Tomasevic v All States Legal Co Pty Ltd t/as Nowicki Carbone

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2020 03882

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

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JUDGE:	Incerti J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 November 2021
DATE OF JUDGMENT:	9 December 2021
CASE MAY BE CITED AS:	Tomasevic v All States Legal Co Pty Ltd t/as Nowicki Carbone & Anor
MEDIUM NEUTRAL CITATION:	[2021] VSC 815

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ADMINISTRATIVE LAW – Application for judicial review of VCAT order under s 62(6) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) – Whether Deputy President applied wrong test – Duty to assist self-represented litigant – Mitrovski v Containers Packaging Pty Ltd [2000] VCAT 404 considered – Dobson v Muto (Review and Regulation) (No. 3) [2019] VCAT 167 considered – Application dismissed.

PRACTICE AND PROCEDURE – Appeal from decision of Judicial Registrar not to recuse himself – Apprehended bias – Refusal to adjourn proceeding despite consent of parties – Referral of plaintiff to Associate Judge for capacity assessment – Supreme Court (General Civil Procedure) Rules 2015 (Vic) o 15 – Guardianship and Administration Act 2019 (Vic) s 179 – Appeal nugatory due to matter proceeding to trial without prejudice – No actual or apprehended bias established – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the First Defendant	Mr M Gregg, solicitor for the first defendant	Slater & Gordon Lawyers
For the Second Defendant	No appearance

HER HONOUR:

Before me is:

(a) an application for judicial review of the decision of Deputy President Dwyer (the ‘Deputy President’) of the Victorian Civil and Administrative Tribunal (‘VCAT’) made on 10 August 2020 declining to appoint a pro bono legal representative for the plaintiff under s 62(6) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’) (‘Judicial Review Application’); and

(b) an appeal from the decision of Judicial Registrar Keith (the ‘Judicial Registrar’) made on 29 September 2021 (‘appeal’):

(i) dismissing the plaintiff’s summons seeking that the Judicial Registrar recuse himself and the Court appoint a new judicial registrar or judge experienced in proceedings with self-represented litigants; and

(ii) referring for consideration by an associate judge the application of o 15 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’) to the plaintiff, and whether the Court should refer the matter to VCAT in accordance with s 179 of the Guardianship and Administration Act 2019 (Vic) (‘Guardianship Act’) on the basis that the plaintiff may be in need of a guardian or an administrator.

For the reasons outlined below, I find that the Deputy President did not make any error of law. As for the appeal from the interlocutory decision of the Judicial Registrar, the decision has since been overtaken by subsequent events, including the determination of the plaintiff’s Judicial Review Application, and is now moot. In any event, having considered the appeal, I dismiss it as no actual or apprehended bias was established.

The second defendant has not filed a notice of appearance but filed a letter indicating that it does not intend to take an active role in the proceeding in accordance with the principles in R v Australian Broadcasting Tribunal, Ex parte Hardiman & Ors.[1]
[1](1980) 144 CLR 13, 35.

Judicial Review Application
Background

The first defendant acted for the plaintiff in Supreme Court proceeding SCI 2010 01155 (the ‘Personal Injury Proceeding’) for a period between 2011 and 2013.[2] As detailed further below, the Personal Injury Proceeding was determined in favour of the plaintiff in 2020.
[2]Tomasevic v All States Legal Co Pty Ltd t/as Nowicki Carbone [2020] VCAT 856, [2].

Over the years the plaintiff has initiated a number of ‘satellite’ proceedings in relation to the Personal Injury Proceeding, and has brought a number of unrelated proceedings in various fora. Many of these proceedings are outlined in the schedule to the first defendant’s submissions filed on 29 October 2021.[3]
[3]All States Legal Co Pty Ltd t/as Nowicki Carbone, ‘First Defendant’s (Nowicki’s) Submissions’, Submission in Tomasevic v All States Legal Co Pty Ltd t/as Nowicki Carbone, S ECI 2020 03882, 29 October 2021, 22-25.

In 2016, the plaintiff appealed an unfavourable decision of an associate judge in the Costs Court on the taxation of a bill comprised of barristers fees paid by a third party, the Australian Education Union, in relation to the Personal Injury Proceeding. It appears that the plaintiff’s main grievance was not the quantum of fees, but the fact that the first defendant wrongfully requested (or directed) the Union to pay the barristers’ fees when those funds were to be quarantined so that they would remain available for the trial of his proceeding. In dismissing the appeal, J Dixon J held that ‘[t]he Costs Court is not the appropriate forum for recovery from the defendants of damages, assessed by reference to the barristers’ fees paid by the Union, as a loss occasioned by an alleged negligent discharge of the solicitor’s duty to the plaintiff’.[4]
[4]Tomasevic v Nowicki Carbone & Anor [2016] VSC 501, [31].

The VCAT Proceeding

In 2017, the plaintiff commenced proceedings against the first defendant in VCAT alleging negligence by the first defendant in incurring the barristers’ fees (‘VCAT Proceeding’). By a ‘further amended points of claim’ dated 25 January 2018,[5] the plaintiff claims 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 plaintiff being unable to secure representation after the Union funding had been utilised.
[5]MG-1 to the affidavit of Matthew Greg affirmed 29 October 2021, 29-37.

The VCAT Proceeding was listed for final hearing before Member Josephs on 26 March 2018. Matthew Gregg, solicitor for the first defendant, deposes that his colleague, Catherine Hannebery, appeared at that hearing, which was vacated part-heard following an oral application by the plaintiff for an adjournment, and an application by the plaintiff for Member Josephs to recuse himself.

Member Josephs stayed the VCAT Proceeding until such time as the plaintiff 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 plaintiff submitted a new originating process in VCAT, by way of a new application form. In a handwritten attachment, the plaintiff repeated claims against the first defendant raised in his pleadings in the VCAT Proceeding, and requested 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 plaintiff 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 plaintiff submitted that he is in a position of ‘grave disadvantage’ for the following reasons:

(a) the first defendant is a law firm and is itself represented whereas the plaintiff is unrepresented;

(b) the plaintiff lacks the skills and abilities usually associated with legal professionals;

(c) self-represented litigants such as the plaintiff 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.

The plaintiff also submitted that a trial judge or VCAT member has an overriding duty to ensure a fair trial by reference to Dietrich v The Queen[6] (‘Dietrich’) and various other cases.
[6](1992) 177 CLR 292.

VCAT appears to have treated the plaintiff’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 three 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 Law and Fair Trading Act 2012 is limited to $10,000 …[7]
[7]Although not formally tendered, a copy of the order was provided to the Court by the first defendant on 24 November 2021 as part of a bundle of documents related to and before VCAT in the VCAT Proceeding.

VCAT directions hearing: 4 December 2019

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 plaintiff under s 62(6) of 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.

Before hearing the Judicial Review Application, I requested a copy of the transcript from the hearing of 4 December 2019. The first defendant attended to the request and transcript was provided without any delay.

It appears from the transcript that Mr Tomasevic had already made a separate application under s 62(6) in a different VCAT proceeding, which was also heard by the Deputy President. At the start of the hearing on 4 December 2019, the Deputy President informed the parties that:

As Mr Gregg [solicitor for the first defendant] may not be aware, Mr Tomasevic has made a similar application to me in another proceeding but I think in fairness and for transcript purposes, that application will need to be made in full again today in this proceeding.[8]

[8]Transcript of Proceedings, Milan Tomasevic v All States Legal Co Pty Ltd t/as Nowicki Carbone (Victorian Civil and Administrative Tribunal, J8/2017, Deputy President Dwyer, 4 December 2019) (‘VCAT T’) 01.23-27.

The plaintiff then complained about comments in Senior Member Wentworth’s order to the effect that VCAT may not have jurisdiction to hear his claim. He said that his amended points of claim had been drafted by a senior member of counsel and that the appropriateness of VCAT as a forum for his claim had also been discussed at his unsuccessful costs appeal before J Dixon J.

During his oral submissions on s 62(6) of the VCAT Act, the plaintiff relied heavily on the case of Mitrovski v Containers Packaging Pty Ltd[9] (‘Mitrovski’) and, in particular, the observations of Deputy President McKenzie that:

[T]he discretion under s.62 sub-s.6 should only be exercised where there are circumstances which take the case out of the ordinary run of cases where the parties are unrepresented.

[9][2000] VCAT 404.

The plaintiff also quoted the following passage from Pizer’s Annotated VCAT Act:

According to the VCAT, one such circumstance [which could take a case out of the ordinary run of cases] 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.[10]

[10]Emrys Nekvapil, Pizer’s Annotated VCAT Act (Lawbook Co, 6^th ed, 2017) 250.

