Applicant v Respondent

2 The VCAT proceeding between Mr Guastalegname and Chevros Pty Ltd arises from a retail tenancy. The VCAT proceeding was heard in part by Member Kincaid over three days in April of this year. The hearing was adjourned when Mr Guastalegname made an application under s 108 of the Victorian Civil and Administrative Tribunal Act 1998 ('the Act') that the Tribunal be reconstituted. Section 108 provides that such an application must be determined by a presidential member. Member Kincaid is not a presidential member. The application came before Deputy President Lulham on 7 May 2015. By order 1 made that day, Deputy President Lulham dismissed the application for reconstitution. Orders 3 and 4, also sought to be appealed, relate to costs.

3 The applicant filed a summons on 2 June 2015 and the proceeding came before me for directions on 26 June 2015. As I advised the parties on that day, the Court's usual course is now to refer applications for leave to appeal arising from a retail tenancy dispute to Justice Croft, and his practice is usually to hear the application for leave to appeal, and appeal if leave is granted, together. He was unable to hear the application and appeal on that day. I was able to do so, and so, in an endeavour to deal with the proceeding in the most efficient way Justice Croft referred the whole of the proceeding to me for hearing and determination pursuant to r 77.05 of the Supreme Court (General Civil Procedure) Rules 2005. An important consideration in that regard was that the orders that are the subject of the application for leave to appeal and appeal are interlocutory orders in the context of a long running dispute between the parties in the Tribunal, which has been effectively stayed pending the outcome of, first that reconstitution application in the Tribunal, and then the proposed appeal in this Court against the determination of it by Deputy President Lulham.

4 As it transpired, however, the applicant did not wish to proceed to hearing of the whole appeal on that day. The only matter that had been listed for hearing on that day on prior notice to the parties was the application for leave to appeal. Accordingly, I did not consider it appropriate to require the applicant to proceed to full hearing. I considered that it remained more efficient to deal with both the application for leave to appeal and appeal, if leave was granted, in the one hearing. This was because it was apparent that the same material would require consideration in the leave application and in the appeal. I adjourned the hearing of both matters to 6 August 2015 for hearing before me, and set a timetable for further material.

5 The parties agreed on two occasions to allow further time to the applicant for his further material. The applicant sought still more time and adjournment of the hearing on 6 August 2015. I refused that application, which was opposed, for reasons given in detail orally. In short, I was not persuaded that any good reason had been shown for further adjournment; I considered that prejudice would be occasioned to the respondent if the hearing was adjourned; and I considered that it was in the interests of justice, given that the orders in question are interlocutory orders, for the hearing to proceed as scheduled.

6 When the hearing commenced, the applicant then sought that the Court restrain counsel for the respondent from acting. That application was opposed. I refused it, giving detailed reasons orally. Immediately after I had concluded my oral reasons for refusing the application, the applicant sought to canvass the ruling and advance a further submission as to why Mr Best should not act for the respondent. When I noted that I had just ruled on that application, the applicant submitted that I was biased and sought that I recuse myself. I refused that application, indicating that I would give my reasons in writing. The hearing of the application for leave to appeal and the appeal then proceeded.

7 At the conclusion of the hearing, I indicated that I would grant leave to appeal, allow the appeal and remit the reconstitution application to the Tribunal for rehearing by a different presidential member. I gave brief oral reasons which addressed only one of the issues canvassed in the hearing, indicating that I would address the other issues canvassed, to the extent necessary, in written reasons.

8 By these written reasons I elaborate the brief oral reasons I gave at the conclusion of the trial of this proceeding, give my reasons for refusal of the application that I recuse myself, and address the other issues canvassed at the hearing to the extent necessary.

9 Section 148 of the VCAT Act permits appeal to the Supreme Court from an order of VCAT only on a question of law, and after leave to appeal has been given. The test for leave to appeal was articulated by Phillips JA in Secretary to the Department of Premier and Cabinet v Hulls ("Hulls") [1], and has been adopted in many subsequent decisions of this Court. I set out below the well known passage of the judgment of Phillips JA in Hulls:

When leave is sought to appeal under s. 148, it will be necessary for the applicant to identify a question of law which is relevant to the granting of the relief sought on appeal. The importance of the question, either generally or to the would-be appellant in the particular case, will probably be relevant. The applicant must show that there is a real or significant argument to be put on that question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave. Moreover, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice, although, where the order below is final, that injustice will often be more readily discernible.[2]

10 There was no contest before me that the applicant had identified alleged errors of law, and no submission put that, if I found such error, it could remain uncorrected without substantial injustice to the applicant. Indeed, the respondent's written submissions commence with the statement that it does not oppose the grant of leave to appeal or the granting of the appeal. Even in a truly unopposed application for leave to appeal or appeal, it remains the task of the applicant to demonstrate first arguable legal error, and then that that error is established. As I set out later in these reasons in relation to costs, however, in substance I consider that the respondent did oppose the application and appeal.

