of financial hardship, he has now received an award of damages in excess of $1 million, and he now has the means to pay for his own legal representation if he is minded to do so.
Taking all of these matters into consideration, I decline to exercise the discretion, under section 62(6) of the Victorian Civil and Administrative Tribunal Act 1998, to appoint a pro bono lawyer to represent Mr Tomasevic in this proceeding.
It remains nonetheless the case that, having regard to the medical evidence submitted by Mr Tomasevic, this proceeding cannot really move forward until Mr Tomasevic is legally represented. The medical evidence is that he could not adequately represent himself, but that he could properly instruct a professional advocate to represent him. In this regard, as I have said, he now has the means to pay for his own legal representation if he is minded to do so, or to himself negotiate a suitable arrangement with a lawyer of his own choosing. At the very least, Mr Tomasevic should be seeking independent legal advice about the jurisdictional and legal issues raised in the respondent’s Points of Defence, and how these matters may impact on the future course of the VCAT proceeding.[4]
[4]Tomasevic v All States Legal Co Pty Ltd t/as Nowicki Carbone [2020] VCAT 856, [26]–[30].
The Deputy President’s orders also included that:
2.The proceeding remains stayed until Mr Tomasevic provides to the Tribunal and the respondent either:
•a written notification that he has engaged a professional advocate to represent him at any future hearing; or
•a certificate from a treating medical practitioner confirming his fitness to participate as a self-represented party.
On 17 December 2020, the Deputy President made further orders in the VCAT Proceeding on the papers:
1.The proceeding is stayed pending the outcome of Mr Tomasevic’s application to the Supreme Court for judicial review of the Tribunal’s orders of 10 August 2020.
2.The proceeding is adjourned to a further administrative mention before a presidential member on 3 December 2021. No attendance by the parties is required. At the administrative mention, a presidential member will consider the future conduct of the proceeding based on any written submissions by the parties about the status or outcome of the Supreme Court review.
The primary judge dismissed the judicial review application.
It is unnecessary to set out further background facts. Further relevant facts and matters will be set out where necessary.

The judge’s reasons

After carefully and comprehensively setting out the relevant facts, the submissions of the parties and the relevant law, the primary judge said:
In conclusion, I do not consider there was any error of law made by the Deputy President and therefore dismiss the plaintiff’s Judicial Review Application.[5]
[5]Reasons, [91].
The judge held that properly interpreted, consideration of s 62(6) is not necessary where the applicant could reasonably be expected to access legal representation.
The judge commenced by considering the section itself and said:
This summary[6] suggests that VCAT’s existing view of s 62(6) is that the provision is only engaged where:
(a)there is a power imbalance between the parties resulting from case complexity, the applicant’s disabilities, or some other factor, which if unremedied, would prevent VCAT from deciding the case fairly; and
(b)that power imbalance cannot be adequately remedied by the tribunal assisting the applicant in other ways (which fall short of appointing a representative).
I consider that this interpretation is consistent with the text and structure of s 62. …[7]
[6]See Dobson v Muto (Review and Regulation) (No. 3) [2019] VCAT 167, [37].
[7]Reasons, [67]–[68].
The judge held that the Deputy President’s approach to s 62(6) was ‘broadly consistent’ with these principles and noted that the Deputy President clearly concluded the applicant’s disabilities ‘might take his case outside the ordinary run of cases involving self-represented litigants and therefore within the ambit of s 62(6)’.[8]
[8]Ibid [73]–[74].
The judge then dealt with the Deputy President’s consideration of the factors that typically inform prioritisation of pro bono resources. In relation to the Deputy President’s consideration of the financial circumstances or level of disability of the party seeking representation, the judge said:
In my view, the Deputy President was entitled to consider the plaintiff’s financial circumstances under s 62(6). I also consider that the inference drawn by the Deputy President on the basis of the plaintiff’s published damages award — that the plaintiff could afford legal representation — was reasonably made. …
… Furthermore, I consider that the inference alone provides adequate support for the Deputy President’s decision not to make an order under s 62(6), notwithstanding his conclusion that the plaintiff’s case was otherwise outside the ordinary run of cases for the purposes of s 62(6). This is because, as a result of his improved financial circumstances, the plaintiff could reasonably be expected to access legal representation himself as contemplated by s 62(1), such that consideration of s 62(6) was no longer necessary.[9]
[9]Ibid [78]–[79] (emphasis in original).
While thinking it unnecessary to deal with the Deputy President’s consideration of the prospects of success and public interest of the case, the judge noted that VCAT should exercise caution and that s 62(6) seems to be:
directed to remedying disadvantage in very rare and particular circumstances — not to allocating limited resources based on perceived merits or public interest of cases.[10]
[10]Ibid [86].