The plaintiff submitted that the medical letters attached to his application were evidence of him suffering disabilities of the kind contemplated by s 62(6).

The Deputy President then asked the plaintiff to outline the steps he had taken to obtain pro bono legal representation, noting that ‘it actually assists your case if you have attempted to do that and have been unsuccessful’.[11] The plaintiff said:

… I went firstly to the, very first, this community legal service. They ah, what they call, this is what they told me, this service, community legal service, is the, they helping people about, they says, ah how they says, ah dog and cat law or whatever (Indistinct), whatever assisting people to fill out the form and whatever. They don’t have people qualified there. Most of them who are working there, they are not lawyers. They are some, whatever who’s hunting for the clients who are there, to assist them. And I’ve been there many times. Then after that they say, ‘Okay, we have not enough time, come and see me in my office but you have to pay.’ Just read the documents – $1,000.
So it’s no chance I would see one person, one person in this planet that community legal service help in complex matter like mine. I’ve been (Indistinct words) Legal Aid – you know that. That jurisdiction is to deal with family law and criminal law. They not dealing with my cases – you know that and you are asking me. Then after, I went to this Justice Connect and they told me and I told you many times before and you can check to give you all this information. You don’t trust me, sound is. Then black and white, and I went over there and they says, ‘We can assist you only one hour to prepare you how the court works, and we’re not representing anyone in these court proceedings.’[12]

[11]VCAT T16.15-17 (Deputy President Dwyer).

[12]VCAT T16.26-17.20 (M Tomasevic).

According to the plaintiff, Member Josephs said that he would ‘find the solicitor for you’ at the previous directions hearing.[13] However:

[a]fter three/four months when I called them, they says, they said me here that he [Member Josephs] was on leave and he did not have time or whatever to ah find me solicitor, then after, he disappear from my case …[14]

[13]VCAT T18.14-15 (M Tomasevic).

[14]VCAT T18.18-21 (M Tomasevic).

The plaintiff also referenced what seem to have been additional delays in the VCAT Proceeding, and quoted an email from the VCAT registry that ‘[t]he tribunal wishes to advise you that delay for this matter was caused by a registry administration error and is in no way reflective of any delay caused by the tribunal member.’[15]
[15]VCAT T19.16-20 (M Tomasevic).

The Deputy President then suggested that it was important to consider alternative mechanisms to assist the plaintiff in VCAT, given that:

… for us to appoint a lawyer under 62.6 there would have to be a lawyer willing to be appointed. And that in itself may create some difficulty. We can’t just ring up a law firm or a barrister and say, you’re now representing Mr Tomasevic and by the way no one’s going to pay you, but you’re expected to turn up next week at a hearing. It just doesn’t work as a matter of practice …[16]

[16]VCAT T21.13-20 (Deputy President Dwyer).

The Deputy President raised the possibility of appointing an amicus curiae to assist VCAT in the proceeding. The plaintiff seems to have expressed concern about this on the basis that such a person would be ‘representing both parties’.[17] The Deputy President explained to the plaintiff that the role of an amicus curiae is not to represent either party, but to assist the tribunal.
[17]VCAT T22.14-15 (M Tomasevic).

The plaintiff then asked whether VCAT had been able to contact the ‘mental health legal central service’ in relation to his case.[18] The Deputy President said that the plaintiff’s details had been passed on and that ‘[o]ne of the reasons your other matter has yet to be decided is we’re still waiting on some responses’.[19]
[18]VCAT T21.01-06 (M Tomasevic).
[19]VCAT T23.10-12 (Deputy President Dwyer).

The first defendant reiterated its concern that the plaintiff’s claim fell outside VCAT’s jurisdiction, but confirmed that it was broadly supportive of the application under s 62(6), which might enable the plaintiff to obtain advice on the jurisdictional issue.

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.[20]

[20]VCAT T34.12-19 (Deputy President Dwyer).

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 plaintiff’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 [2]):

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.

VCAT Proceeding: 5 December 2019 to 9 August 2020

Following the directions hearing on 4 December 2019, the first defendant foreshadowed an application for summary dismissal of the VCAT Proceeding. A hearing was listed for 2 April 2020, but was adjourned to a further administrative mention on 15 July 2020 due to the COVID-19 pandemic. On 2 April 2020 the Deputy President made orders on the papers that the first defendant file its summary dismissal application with submissions by 10 June 2020, and that the plaintiff file and serve ‘any initial written response to any application’ by 1 July 2020.

On 20 May 2020, the first defendant wrote to VCAT seeking substitution of the order of 2 April 2020 with an order that the proceeding remained stayed until after the conclusion of the Personal Injury Proceeding, or until the plaintiff provides a certificate from a treating medical practitioner confirming his fitness to participate as a self-represented party or engages a legal practitioner to represent him.

On 23 June 2020, the plaintiff sent an email to VCAT opposing the first defendant’s proposed alternative order and seeking a directions hearing.

On 29 June 2020, VCAT wrote to the parties inviting written submissions on certain issues prior to the administrative mention on 15 July 2020.

On 9 July 2020, judgment was entered in favour of the plaintiff in the Personal Injury Proceeding.[21] The defendant in the Personal Injury Proceeding, the State of Victoria, admitted negligence and the plaintiff 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 plaintiff. 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 plaintiff. The same order required the State of Victoria to pay the plaintiff’s costs on a party/party basis to 31 March 2013, and thereafter on a standard basis.
[21]Tomasevic v State of Victoria [2020] VSC 415.

The plaintiff’s award in the Personal Injury Proceeding is currently being held on trust by the solicitors who ran his trial, Antony, Sdrinis & Co (‘ASC’), the first defendant having ceased to act in 2013. The plaintiff has refused to provide instructions to ASC for the transfer of funds in excess of fees owing due to a costs dispute with ASC, detailed further below.

On 13 July 2020, the first defendant provided responses to VCAT’s questions of 29 June 2020. Relevantly, these included that (at [5]):

Damages since awarded to [the plaintiff in the Personal Injury Proceeding] mean that an order under section 62(6) of the Victorian Civil and Administrative Tribunal Act 1998 is no longer required based on the [plaintiff’s] purported financial hardship.[22]
[22]Although not formally tendered, a copy of the first defendant’s responses to VCAT’s questions was provided to the Court by the first defendant on 24 November 2021 as part of a bundle of documents related to and before VCAT in the VCAT Proceeding.

Decision of the Deputy President: 10 August 2020

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 plaintiff in the VCAT Proceeding.[23] That order is the subject of the Judicial Review Application.
[23]Tomasevic v All States Legal Co Pty Ltd t/as Nowicki Carbone [2020] VCAT 856.

The Deputy President noted that s 62(6) ‘provides a broad discretionary power, but does not require any particular considerations to be taken into account in exercising the discretion. Nor does the section deal with the terms of any appointment.’[24] He then quoted from a prior ruling in a different proceeding involving the plaintiff where he set out the principles discernible from the very few cases that have dealt with s 62(6). In summary, the Deputy President concluded that:

… I do not consider that there is a case made out for VCAT to appoint a pro bono lawyer to represent Mr Tomasevic in this proceeding solely on the basis that the case is complex, or just because the respondent is legally represented.
The more pertinent question here is whether Mr Tomasevic’s mental health condition provides a special circumstance, along with other factors, that would warrant the exercise of the discretion in his favour.[25] [emphasis in original]

[24]Ibid [14].

[25]Tomasevic v All States Legal Co Pty Ltd t/as Nowicki Carbone [2020] VCAT 856 [17]-[18].

In relation to the practical effect of an order under s 62(6), the Deputy President observed that:

If VCAT was to appoint an advocate to represent Mr Tomasevic under section 62(6), the Principal Registrar of VCAT would, for practical purposes, be seeking to access legal representation through the same external bodies that I have mentioned. That is not a simple task. I understand that some general enquiries have been made of the Victorian Bar Pro Bono Scheme, but the matter is unresolved. VCAT could realistically only appoint a lawyer to represent Mr Tomasevic who was willing to do so.[26]

[26]Ibid [25].

The Deputy President concluded that, as a result, 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.[27]

[27]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:[28]

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.

[28]Exhibit MT-B to the affidavit of Milan Tomasevic affirmed 9 November 2021.

Relevantly, the Deputy President’s orders were interim not final orders. In remarks accompanying the orders, the Deputy President noted, amongst other things, that the first defendant had requested that VCAT make a declaration about VCAT’s jurisdiction and/or lift the current stay and list the matter for final hearing based on written submissions only. The Deputy President declined to make those orders given the ongoing proceeding in this Court, and noting that the first defendant had chosen not to pursue its summary dismissal application.