11 The applicant relies on a draft notice of appeal dated 1 June 2015. The alleged error of law there identified under the heading 'Questions of Law' is breach of procedural fairness. There is no dispute that breach of procedural fairness if proved is an error of law.

12 Under the heading 'Grounds of Appeal' the applicant alleges that he was denied procedural fairness in a number of specific respects, articulated as grounds 1-17. Ground 1 alleges that Deputy President Lulham denied the applicant a fair and impartial hearing, without further elaboration as to how it was said this occurred. Ground 2 alleges that the Deputy President failed to assist the applicant as a self-represented litigant, again without any elaboration. Grounds 3 and 4 are directed to the fact that Deputy President Lulham heard the reconstitution application on 7 May 2015 although the notice of that hearing provided to the parties described it as a 'directions hearing'. Grounds 5 and 6 are directed to the refusal by Deputy President Lulham to adjourn the hearing (if indeed the application was listed for hearing as opposed to directions) to enable the applicant to rely on a transcript of the hearings before Member Kincaid. Grounds 7, 8 and 9 allege that Deputy President Lulham did not allow the applicant a proper opportunity to put written or oral submissions. Grounds 10 and 11 allege that the Deputy President took into account irrelevant considerations and failed to take into account relevant considerations (in neither case there identified) respectively. Ground 12 alleges that the Deputy President allowed the respondent to make an application pursuant to s 78 of the VCAT Act without notice to the applicant. Ground 13 alleges that the Deputy President's reasons do not reflect the applicant's submissions as put. Ground 14 alleges that the Deputy President adopted the respondent's proposed cost orders 'despite having denied the Applicant procedural fairness'. Ground 15 alleges that Deputy President Lulham engaged in 'either actual or apprehended bias', without elaboration as to the conduct said to constitute bias. Ground 16 alleges that the Tribunal failed to act compatibly with the Charter of Human Rights and Responsibilities Act 2006 in its administrative capacity. It may be that this is intended to be elaborated by Ground 17, which asserts that the release of the transcript of the proceedings before Deputy President Lulham on 7 May 2015 was unreasonably delayed.

13 The applicant spoke to Grounds 3-4 (notice of directions hearing not hearing); Grounds 5-6 (refusal to adjourn); Grounds 7-9 (refusal to allow submissions); Ground 13 (reasons do not reflect submissions); Ground 14 (adoption of the respondent's proposed costs orders) and Ground 15 (bias). He made brief reference to some other Grounds.

14 The respondent directed its written and oral submissions to only three matters: apparent bias; alleged breach of procedural fairness by reason of proceeding to hearing despite the notice given being of a directions hearing rather than of hearing; and alleged breach of procedural fairness by reason of failing to accept the applicant's written submissions.

15 In these reasons I will consider only Grounds 3, 4, 6 and 15 in any detail. I reject Ground 15 (bias). I consider that sufficient error of law is shown arising from Grounds 3, 4 and 6 to require the grant of leave to appeal and that the appeal be allowed. It is accordingly not necessary to reach a view about any of the other matters canvassed in the written material or oral argument and I will not do so, although I will touch on some of these matters briefly.

16 The first aspect of alleged breach of procedural fairness that I will discuss is the allegation that Deputy President Lulham erred in treating the listing before him as the hearing of the reconstitution application when the notice of that hearing had described it as a directions hearing.

17 The applicant's evidence is that he first made application that the Tribunal be reconstituted on the second day of the hearing before Member Kincaid, which was 2 April 2015. He affirmed that application on the next hearing day, 7 April 2015. Member Kincaid then adjourned the hearing to allow that application to be heard. The respondent put into evidence[3] the orders made by Member Kincaid on 7 April 2015. They include in Other Matters specific reference to the possible hearing of the application on 15 April 2015 or another date to be fixed. There is no dispute that the application was not listed on 15 April 2015.

18 Prior to that date, the applicant's evidence is that he contacted the Tribunal and the solicitors for the respondent by email on 13 April 2015 seeking that the 'hearing before the President scheduled for 15 April 2015 ' be adjourned because he had not yet received the audio discs of the hearings before Member Kincaid to review and if necessary have transcribed.[4] Although this email was not the subject of direct comment at the hearing before me, it would seem to indicate that the applicant did appreciate that the proposed listing on 15 April 2015 was for full hearing. The Tribunal replied by email on 14 April 2015 relevantly informing the applicant that '(t)he suggested hearing date of 15 April 2015 is unlikely to proceed. Whether your application is capable of proceeding without you first obtaining audio CDs and written transcripts, as you suggest, will be a matter for the Presidential Member hearing your application.'[5]

19 The Tribunal sent a notice to the parties dated 21 April 2015 headed 'Notice of Directions Hearing'[6] which contains the following relevant text:

A directions hearing has been listed before VCAT at 2:15 pm on 7 May 2015 at 55 King Street, Melbourne.