Grounds of appeal

The proposed grounds of appeal are as follows:
1.Breach of the rules of natural justice — the salient points of law and procedure.
2.The error of law, failure to take into account a relevant consideration (medical ground / exceptional circumstances).
The grounds are broad and difficult to follow. No assistance is gained from the written case.
At the hearing of the application for leave to appeal, the applicant applied for an adjournment, based on a letter from his psychiatrist to the effect that he suffered from depression, stress and anxiety. However, there was no indication as to when his situation would improve. The applicant then agreed to a suggestion from the Court that the application for leave to appeal be dealt with on the papers and the applicant have leave to put in further written submissions by 11 November 2022. Further submissions have been provided and the respondents have declined to respond thereto.[11] The further submissions do not address the judge’s reasons and are of no assistance to the applicant.
[11]Nowicki Carbone filed a notice on 25 February 2022 indicating that it did not intend to respond to the application for leave to appeal. The second respondent (VCAT) filed a Hardiman letter on 4 February 2022 (R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13).
Nevertheless, doing the best we can, we will proceed on the basis that the complaint is that the primary judge should have concluded that the Deputy President of VCAT erred at law, or otherwise exceeded, failed to exercise or wrongly exercised his jurisdiction, in not acceding to the applicant’s application. We will also deal with the other matters raised.

The legislation

Section 62 of the VCAT Act deals with the representation of parties and is in the following terms:[12]
[12]Notes omitted.
(1)      In any proceeding a party—
(a)      may appear personally; or
(b)      may be represented by a professional advocate if—
(i)       the party is a person referred to in subsection (2); or
(ii)another party to the proceeding is a professional advocate; or
(iii)another party to the proceeding who is permitted under this section to be represented by a professional advocate is so represented; or
(iv)all the parties to the proceeding agree; or
(c)may be represented by any person (including a professional advocate) permitted or specified by the Tribunal.
(2)The following persons may be represented by a professional advocate in a proceeding—
(a)      a child;
(b)      a municipal council;
(c)      the State or a Minister or other person who represents the State;
(d)a public entity within the meaning of the Public Administration Act 2004;
(e)the holder of a statutory office within the meaning of the Public Administration Act 2004;
(f)a credit provider within the meaning of the Credit Act 1984;
(g)an insurer within the meaning of the Domestic Building Contracts Act 1995.
(3)A party that is a body corporate may be represented in a proceeding by a director, secretary or other officer except, in the case of a body corporate that is not referred to in subsection (2), a director, secretary or officer who is a professional advocate.
(4)Despite subsection (3), if all officers of a body corporate are professional advocates, one of those officers may represent the body corporate in a proceeding.
(5)If a party is a child, the Tribunal may appoint a litigation guardian, in accordance with the rules, to conduct the proceeding on behalf of the child.
(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.
(7)If a person who is not a professional advocate seeks to represent a party in a proceeding—
(a)if the party is a body corporate, the person must give the Tribunal a certificate of authority for the representation from the body corporate; or
(b)in any other case, the Tribunal may require the person to produce a certificate of authority for the representation from the party.
(8)In this section—
professional advocate means—
(a)      a person who is or has been an Australian lawyer; or
(b)a person who is or has been an articled clerk or law clerk in Australia; or
(c)a person who holds a degree, diploma or other qualification in law granted or conferred in Australia; or
(d)a person who, in the opinion of the Tribunal, has had substantial experience as an advocate in proceedings of a similar nature to the proceeding before the Tribunal—
other than a person who is in a class of persons disqualified by the rules from being a professional advocate.
(9)Rules for the purposes of subsection (8) may only disqualify a class of persons from being professional advocates on the basis that persons in that class—
(a)have been the subject of disciplinary proceedings under the law of Victoria, another State, a Territory or the Commonwealth or under the rules of a professional or occupational association or other body; and
(b)have been found guilty in those proceedings of professional misconduct (by whatever name called) or of another breach of professional or occupational standards.