Submissions
Plaintiff’s submissions

On 7 October 2020, the plaintiff filed an originating motion for judicial review of the Deputy President’s order declining to appoint a professional advocate or other person to represent the plaintiff in the VCAT Proceeding under s 62(6) of the VCAT Act. The grounds relied upon are listed as follows:

1. Deputy President Dwyer was in error in declining to appoint the Plaintiff a professional advocate to represent him pursuant to s 62(6) of the Victorian Civil and Administrative Tribunal Act 1998.
2.   Deputy President Dwyer wrongly concluded that the Plaintiff has now received an award of damages in excess of $1 million, and now has the means to pay for his own legal representation.
3.   There was no evidence to support Deputy President Dwyer’s conclusion that I have the means to pay for legal representation.
4.   Deputy President failed to perform his duty to give due assistance to the self-represented litigant, which breaches the rules of natural justice.
5.   Deputy President ignored Practice note PN VCAT 3 – fair hearing, Charter of Human Rights and Responsibilities Act 2006 (Vic) s 24 and s 98(1) and (a) [sic] of the VCAT Act and at Common Law.

In a supporting affidavit filed together with the originating motion, the plaintiff exhibited letters from Dr Hines dated 24 September 2019, 9 December 2019 and 29 June 2020, which he said supported his eligibility under s 62(6) of the VCAT Act. He also deposed that:

On 9 July 2020, His Honour Justice Keogh found in my favour in the Supreme Court Proceedings and I was awarded $1,093,000 in damages. I have not received any of the damages I was awarded as the parties are involved in proceedings in the Costs Court of the Supreme Court of Victoria. I am informed by my solicitor Antony Sdrinis who is representing me on a no-win no-fee basis that the Costs Court proceedings are unlikely to be heard until next year.
I am a pensioner and therefore do not have the means to pay for a private lawyer to represent me in the VCAT Proceedings.[29]

[29]Affidavit of Milan Tomasevic affirmed 6 October 2020, [5]-[6].

At the hearing before me on 26 November 2021, the plaintiff made the following oral submissions:

(a) the Deputy President acted as an advocate for the first defendant at the directions hearing of 4 December 2019, rather than being neutral and independent. The Deputy President demonstrated bias by proactively raising the issue of whether VCAT has jurisdiction to hear the plaintiff’s claim (already noted in Senior Member Wentworth’s order of 24 October 2019), rather than waiting for the first defendant to raise that issue;

(b) the Deputy President failed to apply the correct test in determining whether to appoint a legal representative under s 62(6) of the VCAT Act, by reference to the principles expounded in Mitrovski and subsequent cases considering s 62(6). Specifically, he failed to consider:

(iii) the complexity of the matter;

(iv) the plaintiff’s mental disability and consequent inability to properly represent himself;

(v) the plaintiff’s inability to maintain objectivity given his emotional involvement in the case, which he described as a ‘conflict between my intelligence and my emotions’;[30] and
[30]Transcript of Proceedings, Milan Tomasevic v All States Legal Co Pty Ltd t/as Nowicki Carbone & Anor (Supreme Court of Victoria, S ECI 2020 03882, Incerti J, 26 November 2021) (‘SCT’) 15.26-27 (M Tomasevic).

(vi) the disadvantage to the plaintiff caused by the first defendant being a law firm, and itself being legally represented.

The plaintiff also seemed to suggest that the Deputy President impermissibly considered the practical availability of potential legal representatives when considering his eligibility under s 62(6);[31] and

(c) the Deputy President breached the Charter of Human Rights and Responsibilities Act 2006 (Vic) and various international instruments by failing to assist the plaintiff as a self-represented litigant.

[31]SCT11.03-05; 11.28-31 (M Tomasevic).

The plaintiff also recited what seemed to be generic formulations of grounds for judicial review;[32] however, I do not consider that he articulated any substantive grounds beyond those set out above.
[32]SCT08.14-09.05 (M Tomasevic).

During oral submissions, I asked the plaintiff to confirm whether, at the time of his decision in August 2020, the Deputy President was aware that the plaintiff was in a costs dispute with ASC, and that the plaintiff had refused to accept any distribution of his damages award from ASC’s trust account. This information could not have been provided to the Deputy President at the 4 December 2019 directions hearing given that judgment in the Personal Injury Proceeding had not yet been handed down.

The plaintiff said that he was certain that the Deputy President had that information when he made his decision. However, the only documentary evidence he was able to point to in support of that proposition was a letter from Dr Hines of 6 September 2021 – more than a year after the Deputy President’s decision – which contains the following paragraph:

Mr. Tomasevic also emphasized to me that, since he had completely lost all trust in Mr. Antoniou quite some time ago, at no stage could he have considered accepting an offer for funds from Mr. Antoniou in the absence of an independent court judgement as to what was appropriate in terms of allocation of any funds held in trust.[33]

[33]Exhibit MT-5 to the affidavit of Milan Tomasevic affirmed 27 September 2021.

The plaintiff reiterated this issue before me, noting that ‘I do not trust any … solicitor anymore thanks to … my former solicitor. And I don’t want to accept any from my trust account.’[34]
[34]SCT23.29-31 (M Tomasevic).

When asked about the Deputy President’s state of knowledge at the time of his decision, Mr Gregg submitted that:

He could not have been [aware of the costs dispute] because some of those circumstances, as I understand it, arose after the decision was made. So, on the facts in front of them [sic] at the time bearing in mind that the decision was only made in July and this ruling was made in August, that it was just a recent ruling of a considerable amount of money, and in the ordinary course, a litigant would have access to funds more than sufficient even if there was a costs dispute, as there is in this case, there’s usually access to a small portion of that not subject to any cross-claim that a litigant can access fairly soon after those funds are paid.[35]
[35]SCT49.04-15 (M Gregg).

First defendant’s submissions

The first defendant filed written submissions on 27 May 2021. In summary, the first defendant submitted:

(a) section 62(6) of the VCAT Act vests a broad discretionary power, limited only by VCAT’s obligation to exercise the discretion reasonably. The reasonableness of VCAT’s decision is demonstrated in the multiple reasons outlined by the Deputy President for declining to exercise the discretion in favour of the plaintiff;

(b) it was reasonably open to the Deputy President to infer that the plaintiff had the means to pay for his own legal representation given his damages award of $1,093,000 made on 9 July 2020;

(c) the plaintiff has failed to specify what sort of assistance the Deputy President should have, but failed, to provide him as a self-represented litigant. To the extent it may be directed to the refusal to appoint a pro bono legal representative at the public’s expense, it is misconceived. There is no general right to publicly funded legal representation as an aspect of the requirements of procedural fairness;

(d) the plaintiff’s ground of review based on the Charter of Human Rights and Responsibilities Act 2006 (Vic) and the common law ‘is so vague and unsubstantiated as to be incapable of proper reply’; and

(e) the proper route for challenging a decision of VCAT on a purported error of law is by application for leave to appeal under s 148 of the VCAT Act, not by way of judicial review. The plaintiff’s originating process was filed outside the 28-day time limit for a statutory appeal.

In oral submissions, Mr Gregg noted that the plaintiff’s application under s 62(6) was quite specific, in that he sought only a professional advocate to represent him, and not a friend or family member. He submitted that ‘[t]he challenge that VCAT has is that there simply aren’t resources to provide everyone who could benefit from pro bono legal representation with that service.’[36]
[36]SCT45.29-46.01 (M Gregg).

Mr Gregg also informed the Court that, in practice, s 62(6) is ‘not read as a compulsive power to force VLA [Victoria Legal Aid] or another organisation to provide services, and certainly in his remarks the Deputy President noted that in practical terms you could only really appoint someone who’s agreeing to act in that capacity.’[37]
[37]SCT46.18-23 (M Gregg).

Relevant law

To succeed in his application for judicial review, the plaintiff must establish that there was an error of law made by the Deputy President in declining to appoint a pro bono legal representative for the plaintiff under s 62(6) of the VCAT Act, and that the Court in its discretion should grant a remedy.

Broadly, the error of law can either be the result of the Deputy President denying the plaintiff procedural fairness, or acting in excess of his power or jurisdiction.

Procedural fairness required that the Deputy President provide the plaintiff with an opportunity to present his case in relation to his application under s 62(6) of the VCAT Act, and that there be no appearance that the Deputy President brought to the matter a prejudiced mind.