...

At the directions hearing VCAT may explore methods to resolve the issues in dispute and make directions for the future conduct of the proceeding. VCAT may also make a determination on any legal issues raised. If a party fails to appear VCAT may proceed to make orders and directions in that party's absence including final orders. Parties are not expected to bring witnesses to the directions hearing as the hearing of the evidence will be listed at a later date.

...

It will be necessary to indicate how long you estimate the hearing will take, the number of witnesses you intend to call (including experts) and how long any expert requires to prepare a report.

20 The next day, the Tribunal sent the parties a second notice of a hearing on 7 May 2015 dated 22 April 2015 which is in identical terms to the first notice, including the heading 'Notice of Directions Hearing' save that the following additional words were inserted in bold in the body of the text: 'The purpose of the directions hearing is to consider the reconstitution application by the applicant'. The covering email also described the document as 'notice of a Directions hearing'.[7]

21 The applicant's unchallenged evidence is that he consulted the VCAT website 'to review and confirm the nature of a Directions hearing'[8] where he found the following relevant text:

Directions Hearings

A Directions Hearing is conducted by a Member of VCAT.

The purpose of a directions hearing is to set a timetable for the hearing including, if necessary:

• orders for the filing and service of all material to be relied upon at the hearing and
• setting a date for the actual hearing.

At the directions hearing the Member will consider alternative dispute resolution options. It also allows the Member to make directions regarding any special procedural issues requiring attention and to answer any questions about the conduct of the matter. The Directions Hearing deals with preliminary matters, not with the substance of the application nor complaint.

The Member will ask each party how many witnesses they intend calling at the hearing. This helps the Member decide how many days will be required to hear the application. The Member will ask the parties to prepare a written statement for each of their witnesses. These statements should set out the evidence that each witness will give at the hearing. The statements should be set out in numbered paragraphs. The purpose of witness statements is to shorten the length of the hearing.

No evidence is taken at a Directions Hearing.

In some cases the Member may also try to encourage settlement to take place.

...

At the Directions Hearing the Member will make directions. Copies will be handed out to the parties at the Direction Hearing or sent to the parties shortly thereafter. The directions will generally set out the dates by which the parties have to prepare documents regarding the application or complaint, and any other relevant matters.

22 He then contacted the Tribunal by email on 4 May 2015 noting that he had received the notice of the Directions Hearing and had now received the audio tapes of the hearings before Member Kincaid, but would not be able to obtain a transcript of them by 7 May 2015, and so would not be in a position to 'make formal and complete submissions' on 7 May 2015. The email stated that the applicant did not object to the hearing on 7 May 2015 proceeding as a directions hearing, but did object to full hearing on that date and that he sought adjournment if the Tribunal 'considers that it wishes to determine the Bias Application as part of the directions hearing'.[9] The applicant did not copy the solicitors for the respondent into that email. He received a response from the Tribunal (also apparently not copied to the solicitors for the respondent) in these terms: 'Your correspondence was referred to a Tribunal Member who has asked me to advise that you should raise the matters and concerns set out in your email of 4 May 2015 at the directions hearing on 7 May 2015'.[10]

23 The applicant did seek to raise these matters before Deputy President Lulham. He clearly identified that he understood the listing to be a directions hearing. [11] Deputy President Lulham was dismissive of this contention, relying on the reference in bold to the reconstitution application in the notice of directions hearing dated 22 April 2015.[12] The Deputy President described the distinction that the applicant drew between a directions hearing on the reconstitution application, and the full hearing of the reconstitution application as 'absolutely pedantic hair splitting'.[13] He did not expressly rule on the contention that the listing was for directions only, but it was apparent that he rejected it.[14] The Deputy President then required the applicant to identify the matters he wished to raise in support of his application for reconstitution of the Tribunal. The Deputy President said that he was taking this course to determine what he described as an adjournment application.[15] The Deputy President continued to explore at some length the substantive arguments that the applicant wished to put in support of reconstitution, without clearly identifying until the end of the applicant's submissions whether he did so to determine the adjournment, or as part of the substantive hearing, or both.[16]

24 The respondent opposed an adjournment. Counsel for the respondent, then as now Mr Best, also put submissions in opposition to the substantive reconstitution application.[17] In reply, the applicant reiterated that he understood the hearing to be for directions only, and he needed the full written transcript to make submissions on the reconstitution application. He also made reference to a further matter, said to have been read to him from the transcript by someone from the transcript office.

25 The Deputy President gave oral reasons on that day, which were later transcribed into written reasons ('the Reasons'). He rejected the applicant's contention that the listing was only for directions for the hearing of the reconstitution application, stating '(t)he nature of the hearing today was made clear by the third paragraph of the Notice of the hearing, which is set out in bold type'.[18] He rejected the applicant's application for adjournment, stating in conclusion 'I reject the proposition that the absence of a transcript warrants the adjournment'.[19] He detailed his reasons for this conclusion as follows.

