Applicant v Respondents

10 On 21 December 2022, VCAT issued a 'Notice of Section 75 Hearing' which fixed a hearing under s 75 of the Act for 6 June 2023. The Tribunal also made procedural orders relating to that hearing.

11 On 17 January 2023, VCAT made orders amending the references in the orders and notice referred to in the previous paragraph so that they referred to s 78, and not s 75, of the Act. Pursuant to those orders, on 19 January 2023, VCAT issued a 'Notice of Section 78 Compliance Hearing', with the hearing fixed for 6 June 2023 (the s 78 hearing).

12 Section 78 of the Act is in the following terms:

(1) This section applies if the Tribunal believes that a party to a proceeding is conducting the proceeding in a way that unnecessarily disadvantages another party to the proceeding by conduct such as:

(a) failing to comply with an order or direction of the Tribunal without reasonable excuse; or

(b) failing to comply with this Act, the regulations, the rules or an enabling enactment; or

(c) asking for an adjournment as a result of (a) or (b); or

(e) attempting to deceive another party or the Tribunal; or

(g) failing to attend mediation or the hearing of the proceeding.

(2) If this section applies, the Tribunal may -

(a) order that the proceeding be dismissed or struck out, if the party causing the disadvantage is the applicant; or

(b) if the party causing the disadvantage is not the applicant -

(i) determine the proceeding in favour of the applicant and make any appropriate orders; or

(ii) order that the party causing the disadvantage be struck out of the proceeding;

(c) make an order for costs under section 109.

(3) The Tribunal's powers under this section are exercisable by the presiding member.

13 As I have noted, on 8 September 2022 Mr Caspersz filed in the Court a notice of appeal in relation to certain of the orders contained in the 11 August orders. On 3 January 2023, Mr Caspersz filed a summons dated 23 December 2022 in which he sought a stay of the 11 August orders (the stay summons).[7]

14 The stay summons was heard by Judicial Registrar Baker on 8 February 2023. That day, the Judicial Registrar made an order that the summons be dismissed.[8]

15 In his ex tempore reasons for dismissing the stay summons, the Judicial Registrar applied the principles in Quick v Lamb-Ly Pty Ltd,[9] observing that the onus to demonstrate that a stay is justified is borne by the party seeking the stay, who must demonstrate special or exceptional circumstances. Mr Caspersz had not demonstrated such special or exceptional circumstances such that, absent being granted a stay, he would be put in a position from which he could not be restored. Quick establishes a requirement that Mr Caspersz be able to demonstrate at least one arguable ground of appeal of the orders sought to be stayed. Whilst JR Baker was not in a position to form a view as to whether Mr Caspersz's application was likely to succeed, it was unnecessary to rely upon this in dismissing his application. Having regard to the overarching objective in the Civil Procedure Act 2010, and the principle that an appeal does not ordinarily operate to stay the underlying proceeding, the appropriate course was for VCAT to be permitted to continue hearing the proceeding.

16 On 22 February 2023, Mr Caspersz filed a notice of appeal from the orders made by Judicial Registrar Baker on 8 February 2023 (the stay appeal). The notice of appeal is voluminous, extending over 15 pages of single spaced small font, and is discursive and repetitive. It identifies four grounds of appeal. In his notice of appeal, Mr Caspersz summarises why he contends that the Judicial Registrar had erred in law and/or fact and his grounds of appeal as follows:[10]

Overall, the Applicant, in summary, correctly asserts that the Judicial Registrar's determinations and orders of 8th February 2023 (including subsequent orders made with respect to extending orders 2. and 3.) in the Court proceeding are flawed for a number of reasons. This is correctly asserted as being the case as the Judicial Registrar has erred in law and/or facts from a number of perspectives (grounds) with respect to ALL of the orders made in the Court proceeding, either separately and/or collectively, namely:

1. The Judicial Registrar did NOT account for ALL of the required and applicable material available in the Court proceeding to be able to properly assess the Applicant's lawful and valid request for the stay of VCAT's orders of 11th August 2022 despite the Judicial Registrar's acknowledgement (confirmed from the transcript) that he in actual fact had - this relates to order 1. and 4. of 8th February 2023 either separately and/or collectively as outlined under Ground of Appeal 1 below.
2. BOTH the Judicial Registrar in the Court proceeding and Senior Member Vassie ('VCAT Member') in the VCAT proceeding C6315/2019 have displayed an inappropriate abuse of power with respect to their respective duplicated overlap of reasons and determinations of the Applicant's application for the stay of VCAT's orders 11th August 2022 - this relates to order 1. and 4. of 8th February 2023 either separately and/or collectively as outlined under Ground of Appeal 2 below.
3. The Judicial Registrar has wrongly applied the 'Quick' case law (as first referenced by the VCAT Member on 27th October 2022, and then subsequently on 15th December 2022) and other supporting referenced case law in his determination of the Applicant's application for the stay of VCAT's orders of 11th August 2022 which all refer to tenancy related disputes and/or matters specific to the Victoria Supreme Court of Appeal (VSCA) and NOT NON - tenancy related matters in the Trial Division of the Court which applies to the current Court and VCAT proceedings - this relates to order 1. and 4. of 8th February 2023 either separately and/or collectively as outlined under Ground of Appeal 2 below.
4. The Judicial Registrar has wrongly applied rule 64.39 of the Supreme Court (General Civil Procedure) Rules 2015 ('Court rules') (being specifically applicable in the VSCA) in the Court proceeding (which is in the Trial Division of the Court and NOT the VSCA). Rather, it is rule 58.12 of the Court rules which is applicable, as the Applicant's appeal of VCAT's orders are in relation to an appeal on a Question of Law - this relates to order 1. and 4. of 8th February 2023 either separately and/or collectively as outlined under Ground of Appeal 2 below.
5. The Judicial Registrar has wrongly applied the overarching principles of the Civil Procedures Act 2010 ('CP Act') to a stay of orders in a VCAT proceeding, being the current VCAT proceeding, given that the CP Act does NOT apply to a VCAT proceeding - this relates to order 1. and 4. of 8th February 2023 either separately and/or collectively as outlined under Ground of Appeal 3 below.
6. Conversely, the Judicial Registrar has failed to apply the same overarching principles of the CP Act during the Court proceeding with respect to the Second Respondents abuse of 'without prejudice' material being deemed by the Judicial Registrar to be in breach of section 131 of the Evidence Act 2008 and also his failure to investigate the Applicant's valid claims that Mr Bierenkrant has provided known false information in his affidavit of 3rd February 2023 - this relates to order 2, 3 and 4. of 8th February 2023 separately and/or collectively as outlined under Ground of Appeal 4 below.
7. The Second Respondents use of legal Counsel at the hearing on 8th February 2023 without notice is NOT deemed to be justified in view of the Second Respondents different prior representation without legal Counsel at the preceding directions hearing in the Court proceeding on 26th October 2022. This is deemed to be in contravention of the 'CP Act' - this relates to order 4. of 8th February 2023 separately as outlined under Ground of Appeal 4 below.

17 At the hearing of the stay appeal, the parties, and principally Mr Caspersz, relied upon a voluminous amount of affidavit material, much of which was repetitive and of limited utility in the disposition of this appeal.[11]

18 The first and third respondents did not appear on the hearing of the stay appeal, having previously informed the Court that they did not wish to be heard and would abide by the decision of the Court.

19 Order 84 of the Supreme Court (General Civil Procedure) Rules 2015 provides for a right of appeal from a judgment, order or direction of a judicial registrar. An appeal is to be conducted by way of a hearing de novo.[12] I addressed the nature of such an appeal in Dunn v Perpetual Trustee Company Ltd where I stated as follows:[13]

In Allesch v Maunz,[14] the High Court identified that the 'critical difference' between an appeal conducted by way of hearing de novo and an appeal by way of rehearing is that, in the latter, 'the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error', whereas in relation to a hearing de novo, 'those powers may be exercised regardless of error'.[15] After considering these and other relevant statements of principle, Sloss J in Bendigo and Adelaide Bank Ltd v Grahame[16] summarised the position as follows:[17]

Accordingly, as a matter of practice and procedure, what is contemplated by a hearing de novo is that on the hearing of the appeal, the party who was the applicant before the Judicial Registrar begins, and the appeal is determined on the evidence relied on before the judge and not that relied on before the Judicial Registrar, and 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.