On the other hand, an act in excess of power or jurisdiction may be established on various grounds including, without limitation, that the Deputy President: considered irrelevant considerations; failed to consider relevant considerations; made his decision for an improper purpose; or made his determination in a manner that is so unreasonable that no reasonable person would have made the same determination.

Analysis

In considering whether the Deputy President erred in his application of s 62(6), it is important to start by examining the section itself.

Section 62 of the VCAT Act is headed ‘Representation of parties’. The section contemplates three types of representation: by a ‘professional advocate’;[38] by a person other than a professional advocate; and self-representation. Subsections (1) to (4) outline the circumstances in which a party is entitled to be represented by a professional advocate. In contrast, sub-ss (5) and (6) outline circumstances in which VCAT may itself appoint a representative – a litigation guardian for a child under sub-s (5), or a representative (whether or not a professional advocate) for an otherwise unrepresented party under sub-s (6). Subsection (7) outlines when representatives who are not professional advocates must provide to VCAT a certificate of authority in relation to their representation.
[38]‘Professional advocate’ is given a broad meaning in s 62(8) and includes: ‘… (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 …’

In Aussie Invest Corporation Pty Ltd v Hobsons Bay City Council[39] President Justice Morris said that:

… It is important to note that the right to be represented by a professional advocate is not absolute. It can be inferred from section 62 that the Parliament intended VCAT to operate without legal representation being the norm.[40]

[39](2004) 22 VAR 212.

[40]Ibid [7].

The President also quoted an excerpt from the relevant second reading speech in support of this proposition. Another section of the second reading speech that was not quoted by the President, but which is relevant for present purposes, indicates that case complexity was intended to factor in VCAT’s assessment of whether representation is required:

Indeed in some complex cases, such as those found in planning and credit jurisdictions, the need for professional advocates may be beneficial to both the parties involved in the matter and the tribunal. However, in other jurisdictions, such as small claims, residential tenancies and domestic building disputes, the role for professional advocates may be more limited and permitted only in appropriate cases thereby minimising costs. It will also ensure that proceedings are less legalistic. The bill establishes an appropriate balance between these competing interests, enabling the tribunal to determine, on a case-by-case basis, the appropriateness of representation. For applicants who are unrepresented, the tribunal, and registry staff, will provide assistance in matters.[41]

[41]Victoria, Parliamentary Debates, Legislative Assembly, 9 April 1998, 974 (Mrs Wade, Attorney-General).

It appears that the only judicial consideration of s 62(6) to date occurred in Muto v Secretary to the Department of Transport, Planning and Local Infrastructure & Ors,[42] where Williams J held that the provision 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.[43] That decision did not require detailed analysis of the function of s 62(6) or the factors VCAT may consider in determining whether to exercise its discretion under s 62(6).
[42][2014] VSC 619.
[43]Ibid [181]-[183].

Those factors have been considered by VCAT in a limited number of cases. While not binding on this Court, those cases illustrate VCAT’s understanding of the purpose and scope of s 62(6), and the factors that have, as a matter of practice, informed the exercise of its discretion. Pizer’s Annotated VCAT Act includes a summary of those cases, which was considered by the Deputy President in his decision, and also quoted by the plaintiff in his submissions before this Court.

A more recent summary of the caselaw on s 62(6) appears in Dobson v Muto (Review and Regulation) (No. 3),[44] where Judge Jenkins (sitting as a senior sessional member) and Sessional Member Gaschk made the following comments (at [37]):

Although there is limited authority on the application of s 62(6), there are clear principles which have emerged.[45] In particular:
a. The Tribunal may decline its powers to exercise discretion under s 62(6) where proceedings involve relatively straightforward issues, not in the order of test cases and there were no other factors making the proceedings particularly unusual. In these cases, the imbalance in power between parties is not substantial;[46]
b. An unrepresented party does not have an “automatic right” to an advocate under s 62(6). The Tribunal has a discretion to appoint an advocate to assist an unrepresented person. However, this discretion should be exercised only where the Tribunal is unable to understand the claims and arguments made by the unrepresented party so that it is unable to decide the case fairly;[47]
c. The power to appoint an advocate under s 62(6) is not exercised as a matter of course. The power is only exercised if the Tribunal considers that the circumstances justify it. Relevant circumstances include the complexity of the case and any real (or perceived) imbalance of powers between the parties. Proceedings at the VCAT are conducted informally and in a way that will make its jurisdiction more easily accessible by unrepresented parties;[48]
d. 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.[49] For instance, where the applicant suffers from particular disabilities or where the case raises particular complexities; and
e. The Tribunal has also emphasised[50] 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 Tribunal may take a more active role in the proceeding than the courts and thus provide greater assistance to parties.[51]

[44][2019] VCAT 167.

[45]Refer also Pizer’s Annotated VCAT Act 6^th Edition Section 62 commentary, in particular at [VCAT.62.320].

[46]Ogawa v University of Melbourne (2005) 22 VAR 344; [2005] VCAT 197 per Justice Morris P.

[47]Burrows v Victoria (unreported VCAT, McKenzie DP, 21 May 1999). In that case, the Tribunal did not appoint an advocate to assist the unrepresented applicant on the basis that: He had an understanding of what was happening; and he was able to formulate his thoughts sufficiently to enable the hearing to continue.

[48]Taylor v RMIT (unreported VCAT, McKenzie DP, 19 October 1998).

[49]Mitrovski v Containers Packaging Pty Ltd [2000] VCAT 404.

[50]In both Mitrovski’s case and Messenger v Sisters of The Missionaries of Charity [2000] VCAT 658.

[51]Section 97 VCAT Act also provides that the Tribunal must act fairly and according to the substantial merits of the case in all proceedings.

This summary 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. The position of sub-s (6) towards the end of the section suggests that it is only in cases where it would be unacceptable for the applicant to appear personally (sub-s (1)(a)) and the applicant is unable to avail himself or herself of the options for representation under sub-ss (1)(b) and (1)(c), that VCAT will ordinarily consider exercising its discretion under sub-s (6). In other words, it is a provision of ‘last resort’.

Furthermore, that VCAT makes the appointment under sub-s (6) (in contrast to s 62(1)(c), where VCAT merely permits representation) suggests that the tribunal may itself have an interest in exercising the power – specifically, to protect its own procedural integrity by remedying unfairness which cannot be remedied by other means.

The case of Mitrovksi, on which the plaintiff relies, lists some of the alternative means of addressing an applicant’s apparent disadvantage which fall short of an appointment under s 62(6):

… First, the Tribunal’s registry staff are required to provide assistance with applications which the unrepresented party might make. Second, the Tribunal, because of its discretionary procedures, is able to take a more active role in proceedings than a court might do.
Thirdly, the Tribunal can by its questioning ensure that the unrepresented party is not disadvantaged in putting his or her case properly before the Tribunal …[52]

[52]Mitrovski v Containers Packaging Pty Ltd [2000] VCAT 404.

Mitrovski suggests that it is only in circumstances where, notwithstanding the tribunal’s provision of other assistance, a self-represented litigant remains at a particular disadvantage, that the case will fall outside ‘the ordinary run of cases’[53] and thereby engage s 62(6).
[53]Mitrovski v Containers Packaging Pty Ltd [2000] VCAT 404.

The principle in Dietrich, relied on by the plaintiff, applies only to indigent persons charged with serious criminal offences; it does not apply to civil proceedings. However, to the extent Dietrich may be regarded as a manifestation of the rules of procedural fairness, I consider that the application of s 62(6) is similarly limited to those very rare scenarios where a litigant would be denied procedural fairness by the mere fact of being unrepresented.

Turning now to the decision in question, it is clear that the Deputy President’s approach to s 62(6) was broadly consistent with the principles set out above. To the extent those principles constrain VCAT’s discretion under s 62(6) (and expound a ‘test’ to be applied under that subsection), they were correctly identified by the Deputy President.

It is also clear that the Deputy President concluded that the plaintiff’s disabilities, evidenced by the medical letters before the tribunal, constituted special circumstances of the kind which might take his case outside the ordinary run of cases involving self-represented litigants and therefore within the ambit of s 62(6). In particular, the Deputy President noted that:

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 …[54]

[54]Tomasevic v All States Legal Co Pty Ltd t/as Nowicki Carbone [2020] VCAT 856, [28].

However, the Deputy President did not conclude his analysis there. Rather, he considered that, because the plaintiff’s application was specifically for pro bono representation, the tribunal was entitled to consider factors that typically inform prioritisation of pro bono resources, in particular:

(a) the applicant’s prospects of success;

(b) whether there is a ‘public interest’ in the litigation; and

(c) the financial circumstances or level of disability of the party seeking representation.