26 First, the fact that the applicant made the application for reconstitution on 7 April 2015 without transcript meant he knew the grounds on which he relied. Secondly, the applicant had the audio discs since 29 April 2015 and so 'has had ample time to isolate on the recording any discussions or exchanges that he wished to rely on'. Thirdly, he found that the applicant had sought to mislead the Tribunal in relation to whether or not someone from the transcript office had read portions to him. Fourthly, he found that because the applicant had failed to give notice to the respondent of his understanding of the hearing or proposed application for adjournment, the respondent had incurred costs in preparation for the hearing that would have been wasted had adjournment been granted.[20] The Reasons then set out the reasons of Deputy President Lulham for rejecting the substantive reconstitution application.

27 The respondent submits that it is the practice of the Tribunal to give notice of the hearing of an interlocutory application in a form headed 'directions hearing'. There is no evidence to that effect, but for the purpose of what follows I assume that that may be the case.

28 The respondent submits that the notice of hearing in this case was in any event sufficient to give notice of the substantive hearing of the application by the inclusion of the reference in bold to the application. The respondent says that this notice should be seen in the context of the reference to 'hearing' in Other Matters of the orders made 7 April 2015; and the email sent by the applicant to the Tribunal on 4 May 2015. The respondent submits that it is apparent from that email that the applicant in fact understood that the hearing was the substantive hearing, and he improperly sought to unilaterally change that position to a directions hearing only.

29 The respondent then submits that the response from the Tribunal on 5 May 2015 should sufficiently have alerted the applicant to the fact that the substantive hearing would proceed, subject to any ruling by the sitting member.

30 There is some force in these submissions. I accept that the reference to a proposed hearing of the reconstitution application on 15 April 2015 in Other Matters of the orders of 7 April 2015 was to the full hearing. It would appear from the applicant's email of 13 April 2015 to the Tribunal that he also understood it in that way. However, that hearing did not proceed. What followed was two notices of a directions hearing to be held on 7 May 2015. Given this sequence, the force of reference to full hearing in the orders of 7 April 2015 in my view falls away.

31 There was specific reference made in the second notice of hearing to the reconstitution application, and this, in contradistinction to the first hearing notice which contained no such reference, clearly indicated that that application was the purpose of the hearing. However, the second notice did not cure the ambiguity introduced by the use of the phrase 'directions hearing' and the description in the notice of what might take place at a directions hearing. While it is not impossible that the description of what might take place (exploration of methods to resolve the issues in dispute; directions for the future conduct of the proceeding; determination of any legal issues raised; no witnesses; estimation of length of hearing) could sit conformably with the hearing of an interlocutory application, in my view the description is far more apt for a pure directions hearing, whether that be in relation to the trial or in relation to an interlocutory application.

32 I consider the issue is put beyond doubt by the description on the website, to which the Notice of Directions Hearing directs the reader. That description includes that the purpose of a directions hearing includes 'setting a date for the actual hearing', and that the directions hearing 'deals with preliminary matters, not with the substance of the application or complaint'. It may be that the words 'hearing' and 'application' are intended to refer to the underlying substantive application, to be heard at a trial, but the words are equally capable of describing an interlocutory application, such as the application here made for reconstitution of the Tribunal, to be heard on a date fixed at the directions hearing.

33 The fact that the applicant wrote to the Tribunal on 4 May 2015 alarmed at the possibility that the Tribunal may proceed to full hearing should not, in my view, be held against him. The email should in my view be seen as identifying a concern that legitimately arose from the notices of hearing, not a concession that the matter was listed for full hearing. The email should have been copied to the solicitors for the respondent, and the fact that costs may thereby have been incurred which could be wasted was a relevant consideration if the applicant's contention to the Tribunal on 7 May 2015 should properly be seen as an application for adjournment. In my view, however, that was not the correct way to view it. It was in fact a contention that the matter was only listed for directions, and so should only proceed to directions, and not full hearing.

34 I do not accept the submission that the response from the Tribunal on 5 May 2015 should have left no doubt in the applicant's mind that the full hearing would proceed, unless the sitting member ruled otherwise. The email does not clarify whether or not the listing is for full hearing of the application, or for directions only, only that clarification should be sought at the hearing, which is again described as a directions hearing. If anything, this email in my view tended to support the reading that the listing was not for full hearing.

35 In relation to the contention by the respondent that it is the usual practice of VCAT to give notice of the hearing of an interlocutory application by a form headed 'Notice of directions hearing', I accept that, if that is correct, that is how the notice might be understood by a legal practitioner who practises in VCAT, or, indeed, by a member. But it is not necessarily to be understood in that way by a lay person, even if that lay person has had some experience in the subject proceeding, given that that reading conflicts with the description of a directions hearing on the website.