Analysis

In our opinion, the application is entirely devoid of merit and leave to appeal is refused. There is no error in the conclusion reached by the primary judge.
The Deputy President’s order was made in the exercise of a discretion. When applying to the primary judge to review that exercise of discretion, the applicant was required to establish error in accordance with House v The King.[13] This the applicant has failed to do.
[13](1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ); [1936] HCA 40 (‘House v The King’).
In Pong Property Development Pty Ltd v Strangio, Ashley J stated that one should be ‘very reluctant indeed’ to conclude that a decision of VCAT (which involved the formation of an opinion and the exercise of a discretion) was so unreasonable as to be untenable.[14]
[14](2005) 23 VAR 128, 139–40 [57]; [2005] VSC 217.
In Bradto Pty Ltd v Victoria, this Court observed that the task of identifying error of law in VCAT’s exercise of discretion to grant an interlocutory injunction was ‘a formidable one indeed’.[15] The Court also stated that the application for leave had to be considered by reference to the well-settled principles of law that must be applied by an appellate court when reviewing the exercise of judicial discretion.[16]
[15](2006) 15 VR 65, 67 [4] (Maxwell P and Charles JA); [2006] VSCA 89.
[16]Ibid; See also Dura Constructions (Australia) Pty Ltd v SC Land Richmond Pty Ltd [2006] VSC 428, [7] (Whelan J).
In Guss v Law Institute of Victoria Ltd,[17] this Court observed that the (former) Legal Profession Tribunal’s decision on penalty was made in the exercise of discretion and that, accordingly, the decision fell to be examined by reference to the well-known principles stated in House v The King.
[17][2006] VSCA 88, [28] (Maxwell P, Callaway JA agreeing at [52], Chernov JA agreeing at [53]); See also Lukauskas v Director of Consumer Affairs Victoria (2006) 25 VAR 295, 304 [31] (Harper J); [2006] VSC 388; Buzzo Holdings Pty Ltd v Loison (2007) 26 VAR 112, 119–20 [18] (Kaye J); [2007] VSC 31; Johnson v Director of Consumer Affairs Victoria (2011) 34 VAR 447, 472 [115] (Kyrou J); [2011] VSC 595.
No relevant error in the decision of the Deputy President or in the exercise of his discretion has been identified. All relevant matters were properly taken into account, considered and accorded relative and sufficient weight, as identified by the primary judge.
In Ogawa v University of Melbourne, Morris P made the following observations about the scope and operation of s 62(6) with which we entirely agree:
s 62(6) is premised upon a party being unrepresented in a proceeding. However, subject to this requirement, the language used vests in the tribunal a broad discretionary power to choose to appoint a person to act for such a party. The Act does not insist upon any particular considerations being taken into account in exercising that discretion; rather the power is simply designed to assist the tribunal in promoting the fair conduct of a proceeding.
…
The appointment of a person to represent an unrepresented party is to be considered, not only having regard to the specific facts of the proceeding in question, but also in the wider context of the conduct of tribunal business generally.
…
Bearing in mind the nature of the Tribunal and representation before the Tribunal, the Tribunal acts in a way so as to promote fair procedures. First, the method of bringing cases before the Tribunal is relatively simple; complex pleadings are unnecessary. Secondly, the Tribunal engages a substantial registry staff to assist parties and to perform work which would ordinarily be done by solicitors in courts of law. Thirdly, hearings are conducted in an ordered manner, but with as little formality and technicality as is practicable. Fourthly, the Tribunal is empowered to inform itself on any matter as it sees fit and this power is used to promote the fair conduct of a case as well as to achieve a just outcome according to law. For example, Tribunal members often ask questions or raise issues in order to overcome an inability of a party to articulate its true case.
Bearing in mind the context within which the Tribunal operates, it is not surprising that the power in s 62(6) of the Act to appoint a person to act for an unrepresented party is rarely exercised.
…
In exercising the discretion pursuant to s 62(6) it is not essential for the Tribunal to consider whether there might be some imbalance in power between the parties. …[18]
[18](2005) 22 VAR 344, 346 [15], [17], 347 [21]–[22], 348 [30]; [2005] VCAT 197 (‘Ogawa’).
In Ogawa, VCAT declined to exercise its discretion under s 62(6) to appoint a person to represent the applicant. It did so after noting that the proceedings involved relatively straightforward issues, that they were not in the nature of test cases, that there was no other factor that made the proceedings particularly unusual, and that it did not regard the imbalance in power between the parties to be substantial.[19]