In declining to exercise his discretion under s 62(6), the Deputy President concluded, by reference to the factors above, that:

(a) the plaintiff’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;

(b) the plaintiff’s proceeding is not a matter of general ‘public interest’; and

(c) as the plaintiff has now received an award of damages in excess of $1 million, he now has the means to pay for his own legal representation if he is minded to do so.

These factors do not appear to have been considered before by VCAT in the context of s 62(6).

I will begin by considering the third of these factors. 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. As noted by Mason CJ in Australian Broadcasting Tribunal v Bond:

… [A]t common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference – in other words, the particular inference is reasonably open – even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.[55] [emphasis in original]

[55](1990) 170 CLR 321, 356.

In my view, the inference made by the Deputy President was neither illogically drawn, nor one that was not reasonably open. 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.

There was no material before this Court to suggest that the Deputy President was aware of the plaintiff’s costs dispute with ASC and his refusal to access his damages award until that dispute is resolved. Mr Gregg submitted that this was also unlikely given the brevity of time between the plaintiff’s award of damages on 9 July 2020 and the Deputy President’s decision on 10 August 2020. Thus, there is no evidence that the Deputy President disregarded a relevant consideration (the ASC costs dispute) in his assessment of the plaintiff’s application.

I also note that, on 13 July 2020, the plaintiff was copied to an email from the first defendant to VCAT attaching the first defendant’s responses to VCAT’s questions of 29 June 2020. Relevantly, these included that (at [5]):

Damages since awarded to [the plaintiff in the Personal Injury Proceeding] mean that an order under section 62(6) of the Victorian Civil and Administrative Tribunal Act 1998 is no longer required based on the [plaintiff’s] purported financial hardship.[56]

[56]Although not formally tendered, a copy of the first defendant’s responses to VCAT’s questions was provided to the Court by the first defendant on 24 November 2021 as part of a bundle of documents related to and before VCAT in the VCAT Proceeding.

It is unclear whether the plaintiff read this submission or sought to respond to it before the Deputy President made his decision on 10 August 2020. There was certainly no evidence before this Court that he did. For completeness, I do not consider that procedural fairness required the Deputy President to specifically draw this submission to the plaintiff’s attention, or invite his submissions in reply. The first defendant’s response to VCAT’s questions was only three pages long, and the plaintiff had ample time to respond to those submissions before the Deputy President made his decision on 10 August 2020.

As a result of my conclusions above, it is strictly unnecessary for me to consider whether the Deputy President was entitled to consider the applicant’s prospects of success and the ‘public interest’ of his case when determining whether to exercise the discretion under s 62(6). While VCAT’s discretion is undoubtedly broad (and not expressly circumscribed by ‘relevant’ and ‘irrelevant’ considerations), I nevertheless consider that the tribunal should exercise caution in considering the perceived merits of a party’s case when determining whether an identified disadvantage should be remedied under s 62(6).

As noted above, the Deputy President accepted that the plaintiff was at a disadvantage as the result of his disabilities. Furthermore, the terms of the stay in place since 2018, and extended by the Deputy President, suggest that VCAT considered that the plaintiff’s disadvantage could only be remedied by legal representation (and not by informal assistance from the tribunal). In these circumstances (and putting to one side the question of financial capacity), to deny the plaintiff legal representation would also be to deny him the opportunity to prosecute his case. In the present case, justifying that result by reference to the merits (or lack thereof) of the plaintiff’s claim is arguably akin to summarily dismissing his case.

While it is no doubt true that the availability of potential ‘appointees’ under s 62(6) is subject to significant resourcing constraints, the evidence indicates that those resources are not VCAT’s resources and thus, those constraints are not VCAT’s constraints. As noted by the Deputy President, VCAT cannot compel a lawyer to act under s 62(6). While it is certainly curious that the VCAT Act vests a power of appointment in the tribunal when the availability of potential appointees is outside the tribunal’s control, that lack of control may itself cast doubt on whether the tribunal is entitled or empowered to act as a ‘gatekeeper’ to those appointees based on its own conclusions about the merits of the cases before it. The organisations that are practically able to provide an ‘appointee’ under s 62(6) are arguably better placed to prioritise cases (including, but not limited to, those referred by VCAT), in contrast to the tribunal itself, whose perceived ability to adjudicate fairly may be undermined by expressing views on the merits of a case outside an application for summary dismissal or interim relief.

It is also worth noting that the existing VCAT decisions summarised above all seem to regard s 62(6) as directed to remedying disadvantage in very rare and particular circumstances – not to allocating limited resources based on the perceived merits or public interest of cases. While it is conceivable that both objectives may legitimately factor in the tribunal’s exercise of its discretion (particularly given the lack of express legislative constraints on that discretion), it is less clear that the latter could ever override the former once a positive finding of particular and otherwise irremediable disadvantage has been made.

In a case where such disadvantage is made out, but no appointee is available, the appropriate course might be to determine that no order is possible at the present time, rather than to conclude that the applicant is ineligible for an appointment under s 62(6).

In relation to the other submissions made by the plaintiff:

(a) I am not satisfied that the Deputy President failed to consider the complexity of the VCAT Proceeding, the plaintiff’s mental disabilities, the plaintiff’s inability to maintain objectivity, or the disadvantage to the plaintiff caused by the first defendant being a law firm, and itself being legally represented. On the contrary, the evidence indicates that he did have regard to these factors;

(b) I do not accept that the Deputy President acted as an advocate for the first defendant at the directions hearing of 4 December 2019 by raising the issue of VCAT’s jurisdiction to hear the plaintiff’s claim. On the contrary, reiterating the issue of jurisdiction (which was, and remains, a live issue) was entirely appropriate at the directions hearing;

(c) there is no evidence that the Deputy President failed to discharge his duty to assist the plaintiff as a self-represented litigant. The transcript from 4 December 2019 indicates that adequate assistance was provided. Contrary to the plaintiff’s submission, I consider that the fact of the hearing being comprised mainly of discussions between the Deputy President and the plaintiff is evidence of that support; and

(d) I do not consider that the VCAT practice note on fair hearings, the Charter of Human Rights and Responsibilities Act 2006 (Vic) or the various international instruments referenced by the plaintiff serve to expand the Deputy President’s existing duty to assist the plaintiff, which, as noted above, was adequately discharged.

Finally, I note that there are material differences in the medical evidence that was before the Deputy President and the medical evidence now before this Court, due to developments in Dr Hines’s articulation of his opinion regarding the plaintiff’s ability to run his own case. Whereas Dr Hines’s previous opinion seemed to be that the plaintiff was incapable of representing himself, his letter of 20 September 2021 is more circumspect:

… [A]t no time during my clinical work with Mr. Tomasevic since 2017, have I had cause to think he is incapable of managing his affairs in relation to any matter or proceeding. My view is that nothing has changed regarding this, and that he remains quite capable of managing his affairs in relation to the matter before the courts, provided he is given fair and sufficient time to prepare himself regarding documentation, and given that it seems that he needs to represent himself, having continued to try to find appropriate representation, but, so far, without success, as I understand it.[57] [emphasis added]

[57]Exhibit MT-1 to the affidavit of Milan Tomasevic affirmed 27 September 2021.

Accordingly, were the plaintiff to submit a new application under s 62(6) with fresh evidence about his costs dispute with ASC, it might be concluded that he no longer satisfies the threshold requirement of suffering a disadvantage that cannot be remedied by means other than legal representation. Other potential mechanisms to address his disadvantage, such as reasonable extensions of time or appointment of an amicus curiae, might also need to be revisited. Of course, those would be matters for VCAT if and when the issue is raised.

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.

I now turn to the appeal from the order of Judicial Registrar Keith in this proceeding.

Appeal
Background

By his notice of appeal filed on 29 October 2021, the plaintiff appeals the Judicial Registrar’s order dated 29 September 2021.

On 2 December 2020, the Judicial Review Application was first listed for directions before the Judicial Registrar. At that hearing the Judicial Registrar made timetabling orders towards a trial date of 26 November 2021.

Under the timetable, the plaintiff was due to file and serve any further affidavits by 5 March 2021, and his written submissions and list of authorities by 16 April 2021. He did not file any further affidavits nor any submissions.

On 27 May 2021, the first defendant filed its submissions in relation to the Judicial Review Application. Under the timetable the plaintiff was due to file and serve any written submissions in reply by 9 July 2021.

The timetable also required the plaintiff to prepare a draft court book and serve it on the first defendant by 6 August 2021 and then, following any additions made by the first defendant by 20 August 2021, file and serve the final court book by 3 September 2021.