36 Given this ambiguity, in my view, Deputy President Lulham erred in treating the hearing before him as the full hearing of the application. It was a breach of procedural fairness and so an error of law to proceed on that basis, when the applicant's reading of the notice of hearing was reasonably open. Treating the notice of hearing as giving notice of substantive hearing of the application cast a burden on the applicant to demonstrate a basis for adjournment, when no adjournment was required if the hearing was only, as the notice said, for directions.

37 For these reasons, I grant leave to appeal and allow the appeal in respect of Grounds 3 and 4 of the Draft Notice of Appeal.

38 The reason the applicant gave to the Tribunal for being unable to proceed with the full hearing of his reconstitution application at the directions hearing was that he had not yet obtained the transcript of the proceedings before Member Kincaid, and wished to prepare his submissions with the benefit of that transcript. The Deputy President dismissed this as being sufficient reason for, as he characterised it, adjournment of the hearing. As discussed above, I consider that this characterisation of the hearing led to a denial of procedural fairness. It follows that it is not critical to the disposition of the application for leave to appeal and appeal to consider whether or not proceeding in the absence of the transcript also amounted to a denial of procedural fairness. As the applicant placed considerable weight on this matter, however, I consider it appropriate to consider it.

39 The first reason given by the Deputy President for his conclusion that the written transcript was not critical was that the applicant showed that he knew the grounds on which he relied because he made his application for reconstitution prior to the written transcript being available. In my view, the Deputy President here makes an error of law in conflating detailed submissions with broad grounds. It is common for a party to be able to determine that an application or appeal should be instituted on the basis of what has transpired at a hearing, but to reasonably await the transcript to formulate detailed submissions. This is particularly so where the ground is one of bias, and the application for reconstitution must be considered by another member, as s 108 of the VCAT Act required here. In fairness to the Tribunal member whose conduct is to be impeached, and to the parties, in particular the applicant, it is appropriate that the application be prosecuted on the basis of an objective record of what occurred, not just subjective recollection.

40 Subjective recollection may err. Indeed, counsel for the respondent conceded before me that when answering a question from the Deputy President he had erred in his recollection of what transpired before Member Kincaid. The Deputy President asked Mr Best if there had been, as the applicant submitted, an application made for summary dismissal which Member Kincaid determined. Mr Best said there had not been.[21] The Deputy President then relied on Mr Best's recollection.[22] Mr Best conceded before me that what he had said to the Deputy President was a mistake, and there had indeed been an application made by the applicant to Member Kincaid to strike out the respondent's counterclaim. Mr Best explained his mistake on the basis that when the parties were before the Deputy President no transcript of what occurred before Member Kincaid was available. This error, which then occasioned error in the Reasons of the Deputy President, clearly illustrates the wisdom of allowing a party who wishes to do so to obtain written transcript for the purposes of review at a later hearing of what transpired at an earlier hearing. This is precisely what the applicant sought to do, and the Tribunal rejected.

41 The second reason given by the Deputy President for rejecting the necessity to obtain transcript was that the applicant could have isolated the relevant portions on the audio recording and played them at the hearing. The applicant relies on a comment I made in a previous decision in which I dismissed an application for leave to appeal from VCAT to the effect that written transcript is required for such an application, and not just the audio recording.[23] I made that comment about the necessity for transcript to seek leave to appeal in this Court. Whether or not written transcript is required is a matter of practice in the court or tribunal concerned. It is not necessarily the case that the practice in VCAT is the same as the practice in this Court. Counsel for the respondent informed me that in his experience it is not uncommon for a member at VCAT to listen to an audio recording of an earlier hearing, rather than require written transcript, and some members may even prefer that course. If that is so, there is no evidence that the applicant was aware of that practice, and the Tribunal did not advise him of it in either of its responses to requests from the applicant for adjournment due to no written transcript.[24] It is not necessary, however, to reach any conclusion as to whether or not this reason shows error of law, and I do not do so.

42 The third reason given by the Deputy President was that the applicant had sought to mislead him. I make no finding in relation to whether or not that reason was affected by legal error. To do so would require a detailed analysis of whether the conclusion was soundly based, and, if not, whether it was properly characterised as an error of fact, or of law. Neither party has invited me to undertake that enquiry, and it is not necessary to do so for the disposition of this appeal.

43 The fourth reason given by the Deputy President for refusing what he characterised as an adjournment was that the respondent may have incurred costs which would be thrown away. Plainly, if the application was properly so characterised in law, prejudice to the respondent was a relevant consideration. In my view, however, what the applicant was putting to the Tribunal was not properly characterised in law as an adjournment application, because the application was on the face of the Notice of Hearing, as informed by the Tribunal website, listed only for directions. I consider that error irrevocably tainted the way the Deputy President then proceeded. He also made an error of law in conflating sufficient knowledge to make an application for reconstitution on the basis of bias with the capacity to make detailed submissions in support of it, in the absence of a transcript.