[19]See Jason Pizer, Pizer’s Annotated VCAT Act (JNL Nominees Pty Ltd, 4^th ed, 2012) 220.
The authorities emphasise that there is no automatic right to an advocate, that any such right must be considered and decided on its own facts and circumstances, and that the decision maker has a very broad discretion. Power imbalance does not necessarily affect a fair trial[20] unless the tribunal is unable to comprehend the claims and arguments or the case is extremely complex.
[20]Drummond v Telstra Corporation Ltd (Anti-Discrimination) [2008] VCAT 2630, [74].
The cases referred to in the following passage in Pizer’s Annotated VCAT Act discussing s 62(6) supports the observations made in Ogawa:
In Mitrovski v Containers Packaging Pty Ltd [2000] VCAT 404 the VCAT confirmed that the discretion under s 62(6) should only be exercised where there are circumstances that take the case out of the ordinary run of cases. According to the VCAT, one such circumstance may be where the applicant suffers from particular disabilities. Other circumstances might include the complexity of the case, whether it affects a large class of people, and whether the case could not be put properly without such representation: Messenger v Sisters of The Missionaries of Charity [2000] VCAT 658.
In Mitrovski, the VCAT emphasised that the VCAT Act is designed to establish a tribunal with relatively informal procedures that will ‘on many occasions’ hear parties who are not legally represented. The VCAT went on to observe that there are many ways (which fall short of providing a representative under s 62(6)) in which unrepresented parties can be assisted in tribunal proceedings. First, the registry staff must assist unrepresented parties with applications they may wish to make. Second, the VCAT may take a more active role in proceedings than a court may do. And third, whilst the VCAT must not conduct the unrepresented party's case, it can by its questioning ensure that that party is not disadvantaged in putting his or her case properly.
In Messenger, the mother of the disabled complainant made an application under s 62(6) on the grounds that she was not a lawyer, she had limited education, she would have to look after her daughter when she gave evidence (which would make it difficult to conduct the case) and she could not afford legal assistance. The VCAT refused the application. In doing so, it again emphasised that the VCAT’s procedures are discretionary and much less formal than those of a court. According to the VCAT, some examples of the flexibility of those procedures include granting adjournments where necessary, changing starting and finishing times for hearing, and conducting some parts of the hearing in a more informally set up hearing room. The VCAT found that these factors, together with appropriate questioning by the tribunal during the hearing, would rectify any disadvantage that the complainant’s mother might otherwise suffer in conducting her daughter’s case. The VCAT went on to observe that it expected the respondent’s legal representatives to inform the VCAT (and the complainant’s mother) not only of the cases that supported their submissions, but also of those that did not support them.[21]
[21]Jason Pizer, Pizer’s Annotated VCAT Act (JNL Nominees Pty Ltd, 4^th ed, 2012), 221–22.
In our opinion, it was entirely open to the Deputy President to decline the application. All matters were properly considered and accorded sufficient weight. There was no breach of the rules of natural justice and no failure to take into account the applicant’s medical condition.
Even if it is accepted that the applicant is unable to conduct his own case at VCAT, this does not result in the automatic qualification for legal representation. His case is not complex, he is able to provide instructions, and given the nature of the case and its likely duration, it was entirely open to the Deputy President to infer that he was able in the circumstances to afford legal representation. Not surprisingly, given his unhappy experience with the legal profession, he chooses not to do so.
Finally, having observed the applicant during the hearing before us, we consider, that suitably directed, he is able to conduct his own case.[22] It is not a complex case and will be dealt with by VCAT in the manner described by Morris P in Ogawa. Anxiety, stress and depression are not uncommon conditions experienced by self-represented litigants. Without more, it does not mean that they are unable to conduct their cases, or in the case of Mr Tomasevic, provide instructions. In our view, there is no arguable basis for contending that the judge was in error to refuse the application for judicial review of the Deputy President’s order.
[22]We recognise, of course, that from time to time the applicant’s medical condition may fluctuate.
Accordingly, leave to appeal is refused. We do not propose to make any order as to the costs of the application for leave to appeal.

[2022] VSCA 276

14 December 2022