On 1 September 2021, the Judicial Review Application was mentioned before the Judicial Registrar for an update about the plaintiff’s outstanding material. The plaintiff did not appear. At the hearing, the solicitor for the first defendant informed the Court that the plaintiff told him by phone that he was unable to attend due to a medical condition, and that he would provide evidence of his condition to the Court directly. No such medical evidence was before the Court when the hearing was conducted. The Judicial Registrar adjourned the hearing to 15 September 2021, and indicated in Other Matters to his order of that date that the plaintiff should provide medical evidence to the Court as soon as practicable.

By email to the Court dated 1 September 2021, the plaintiff provided a letter from Dr Hines dated 30 August 2021. In that letter Dr Hines appears to address both the Court and the Costs Court in relation to upcoming hearings. He highlights the compounding impact of having both matters on foot and notes that he is:

… extremely concerned about [the plaintiff’s] mental health, and the depression and anxiety he has been dealing with over the past 23 years or so, as a result of workplace injury. I continue to be concerned about the possibility of his symptoms worsening at times of increased stress.
In the last 2 to 3 weeks, Mr Tomasevic’s panic attacks have apparently increased considerably in frequency and length, especially in the mornings and afternoons.
…
I also understand that the task of preparing the court book has been, for Mr Tomasevic an extremely onerous one, not least because of the great quantity of documents he must consider.
…
For these reasons, I would like to plead, in the strongest possible terms, that a suitable extension of the time be given to Mr Tomasevic to prepare his court books adequately for these cases, since it seems that his panic attacks have prevented him from being able to prepare the documents sufficiently in the time previously given. [58]

[58]Exhibit MT-4 to the affidavit of Milan Tomasevic affirmed 24 September 2021.

The mention remained listed for 15 September 2021. Following receipt of a new letter from Dr Hines dated 13 September 2021[59] (the ‘13 September letter’), the first defendant consented to an adjournment of four weeks, but flagged the potential risk to the trial date of 26 November 2021.[60] The 13 September letter states, amongst other things, that the plaintiff’s mental health remains unchanged from 30 August 2021, and asks that the plaintiff be given ‘a generous extension’ beyond the 15 September 2021 hearing.[61]
[59]Exhibit MT-6 to the affidavit of Milan Tomasevic affirmed 24 September 2021.
[60]Exhibit MT-8 to the affidavit of Milan Tomasevic affirmed 24 September 2021.
[61]Exhibit MT-6 to the affidavit of Milan Tomasevic affirmed 24 September 2021.

The plaintiff deposes that he provided a copy of the 13 September letter to the Court;[62] however, it is unclear when that occurred. A Court officer sent an email to the parties at 5:07pm on 14 September 2021,[63] noting that the Court was open to granting an adjournment if the parties could agree on a return date. On the morning of 15 September 2021, the plaintiff wrote to the Court asking if an appearance was required. A Court officer responded that as parties had not specified a date to which the mention could be adjourned by consent, the hearing would proceed before the Judicial Registrar at 9:30am.[64]
[62]Affidavit of Milan Tomasevic affirmed 24 September 2021, [2(b)].
[63]A copy of that email was not before the Court in this hearing.
[64]Exhibit MT-9 to the affidavit of Milan Tomasevic affirmed 24 September 2021.

The hearing did proceed that day, with the parties appearing remotely. A copy of the transcript of that hearing was not before me. The Judicial Registrar’s orders made that day record in Other Matters that the plaintiff had provided a medical certificate, but had not filed further affidavit material or written submissions in support of the Judicial Review Application. Most relevantly the Judicial Registrar noted:

E. The plaintiff has relied on medical certificates but has not provided affidavit evidence or a medical report to address the ability of the plaintiff to manage his affairs and these proceedings. The submissions made by the plaintiff today raise questions as to whether the plaintiff is incapable of managing his affairs in relation to this proceeding, and consequently a person under disability as defined in Order 15 of the Rules.
F. The Court has asked the plaintiff to provide evidence of his medical condition and capacity to manage his affairs in order to consider the application of Order 15 and also whether it is necessary to refer the issue to VCAT in accordance with section 179 of the Guardianship and Administration Act 2019 on the basis that the plaintiff may be in need of a guardian or an administrator.

The Judicial Registrar ordered the plaintiff file affidavit evidence in relation to his medical condition and his capacity to manage his affairs in relation to the Judicial Review Application by 27 September 2021, and listed the matter for a directions hearing on 29 September 2021.

On 28 September 2021, the plaintiff filed a summons seeking that the Judicial Registrar recuse himself and the Court appoint a new judicial registrar or judge experienced in proceedings with self-represented litigants. In his affidavit in support the plaintiff exhibited a further letter from Dr Hines dated 20 September 2021.

The affidavit sets out a mix of allegations of fact and law. While the allegations are imprecise, they relate to the Judicial Registrar’s conduct at or leading up to the mention on 15 September 2021, and the order of that date. In particular, the plaintiff appears to allege that:

(a) there were no grounds for the Judicial Registrar to doubt the plaintiff’s ability to manage his affairs;

(b) the Judicial Registrar failed to discharge his duty to assist the plaintiff as a self-represented litigant by:

(vii) unreasonably refusing the plaintiff’s requests for extensions of time to submit various documents; and

(viii) declining to adjourn the directions hearing on 15 September 2021 despite that course not being opposed by the first defendant; and

(c) therefore, the Judicial Registrar should recuse himself.

The summons was heard along with directions on 29 September 2021 by the Judicial Registrar.

The oral submissions made by the plaintiff on 29 September 2021 included what appear to be several generic grounds for judicial review of the Judicial Registrar’s order of 15 September 2021, but did not materially expand on the substantive points above.

In response, the first defendant noted briefly that the plaintiff had failed to show actual or apprehended bias by the Judicial Registrar, and that it would be incorrect to ‘accede too readily to an unfounded suggestion that a person recuse themselves, simply seeking to disqualify a member of the court for the purpose of having it tried by someone they consider to be more sympathetic.’[65] The first defendant also flagged the making of one or more applications, including an application under the Vexatious Proceedings Act 2014 (Vic).
[65]Transcript of Proceedings, Milan Tomasevic v All States Legal Co Pty Ltd t/as Nowicki Carbone & Anor (Supreme Court of Victoria, S ECI 2020 03882, Keith JR, 15 September 2021) (‘JRT’) 3 (M Gregg).

The Judicial Registrar declined to recuse himself. In his ex tempore ruling the Judicial Registrar stated that:

… I can indicate that I refuse the application to recuse myself. On 15 September, I made an order that the plaintiff provide an affidavit setting out his medical conditions … I did so because the plaintiff had sought to rely on medical certificates that had not been provided in affidavit form and it was appropriate that the court request evidence in relation to the medical circumstances relied on by the plaintiff.
By the application filed on 28 September, the plaintiff seeks that I recuse myself on the basis that the order made requiring a medical affidavit was unreasonable. I do not consider there is any merit in that submission or that it warrants that I recuse myself.
In a recent decision of the Court of Appeal, the Supreme Court of Victoria Court of Appeal in Carroll v Goff [2021] VSCA 267, the Court of Appeal confirmed its position that in dealing with self-represented litigants it is necessary and appropriate for the court to take into account, not only the interests of both litigants but also the public interests in determining the orders that need to be made. On that basis, I refuse the summons that I should recuse myself from the proceedings.[66]

[66]JRT5-6 (Keith JR).

In Other Matters to his order of 29 September 2021, the Judicial Registrar also noted:

D.On 29 September 2021 the plaintiff submitted that Court’s orders of 15 September 2021 requiring him to file and serve any affidavits in relation to his medical conditions and his capacity to manage his affairs in relation to this proceeding were unreasonable and unlawful and as a result, Judicial Registrar Keith ought to recuse himself from the proceeding.
E. Judicial Registrar Keith made the orders on 15 September 2021 because the plaintiff had sought to rely on medical certificates that had not been provided in affidavit form and it was appropriate that the Court require evidence in relation to the medical circumstances relied on by the plaintiff. The Court read the plaintiff’s affidavit affirmed on 27 September 2021.
F. In the circumstances, there is no merit in the plaintiff’s submission that Judicial Registrar Keith recuse himself. In the recent decision of Carroll v Goff [2021] VSCA 267 the Court of Appeal confirmed its position that in dealing with self-represented litigants, it is necessary and appropriate for the court to take into account the interests of the litigants but also the public interest in determining the orders to be made. On that basis, Judicial Registrar Keith refused the plaintiff’s application that he recuse himself from the proceeding.