44 For these reasons, I also grant leave to appeal and allow the appeal in respect of Ground 6. Ground 5 alleges that it was the Tribunal who unreasonably delayed the release of the audio recording. It is not necessary for the disposition of this appeal to undertake an enquiry into the date of release of the audio recording and I do not do so.

45 Ground 14 of the Draft Notice of Appeal explicitly, and Ground 1 implicitly, allege error of law by reason of actual or apprehended bias. In his first affidavit, the applicant sets out to some degree why he asserts that Member Kincaid showed actual or apprehended bias,[25] and he makes general reference to bias by both Member Kincaid and Deputy President Lulham on a number of occasions in his written material. The applicant elaborated his claim of bias against Deputy President Lulham in oral submissions. He contended that the Deputy President must have been biased because he did not believe that the applicant was confused by the notice of hearing and because he refused the applicant's submission that the transcript of the hearing before Member Kincaid was required. The applicant submitted that this 'must have been bias' because the Deputy President had also been the Tribunal member whose decision was the subject of the application for leave to appeal in which I said that written transcript was required.[26] The applicant placed reliance on the fact on the member whose decision he challenges is a Deputy President. He also submitted that there had been an orchestrated attempt by counsel for the respondent and his 'colleagues', apparently a reference to the Tribunal members Kincaid and Lulham, to 'silence' him, including by the making of indemnity costs orders. Finally, he submitted that the Deputy President in his Reasons at paragraph 10 (b)(ix) misrepresented his submission.

46 Actual bias is an extremely serious allegation. As such, it requires facts, not suspicion. Bias should not be found unless the facts exclude the possibility of explanation other than bias. In relation to the first matter relied upon by the applicant, the fact that a submission is not accepted does not mean that the adjudicator is biased against the party making it. It is an essential element of the curial process that some submissions will be accepted, and some rejected. The adjudicator may err in rejecting a submission, but that does not mean he or she is biased.

47 In relation to the second basis for the bias allegation, not accepting that a written transcript was required, the applicant has assumed that what is required in this Court for an application for leave to appeal, is necessarily also required in the Tribunal. As I have sought to show, that is not necessarily the case. Nor is it necessarily the case that the Deputy President would have in his mind a comment I made in a decision on an unsuccessful application for leave to appeal from an earlier and entirely unrelated decision of his, some years before, particularly when the applicant did not draw his attention to that decision.

48 The third matter on which the applicant relies, is that the member whose conduct he challenges is a presidential member. I do not understand how this supports the allegation of bias. If anything, the seniority of that position may be thought to make bias less, rather than more, likely.

49 Nor does the fourth matter, the making of an indemnity costs order against him show, of itself, actual bias, let alone bias by the Deputy President, who did not make that order. The applicant has conflated the making of an order adverse to him, which may have been justified as a proper exercise of the curial process, with bias against him. There is no factual basis shown for the allegation of conspiracy, and it is scandalous without such a factual basis.

50 The final matter on which the applicant relied in his oral submissions on bias was that the Deputy President 'misrepresented' a submission that he had made. In paragraph 10(b)(ix) of the Reasons the Deputy President says that the applicant asserted that 'Member Kincaid was silent sometimes during the hearing'. I accept that describing the submission in this way does not accurately record it. The applicant's submission was that Member Kincaid remained silent as to what he claimed to be 'the respondent's breaches pursuant to the terms of settlement and unlawful termination of the lease' but continued to 'target him', the applicant, with arguments originating from counsel for the respondent.[27] The applicant said that this gave rise to an apprehension of bias. I do not think that the only explanation for this inaccurate recording of the submission is, however, bias. The explanation may lie in error in recording or appreciating the submission. I do not think that this error can be said to show actual bias, although it may show error as asserted by Ground 13.

51 For these reasons, I do not consider that the applicant has shown actual bias by the Deputy President arising from any of these matters.

52 The test for apprehended bias requires the party alleging it to first identify what it is that might lead the decision maker to decide a case other than on its merits, and then to articulate the logical connection between that matter and the feared deviation from the course of deciding the case on its merits.[28] The question is to be determined on the basis of what a 'fair minded lay observer' might apprehend. Further, it is assumed that that 'fair minded lay observer' is aware of the nature of 'ordinary judicial practice'.[29] In my view an understanding of ordinary judicial practice in Australia would include an understanding that a submission may be rejected without any bias; that error does not necessarily arise from bias; that an adjudicator would ordinarily need a party to make specific reference to an authority if that party says that that authority applies; that an indemnity costs order may in some circumstances be appropriate; and that ordinarily adjudicators do not conspire with counsel for one party against the other party. On this basis, I do not consider that the applicant has shown a reasonable apprehension of bias arising from the matters on which he relies.