20 The nature of an appeal de novo was also discussed by the High Court in Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission.[18] Gleeson CJ, Gaudron and Hayne JJ observed that, 'In the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing'.[19] The 'conferral of a right of appeal by way of a hearing de novo is construed as a proceeding in which the appellate body is required to exercise its powers whether or not there was error at first instance'.[20]

21 It follows from these principles that, in the case of a hearing de novo, the appeal court 'must exercise its own discretion'.[21] It has therefore been observed that 'the party succeeding below enjoys no advantage, and must, if he can, win the case a second time'.[22]

22 Applying these principles, because the stay appeal proceeds as a hearing de novo, the question at the hearing of the appeal was whether a stay should be granted of the 11 August orders, not whether the Judicial Registrar erred by dismissing the stay summons. To a significant extent, Mr Caspersz's, submissions were misdirected at the latter issue.

23 The principles which guide the exercise of the Court's discretion in relation to an application for a stay are well established. It is sufficient to refer to the following summary of the relevant principles given by the Court of Appeal in Uren v Uren:[23]

In deciding whether to order a stay of execution, the Court has a wide discretion and should take into account all the circumstances of the case.[24] The applicant bears the onus of demonstrating that a stay is justified.[25]

The power to order a stay will generally not be made unless the applicant demonstrates special or exceptional circumstances.[26] Such circumstances include where there is a real risk that it will not be possible to restore the applicant substantially to its former position if the judgment against the applicant is executed before the conclusion of the appeal.[27] However, the prospect that the appeal may be rendered nugatory must be balanced against the principle that the successful party is entitled to the fruits of its judgment.[28]

In order to justify the grant of a stay, an applicant should also demonstrate that there is at least an arguable ground of appeal.[29] Unless there is no arguable ground of appeal, or the appeal is not bona fide, it will usually be inappropriate for the Court to speculate as to the ultimate prospects of success.[30] The Court will ordinarily focus on matters that are relevant to the enforcement of the judgment, rather than matters that are relevant to its validity or correctness.[31]

24 The substance of the complaints raised by Mr Caspersz in his notice of appeal is that, at the directions hearing on 11 August 2022, and at various earlier times, he was denied procedural fairness and the Tribunal member acted with 'with bias and prejudice' towards him.[32] I am not in a position to assess Mr Caspersz's prospects of success in relation his appeal, and it would be inappropriate for me to speculate about that matter. However, for the purposes of determining the stay appeal, I will assume, without deciding, that the grounds of appeal relied on by Mr Caspersz disclose an arguable case.

25 Nevertheless, Mr Caspersz's notice of appeal must be dismissed because, having regard to all of the circumstances of the case, he has failed to demonstrate that there are special or exceptional circumstances to warrant the grant of a stay of the 11 August orders.

26 The circumstances of the case include that fact that the 11 August orders are interlocutory orders of a conventional and unexceptionable type. The orders the subject of challenge deal with ordinary interlocutory processes: the provision of points of claim, summonses for witnesses, the listing of a directions hearing, the representation of parties and the permission for a party to seek to strike out a claim. Although not determinative, the interlocutory and unremarkable nature of these orders, made in circumstances where the course of the VCAT proceeding has been protracted and delayed, are not of a type which would ordinarily give rise to special or exceptional circumstances warranting the ordering of a stay.

27 Despite the volume of Mr Caspersz's written submissions and affidavit material, there is scant reference within it to why it is said that there are special or exceptional circumstances warranting the grant of a stay. In substance, Mr Caspersz relies upon what he considers to be the overwhelming merit of his grounds of appeal. This approach wrongly conflates a consideration of whether there exists at least an arguable ground of appeal, which I have assumed in Mr Caspersz's favour, with whether there are special or exceptional circumstances.