The Judicial Registrar made orders listing the question of whether o 15 of the Rules applied to the plaintiff and whether the Court should refer the plaintiff to VCAT under s 179 of the Guardianship Act before an associate judge on 4 November 2021. At the first defendant’s request, the Judicial Registrar also granted leave for the first defendant to file and serve any application ahead of that hearing date.

The same day the plaintiff filed the current appeal. While the grounds are, again, unclear, the following themes are evident – that the Judicial Registrar:

(a) had insufficient regard to the plaintiff’s mental health when raising the issue of guardianship and administration;

(b) did not properly consider the plaintiff’s filed materials by determining his application for recusal on the same day;

(c) failed to discharge his duty to assist the plaintiff as a self-represented litigant (for the same reasons outlined above), and thereby denied the plaintiff procedural fairness; and

(d) applied the wrong test in determining whether he should recuse himself.

The first defendant filed an affidavit of Matthew Gregg affirmed 29 October 2021 and submissions of the same date. On 4 November 2021, Irving AsJ heard oral submissions in relation to whether the plaintiff has a ‘disability’ within the meaning of o 15 of the Rules, and whether the Court should refer the matter to VCAT in accordance with s 179 of the Guardianship Act. At the hearing, his Honour enquired whether he should first determine the appeal from the Judicial Registrar. Both parties requested that he proceed only in relation to the matters raised under o 15 of the Rules and s 179 of the Guardianship Act.

On 5 November 2021, his Honour gave his ex tempore ruling, concluding that no order under o 15 nor any referral under the Guardianship Act should be made. He relevantly held that:

Z.My impression of Mr Tomasevic is that he understands the factual framework of his claim, he understands what is relevant to the proceeding when that is explained to him and he is capable of comprehending and responding to the submissions made by the defendant’s legal representative.
AA.The evidence before the Court at this time and my direct experience of Mr Tomasevic at the hearing do not, in my opinion, support either the appointment of a litigation guardian under order 15 of the Rules or a referral to VCAT under s 179 of the Guardianship and Administration Act 2019.

His Honour also made orders for the filing of affidavits and submissions in support of, or opposition to, the plaintiff’s appeal, listed along with the trial of the Judicial Review Application on 26 November 2021.

The plaintiff relies on an affidavit affirmed on 9 November 2021 which largely restates the grounds in the notice of appeal. Exhibited to that affidavit is further medical material relied upon by the plaintiff, including a letter from his general practitioner Dr Raymond Khoo dated 10 November 2021, which states that the plaintiff ‘has long standing symptoms of anxiety and chronic depression’, and confirms his medication regime and care under Dr Hines and Dr Brendan Hyland.[67]
[67]Exhibit MT-1 to the affidavit of Milan Tomasevic affirmed 13 November 2021.

Relevant law

A decision, order or ruling of a judicial registrar may be appealed to a single judge of the Court pursuant to r 84.05 of the Rules. The appeal is conducted by way of a hearing de novo.[68] The appeal is determined on the material before the judge, so can include new evidence not before the judicial registrar.[69] The powers on such an appeal ‘may be exercised regardless of error’.[70] The judge determines the appeal ‘without being fettered by the decision of the Judicial Registrar, though giving such weight to that decision as appears proper.’[71]
[68]Supreme Court (General Civil Procedure) Rules 2015, r 84.05(4); Bendigo and Adelaide Bank Limited v Grahame [2020] VSC 86.
[69]Bendigo and Adelaide Bank Limited v Grahame [2020] VSC 86, [18] (citations omitted).
[70]Allesch v Maunz (2000) 203 CLR 172, 180 [23] (Gaudron, McHugh, Gummow and Hayne JJ).
[71]Bendigo and Adelaide Bank Limited v Grahame [2020] VSC 86, [18] (citations omitted).

The principles relevant to determination of the question of recusal flow from the judicial officer’s obligation to disqualify themselves where there is actual bias or a reasonable apprehension of bias.[72] A claim of actual bias requires proof that the decision maker had a closed mind or had prejudged the issues because of some partiality in favour of a party or some prejudice.[73]
[72] R v Watson; Ex parte Armstrong (1976) 136 CLR 248.
[73]In re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700, [37]-[39].

The test for apprehended bias is whether, in all the circumstances, a fair-minded lay observer with knowledge of the material objective facts might entertain a reasonable apprehension that the judicial officer might not bring an impartial and unprejudiced mind to the resolution of the question in issue.[74]
[74]Webb v The Queen (1994) 181 CLR 41, 67-68 (Deane J); Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 350 [33] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

There are two steps to the analysis:

First, one must identify what it is that might lead a decision-maker to decide a case other than on its legal and factual merits. What is said to affect a decision-maker’s impartiality? Partiality can take many forms, including disqualification by direct or indirect interest in the proceedings, pecuniary or otherwise; disqualification by conduct; disqualification by association; and disqualification by extraneous information … Second, a logical connection must be articulated between the identified thing and the feared deviation from deciding the case on its merits. How will the claimed interest, influence or extraneous information have the suggested effect?[75]

[75]CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76, 98-99 [57] (Nettle and Gordon JJ) (citations omitted).

The hypothetical observer applying the analysis has been described as:

… (1) taken to be reasonable; (2) does not make snap judgments; (3) knows commonplace things and is neither complacent or unduly sensitive or suspicious; (4) has knowledge of all the circumstances of the case; and (5) is an informed one who will have regard to the fact that a judicial officer’s training, tradition and oath or affirmation, equip the officer with the ability to discard the irrelevant, the immaterial and the prejudicial …[76]

[76] Martin v Norton Rose Fulbright Australia (No 2) [2020] FCAFC 42, [21] (Besanko, Flick and Abraham JJ).

A judicial officer must not be too ready to disqualify themselves for alleged apprehended bias unless substantial grounds are established.[77]
[77]Re JRL; Ex parte CJL (1986) 161 CLR 342, 352 (Mason J).

Interlocutory rulings or expressions ought not to be regarded as giving rise to a reasonable apprehension of bias unless they indicate a significant level of prejudgment in relation to matters relevant to the final resolution of the proceedings.[78] It has also been observed that:

Ordinary judicial practice today also involves increased case management, more interlocutory applications and decisions, and therefore more occasions on which judges are expected to express views on issues in dispute. Such views may reflect a tendency of mind or preliminary assessment on the material before the judge, but they do not necessarily indicate prejudgment.[79]
[78]Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, 100 (Gaudron and McHugh JJ).
[79]Mandie v Memart Nominees Pty Ltd (No 3) [2016] VSC 267, [76] (McMillan J), affirmed on appeal in Mandie v Memart Nominees Pty Ltd [2017] VSCA 177.

Analysis

The plaintiff pursues his appeal only in relation to the Judicial Registrar’s decision not to recuse himself. The plaintiff was content to have the matters before Irving AsJ determined on 4 November 2021, prior to this appeal. The plaintiff’s oral submissions before me all related to the recusal decision.

Because the appeal proceeds as a hearing de novo, the question to be determined is whether the Judicial Registrar should now be recused, not whether the Judicial Registrar made an error of law by failing to recuse himself on 29 September 2021.

I understood the plaintiff’s submissions to be that the Judicial Registrar:

(a) should have, either before or at the hearing on 15 September 2021, adjourned the hearing or granted him an extension of time to prepare the court book, in light of:

(ix)his uncontested medical evidence;

(x) the fact that he was self-represented;

(xi)his involvement in a proceeding in the Cost Court; and

(xii) the first defendant’s consent; and

(b) by failing to do so, displayed actual or apprehended bias against the plaintiff.

The first defendant made very brief oral submissions. It was its position that the appeal was otiose, as the matter had proceeded to trial in the meantime. Even if the appeal could have any effect, the plaintiff had not demonstrated that there was any actual or apprehended bias. The first defendant submitted that o 84 provides ‘a process through which [the decision] can be revisited and remade by a judge exercising that supervisory role that they play’,[80] such that it is more appropriate to seek a rehearing before a judge rather than seek that the judicial registrar recuse themselves.
[80]SCT55.04-07 (M Gregg).

There is significant force to the first defendant’s argument that this appeal is nugatory, given the plaintiff’s substantive application for judicial review has now been heard. There are no future hearings in this proceeding at which the plaintiff would be required to appear before the Judicial Registrar, and so no practical effect to any disqualification. In effect, the plaintiff seeks an advisory opinion on an interlocutory question. That there is no meaningful relief available on this appeal renders it an entirely artificial and inappropriate exercise. As such, it would have been appropriate to exercise my discretion to permanently stay the appeal without consideration of the merits.[81]
[81]See Rich v Harrington (2007) 245 ALR 106 ; Bonan v Hadgkiss (2007) 160 FCR 29.