53 It is fair to record that a reading of the transcript and Reasons could give rise to some concern at the manner in which Deputy President Lulham conducted the hearing and reached his conclusions. Even the respondent described the manner in which Deputy President Lulham addressed the applicant and dealt with the hearing as 'robust'. It also appears to me, however, that the Deputy President did make endeavours to elicit the grounds on which the applicant relied for adjournment, and, if that was refused, for reconstitution on the grounds of actual or apprehended bias by Member Kincaid. These endeavours proceeded from a flawed premise- that the matter was listed for hearing and the applicant was seeking an adjournment. It may be that this error explains what seems, from the written transcript, to have been at least a rather impatient manner of dealing with the applicant. If the Deputy President's manner was the basis of the allegation of bias, however, then it needed to be identified as such and a detailed articulation provided as to how it logically would cause a fair minded lay observer to apprehend that the Deputy President might not bring an impartial and unprejudiced mind to the issues before him. The applicant has not provided this identification or elaboration. Grounds 1 and 15 are not made out.

54 By Grounds 7-9, the applicant contends that the Tribunal failed to allow him a proper opportunity to put either oral or written submissions. The applicant had prepared written submissions which he at first declined to tender, on the grounds that they were not finalised. When he did offer them, the Tribunal declined to accept them. By Ground 13 the applicant contends that the reasons of Deputy President Lulham do not accurately reflect the submissions that he did put.

55 It is not necessary for the disposition of the appeal to consider these grounds. To properly consider Grounds 7-9 would require detailed analysis of the written submissions that the applicant had prepared, which the Tribunal ultimately declined to accept; his oral submissions before the Deputy President; and his commentary in this appeal as to what he wished to say had he had the opportunity to consider the transcript before Member Kincaid. To properly consider Ground 13 would require detailed comparison of the reasons and the transcript. Those exercises would be time consuming, and are not necessary, given that I will grant leave to appeal and allow the appeal on other grounds. For those reasons, I will not consider these grounds further.

56 By Ground 14, the applicant contends that the Tribunal erred in adopting the proposal of the respondent that the costs of the hearing before the Deputy President be determined by Member Kincaid. It is certainly usual for the adjudicator before whom a matter has been argued to determine an application for the costs of that hearing. The approach adopted by the Deputy President departed from that usual approach. The respondent says it was sensible, given that the matter was to be remitted to Member Kincaid for further hearing as the reconstitution application had been dismissed. I do not make any final determination as to whether or not this approach by Deputy President Lulham constituted a vitiating error. It is not necessary to do so for the determination of this appeal, as the question of any costs will now be reconsidered after fresh hearing of the reconstitution application.

57 I do not consider the remaining grounds in the Draft Notice of Appeal, being Grounds 2, 10, 11, 12, 16 and 17 to be established. Some were not elaborated at all, or were scarcely elaborated, in the applicant's written material or oral submissions. In relation to the oral submissions, this may have been because in the interests of the efficient determination of the appeal, and having regard to the strength of the argument in relation to the notice of hearing and absence of transcript, I limited the time for oral submissions.

58 As noted earlier, the applicant sought that I recuse myself for bias. I refused that application, and in the interests of using what time remained to proceed with the hearing, did not give reasons at that time. I now do so.

59 The application was made after I had refused an application made by the applicant to the effect that Mr Best not be permitted to appear for the respondent. I heard from both parties on that application, and refused it, giving detailed oral reasons. I then asked the applicant to put his submissions on the application for leave to appeal and the appeal. He responded with the assertion that Mr Best had misled the Court because he had not referred to paragraph 18 of the applicant's third affidavit. As this appeared to be a further submission in support of the application on which I had just ruled, I informed the applicant that I had ruled, and it was not appropriate to seek to canvass that ruling. The applicant responded that he apprehended bias because I had said I had read his material, but in my ruling had not referred to paragraph 18 of his affidavit or the transcript of the hearing before Member Kincaid. Thus the basis articulated by the applicant for his application that I recuse myself was that I had not referred to particular matters in my ruling, or that this showed that I had incorrectly stated that I had read his material, or both.

60 Paragraph 18 of the applicant's third affidavit is in the nature of a submission. The nub of the submission is that counsel for the respondent misled the Deputy President by asserting that there was no application for summary judgment made before Member Kincaid, when the transcript of that hearing shows that there was. The Deputy President accepted what Mr Best said, and adopted it in his reasons as a reason for refusing the reconstitution application. Paragraph 18 puts these matters forward as a basis for lack of confidence in Mr Best and the legal profession as a whole.

61 As noted earlier, Mr Best conceded in his submissions before me on the application that he not be permitted to appear for the respondent on this appeal that he had made an error in putting this submission to the Deputy President. I referred to that error, and Mr Best's concession that he had made it, in my reasons for refusing the application. If I was in error in failing to specifically refer to the contents of paragraph 18 or the transcript of the hearing before Member Kincaid, I considered at the time and now that the proper avenue available to the applicant in relation to that error was appeal, not disqualification for bias. As noted earlier, error does not of itself show either actual or apprehended bias. It was for that reason that I refused the application.