28 In his submissions, Mr Caspersz appears to submit that special or exceptional circumstances exist because of the reconstitution appeal.[33] His argument appears to be that, if he is successful in that appeal, the 11 August orders will be rendered null and void. The fact that there are other proceedings on foot which, if successful, might result in the 11 August orders being overturned, which of course is the result Mr Caspersz seeks in his underlying appeal filed in this proceeding, is not a matter which contributes anything in the nature or special or exceptional circumstances in exercising the discretion as whether to grant a stay of the 11 August orders.

29 In his oral submissions, Mr Caspersz advanced two arguments as to the existence of special or exceptional circumstances. The first was a restatement of his attack on the lawfulness and legitimacy of the actions of the Senior Member in making the 11 August orders, including the information and affidavit material upon which he is said to have acted. Again, these claims are matters for the hearing of the appeal proper and cannot be assumed in Mr Caspersz's favour so as to demonstrate the existence of special or exceptional circumstances.

30 The second and more cogent way in which Mr Caspersz sought to demonstrate the existence of special or exceptional circumstances concerned the s 78 hearing fixed for 6 June 2023. Under s 78 of the Act,[34] the Tribunal may dismiss or strike out a proceeding if it believes that the applicant is conducting the proceeding in a way that unnecessarily disadvantages another party to the proceeding. Mr Caspersz submitted that, if a stay was not granted and his proceeding was dismissed under s 78 of the Act, he would suffer grave prejudice because he would irretrievably lose the right to have his claims in the VCAT proceeding heard and determined.

31 Mr Caspersz's concern in this respect is legitimate. There is a risk that, if a stay is not granted, it will not be possible to restore him substantially to his former position. I do not, however, consider that, in the overall circumstances of the case, this gives rise to special or exceptional circumstances warranting the grant of a stay.

32 First, in the scenario posited by Mr Caspersz, the Tribunal must first form the view that he has conducted the proceeding in a way that has unnecessarily disadvantaged the respondents to his application.

33 Secondly, even if the Tribunal reached this conclusion, it does not automatically follow that an order would be made dismissing the VCAT proceeding. Under s 78(2), the Tribunal has a discretion whether to order that a proceeding be dismissed or struck out. There are a number of matters which the Tribunal must take into account in exercising that discretion.[35] They include 'the important consideration that a party should ordinarily be heard upon the merits of matters in issue', and that s 78(2) confers power to make an order with very serious consequences, such that that it should be a 'remedy ... of last resort and not first resort'. [36] Further, in exercising its discretion, the Tribunal is required to consider whether there may be an alternative remedy available, which would not cause prejudice, but which would enable the proceeding to be heard on its merits.[37] It is not possible and would be inappropriate to anticipate how the Tribunal might address itself to and weigh these and other relevant considerations in exercising its discretion under s 78(2).

34 Thirdly, even if the Tribunal determines to exercise its discretion and to make an order under s 78(2) of the Act, it may determine to order that the VCAT proceeding be struck out, rather than dismissed. In that event, Mr Caspersz would be able to seek to reinstate the VCAT proceeding,[38] or potentially to commence a second proceeding.[39]

35 Fourthly, although the possibility that Mr Caspersz's appeal might be rendered nugatory can not be excluded in the event that a stay is refused, it remains necessary to weigh that consideration against the principle that a successful party is entitled to the fruits of its judgment. In the context of the stay appeal being in relation to the operation of interlocutory orders made in a proceeding which has had an unduly long and protracted interlocutory history, the entitlement of a successful party to the fruits of judgment is a matter which I give significant and greater weight.

36 Mr Caspersz's stay appeal is accordingly dismissed.

[1] Caspersz v Garry & Warren Smith Pty Ltd (Civil Claims) [2022] VCAT 1102, [1]. President Quigley dismissed an application brought by Mr Caspersz under s 108 of the Victorian Civil and Administrative Tribunal Act 1988 (the Act) for the Tribunal to be reconstituted in hearing his claim. Mr Caspersz has sought leave to appeal from that order (the reconstitution appeal).