However, for the sake of finality, I have considered the merits of the appeal. I do not consider the Judicial Registrar should have recused or disqualified himself and accordingly, I dismiss the appeal.

There is no evidence that the Judicial Registrar demonstrated actual bias against the plaintiff. Nor did the plaintiff clearly identify, either before the Judicial Registrar or before me, how his concerns about the Judicial Registrar’s conduct across a number of directions hearings is said to satisfy the two-stage legal test for apprehended bias.

The plaintiff asserts the Judicial Registrar prejudged him as a self-represented litigant who was vexatious, rude and recalcitrant and/or did not have legal capacity to prosecute his case and required some kind of intervention.

The plaintiff appears to contend that such prejudgment created a risk that the Judicial Registrar would make decisions other than on their legal or factual merits.

His principal grievance is that the Judicial Registrar did not afford him more time to prepare his case, in circumstances where he says it was reasonable to do so. Extrapolating from this, the claim is that a fair-minded lay person would see this decision as motivated by frustration or exacerbation with him and/or a belief that he could not manage the litigation, rather than the objective merits of the request. He considers that the Judicial Registrar disregarded the first defendant’s consent, and appeared to acted capriciously by treating ‘[t]he decision to adjourn a matter [as] one which rests with the Court’.[82]
[82]Exhibit MT-9 to the affidavit of Milan Tomasevic affirmed 9 November 2021.

A fair-minded lay person would, however, understand the Judicial Registrar’s obligations under the Civil Procedure Act 2010 (Vic), and the importance of case management principles to a judicial registrar’s role in setting directions and determining interlocutory applications in busy lists of this Court.[83] The Judicial Registrar’s decision not to adjourn the directions hearing or grant an extension can be understood in the context of:
[83]Civil Procedure Act 2010 (Vic) ss 47-48; r 84.02(3)(a)(i) of the Rules states that a judicial registrar may hear and determine an application under or ‘a matter constituted by a proposed exercise (whether on the Court’s own motion or otherwise) of the Court’s powers under s 47 of the Act; r 84.02(3)(a)(ii); rr 56.04 and 56.05 read with r 84.02(3)(a)(iv).

(a) the lateness of the request and the time elapsed since the plaintiff was due to file submissions and the court book;

(b) the proceeding having been on foot since 7 October 2020, with a trial date listed on 26 November 2021;

(c) the importance of maintaining a trial date, where possible, given the pressures on listings in the Judicial Review and Appeals List, and the likelihood that the trial could not be relisted for 10 months or more; and

(d) the negative impacts of delaying the trial date, including prolonging the strain on the plaintiff’s mental health, delaying an outcome and certainty for the first defendant, and further delaying the hearing of the underlying VCAT Proceeding, which has been on foot since 2017 and which has been stayed pending the outcome of this proceeding.

In Russell v Eaton,[84] Kyrou JA heard an appeal by a self-represented litigant from a decision of McDonald J on the basis that, amongst other things, his Honour erred in failing to recuse himself, and in refusing to adjourn the trial.[85] Justice McDonald stated, in his reasons for declining to recuse himself:

I am not satisfied that a reasonable bystander might apprehend that I might not be impartial from my conduct during the directions hearing on 26 April 2019. I expressed a desire that the matter be set down for hearing as quickly as possible, consistent with the overarching purpose of the Civil Procedure Act to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.[86]

[84][2020] VSCA 249.

[85][2020] VSC 464.

[86][2020] VSC 464. [28] (citations omitted).

In upholding that decision, Kyrou JA commented:

… The hearing was a directions hearing to deal with case management issues, such as the trial date and any outstanding interlocutory procedures that needed to be completed prior to trial. The merits of the judicial review proceeding did not fall to be determined at the directions hearing.[87]
…
… the issues the judge had to determine on 26 April 2019 were case management issues. Despite initially expressing a strong view about the trial being fixed promptly, as the directions hearing progressed, the judge explored at length with the applicant his reasons for seeking an adjournment and addressed those reasons fairly and impartially. He also informed the applicant that he could make a further application for an adjournment on 27 May 2019. The applicant acknowledged this by stating ‘Well, that may be the avenue’.
… there were certain times during the directions hearing on 26 April 2019 at which the applicant and McDonald J clashed. However, a fair-minded lay observer present at the directions hearing would not reasonably apprehend that the judge might not bring an impartial mind to the resolution of the case management issues he was required to decide. Rather, a fair-minded lay observer would conclude that the judge was seeking to ensure that the hearing was conducted respectfully and efficiently, and that the applicant remained focused on what was relevant to the proceeding.[88]

[87][2020] VSCA 249, [76].

[88]Ibid [93]-[94].

Similar factors informed the Judicial Registrar’s decision-making here. The decision should also be seen in the context of the untested medical evidence before the Judicial Registrar at the time. Dr Hines’s letters stated that the plaintiff was experiencing escalating panic attacks and worsening symptoms of his longstanding depression and anxiety which were preventing him from preparing for his case in this Court and in the Costs Court.[89] In those circumstances, the Judicial Registrar’s concerns about the plaintiff’s ability to manage the proceeding unassisted were legitimate.
[89]Exhibit MT-4 to the affidavit of Milan Tomasevic affirmed 9 November 2021 (letter from Dr David Hines dated 30 August 2021).

It was undoubtedly distressing for the plaintiff to learn that his capacity might be in question. However, in the face of Dr Hines’s letters and the plaintiff’s presentation during the hearings, it was not inappropriate that the Judicial Registrar order the plaintiff to file affidavit material so that the Court had material on which to consider the possible paths forward, and ultimately whether to refer consideration of o 15 of the Rules and s 179 of the Guardianship Act to an associate justice. The fact that Irving AsJ did not make those orders does not invalidate the Judicial Registrar’s concerns at that time.

I have had the benefit of reviewing the transcript of 29 September 2021. It appears that the Judicial Registrar may have, at least initially, considered that he did not need to determine the plaintiff’s recusal summons before hearing any submissions in relation to the flagged discussion of o 15 of the Rules and s 179 Guardianship Act.

…
Judicial Registrar:        Thank you. Mr Tomasevic, I think you have made an application that I note [sic] hear any further application in this matter.
Mr Tomasevic:             That’s correct, Your Honour.
Judicial Registrar:        Well, I’m conducting a directions hearing today. I’ll indicate to you that I propose to have the proceeding referred to an Associate Justice on 4 November to consider the issues that were raised by Mr Gregg on the previous occasion. Do you have any submission about that, Mr Tomasevic?
Mr Tomasevic:             Well, Your Honour, it’s my understanding, correct me if I’m wrong, that actually the court should provide the time and date for the review of the judicial – judicial review and appeal for you to withdraw yourself from my case …[90]

[90]JRT1.

The Judicial Registrar did, however, go on to give the plaintiff an opportunity to make submissions about that summons. He asked the plaintiff a number of times to clarify what order or orders the plaintiff said were unreasonable and erroneous. The plaintiff stated multiple times that his affidavit was ‘crystal clear’. Amidst a number of recitations of grounds for judicial review and bald claims of unlawfulness, the plaintiff did specifically articulate that the Judicial Registrar failed to assist a self-represented litigant, and that it was unreasonable to disregard the other party’s consent to, and medical material in support of, an extension of time. However, he did not expand upon these grounds.

There is nothing in the Judicial Registrar’s conduct during the 29 September 2021 hearing which rises to the level of apprehended bias let alone actual bias.

Ultimately, the orders made by the Judicial Registrar were interlocutory, not final. It remained open to the plaintiff to re-agitate any requests to extend the timetable and vacate the trial date based on appropriate evidence. Indeed, he could have done so before me at a mention on 24 November 2021, if he had concerns about not being ready for trial.

As it happened, the trial was able to proceed before me on 26 November 2021. That the plaintiff had not prepared written submissions or collated a court book was not a barrier to the matter proceeding, and the first defendant was able to assist with a request from my chambers for transcript of the VCAT hearing of 4 December 2019 and copies of the documents that were before the Deputy President. At the hearing, the plaintiff was able to articulate his position in relation to the two matters before me ardently. He was provided opportunities to take breaks but did not avail himself of them. There were times in which he was overcome with emotion, but these moments did not overwhelm his general ability to respond to my questions, put his case and engage intelligently with the process.

In conclusion, I dismiss the appeal.

I will hear the parties on costs.

[2021] VSC 815

9 December 2021