62 Given that the appellant is unrepresented, I informed the parties at the conclusion of the hearing that the Court would prepare orders to give effect to my intention to grant leave to appeal, allow the appeal and remit the reconstitution application to the Tribunal for consideration by a different presidential member. The orders would be provided to the parties for any comment as to form prior to finalisation.

63 The proposed orders accompany these reasons. They provide for the grant of leave to appeal in respect of Grounds 3, 4 and 6 of the Draft Notice of Appeal and that the appeal is allowed on those Grounds. Orders 1, 3 and 4 made by Deputy President Lulham on 7 May 2015 are set aside, and the reconstitution application remitted to the Tribunal for hearing by a different presidential member.

64 The appellant sought his costs of the application for leave to appeal and of the appeal. I ruled orally on the costs issues, and here repeat the substance of those rulings, elaborating as required.

65 As the appellant is not legally represented, the only costs that may be awarded in his favour are disbursements. The appellant sought the following disbursements: filing fees, the trial fee, and transcript fees in respect of both the hearing before Deputy President Lulham and the hearings before Member Kincaid.

66 The respondent opposed the making of an order for costs against it. Counsel for the respondent contended that that would not be appropriate for two reasons. First, he contended that the respondent had not opposed the application for leave or the appeal. Secondly, he submitted that no error had been shown by the respondent, as opposed to the Tribunal, and for that reason as well costs should not be awarded against the respondent.

67 As noted earlier, I do not accept that the respondent did not oppose the application for leave or the appeal. Although the respondent's submissions stated that the application for leave and the appeal were not opposed, and counsel for the respondent repeated this orally, in substance the respondent did in my view oppose the applicant's case. Neither the respondent's written submissions nor its oral submissions were confined to legal principles alone. The respondent applied the legal principles there articulated to the facts of this case, with the apparent object of showing that the applicant had not demonstrated either apparent bias or breach of procedural fairness at the hands of the Tribunal. I consider that the respondent actively sought to maintain the decision of the Tribunal.

68 In relation to the second limb of the respondent's submission, it is conventional to make an order for costs against a respondent to an appeal who opposes the appeal, notwithstanding that the content of the appeal is alleged error at the hands of the tribunal or court below. I see no reason to depart from that practice.

69 A partial remedy for the respondent lies in the provisions of the Appeal Costs Act 1998. By sections 4 and 5 of that Act, the respondent to a successful appeal may seek an indemnity certificate from this Court and may seek reimbursement from the Appeal Costs Board of costs it has been ordered to pay the appellant, and has paid. It may also seek payment of some of its own costs. The respondent seeks such a certificate and I consider it appropriate to grant it.

70 The appellant seeks that the costs order extend to the cost of obtaining transcript of the proceeding before Member Kincaid, although no orders made by Member Kincaid were the subject of this appeal. I refused that application. I consider that that transcript is more correctly seen as relating to the substantive application for reconstitution which will now be heard again in VCAT. While it follows from my reasons that I consider the transcript of the proceeding before Member Kincaid to have been reasonably necessary for the reconstitution proceeding, I do not consider that it was reasonably necessary for this appeal. I accept that the appellant relied on it to some extent, but I do not consider that it was required.

Application pursuant to s 29 of the Civil Procedure Act 2010

71 The orders also make provision for the making of a foreshadowed application by the appellant for an order pursuant to s 29 of the Civil Procedure Act 2010 should he choose to pursue that course.

[1] [1999] VSCA 117; [1999] 3 VR 331

[4] Exhibit MG 3 to the applicant's affidavit sworn 3 June 2015.

[5] Exhibit MG 4 to the applicant's affidavit sworn 3 June 2015.

[6] Exhibit MG-7 to the applicant's affidavit sworn 3 June 2015.

[7] Exhibit MG-8 to the applicant's affidavit sworn 3 June 2015.

[8] Applicant's affidavit sworn 3 June 2015 at [48].

[9] Exhibit MG-10 to the applicant's affidavit sworn 3 June 2015.

[10] Exhibit MG-10(a) to the applicant's affidavit sworn 3 June 2015.

[11] Transcript of the hearing before Deputy President Lulham, which is MG18 to the applicant's second affidavit, sworn 24 June 2015 ('T') at, for example, T 1.13-14, T 2. 16-18, T 3.16-19 and T 15.17-21.

[18] Reasons for Deputy President Lulham sent 13 May 2015, MG-1 to the applicant's affidavit sworn 3 June 2015, henceforth 'Reasons' at [4].

[23] Giurina v Owners Corporation No 1579 & Ors [2012] VSC 466 at [8].

[24] Exhibits MG-4 and MG-10(a) to the applicant's affidavit sworn 3 June 2015.

[25] First affidavit-sworn 3 June 2015- at [33]-[37].

[26] This is the case to which I referred earlier, Giurina v Owners Corporation No 1579 & Ors [2012] VSC 466 at [8].

[28] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, at 344; Bahonko v Moorfields Community and ors [2012] VSCA 89 at [27]- [28].