[3] The specific orders the subject of the notice of appeal are those set out in paragraphs 2, 3, 7, 9, 10, 11 and 12 of the 11 August orders. On 26 October 2022, the Court made orders listing Mr Caspersz's application for leave to appeal and, if leave is granted, the hearing of the appeal, on 12 October 2023.

[5] Caspersz v Garry & Warren Smith Pty Ltd (Civil Claims) [2022] VCAT 1141.

[7] Specifically those paragraphs of the orders referred to in footnote 3 above.

[8] The Judicial Registrar also made orders providing for an affidavit filed by the second respondent to remain confidential and related matters which are not relevant to the disposition of the present appeal.

[9] [2019] VSCA 111 ('Quick').

[11] Mr Caspersz relied upon five affidavits which were before the Judicial Registrar which extended over more than 250 pages. At the hearing of the appeal, I gave him leave to rely upon a further four affidavits which collectively were more than 300 pages in length. The second respondent relied upon three affidavits which were before the Judicial Registrar which extended over 400 pages and, at the hearing of the appeal, I gave leave for it to rely upon a further affidavit which was about 50 pages in length.

[12] Supreme Court (General Civil Procedure) Rules 2015, r 84.05(4).

[13] [2021] VSC 755, [5].

[14] [2000] HCA 40; (2000) 203 CLR 172.

[15] Ibid, 180 [23] (Gaudron, McHugh, Gummow and Hayne JJ).

[16] [2020] VSC 86.

[18] [2000] HCA 47; (2000) 203 CLR 194 ('Coal & Allied Operations').

[21] Lai Ha v McCusker [2000] FCA 1173, [13].

[22] Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 at 297-298 per Glass JA referred to by Callinan J in Coal & Allied Operations (n 188) at [119].

[23] [2017] VSCA 300, [49]-[51].

[24] Maher v Commonwealth Bank of Australia [2008] VSCA 122 [23] (Dodds-Streeton JA, with whom Redlich JA agreed) ('Maher').

[25] Alexander v Cambridge Credit Corporation Ltd [1985] 2 NSWLR 685, 694 (Kirby P, Hope and McHugh JJA); Maher (n 244), [20]; Loftus v Australia and New Zealand Banking Group Limited [2016] VSCA 114, [7]-[8] (Whelan and Kaye JJA) ('Loftus').

[26] Cellante v G Kallis Industries Pty Ltd [1991] VicRp 99; [1991] 2 VR 653, 656 (Young CJ) ('Cellante'); Sandri v O'Driscoll [2013] VSCA 281 [39] (Santamaria JA, with whom Tate JA agreed); Bisognin v Hera Project Pty Ltd [2017] VSCA 195 [43] (Tate and Kyrou JJA). See also He v Huang [2017] VSCA 102 [49]-[51].

[27] Loftus (n 25), [7] (Whelan and Kaye JJA), citing Cellante (n 26), 655; Maher (n 244), [19]-[27]; Cross Country Realty Victoria Pty Ltd v Ubertas 350 William Street Pty Ltd [2015] VSCA 347 [79]-[90] (Kyrou and McLeish JJA); Scarborough v Lew's Junction Stores Pty Ltd [1963] VicRp 20; [1963] VR 129, 130 (Adam J).

[28] Maher (n 244), [27].

[29] Loftus (n 255), [8]; Maher (n 244), [27].

[30] Maher (n 244), [27].

[32] See the questions of law set out in [5] above.

[34] See above at [12].

[35] As set out by Ashley J (as he then was) in Bell Corp Victoria Pty Ltd and Ors v Stephenson [2003] VSC 255 at [51] ('Bell Corp Victoria').

[37] Ibid [68]; ACN 115 918 959 Pty Ltd (formerly known as Pearl Hill Pty Ltd) v Moulieris [2022] VSC 555, [87].

[38] Herald and Weekly Times Pty Ltd v Victoria [2006] VSCA 146, [19].

[39] Bell Corp Victoria (n 35), [54].