Applicant v Respondents

(a) The Supreme Court is seised (in its possession) of the dispute because Mr Caspersz's application for leave to appeal.[2] The Tribunal should not purport to interfere in a matter of which the Supreme Court is seised.

(b) It would be contrary to the orderly administration of justice for Mr Caspersz to be permitted to go back and forth between VCAT and the Supreme Court, pursuing a Supreme Court appeal when it suited him but making applications to VCAT when it suits him. This reason is similar to the reasons given in Quick in paragraph [32].

(c) One of the matters which should be considered when deciding any stay application is whether there is an arguable ground of appeal. If it were to fall to a VCAT member to decide a stay application the member would be in the invidious position of deciding whether another member's orders were arguably erroneous. The position is particularly invidious when, as with the present application, I as the member who made the order of 11 August 2022 would have to decide whether there is any arguable ground of appeal from it.

(d) Another matter which should be considered when deciding a stay application is whether "there is a real risk that it will not be possible to restore the applicant substantially to his or her former position if the judgment against the applicant is executed before the conclusion of the appeal." This is the consideration behind the VCAT practice of granting a stay for a short period only, to preserve the status quo until an application for leave to appeal is made to the Supreme Court. If Honda proceeds with its application for summary dismissal or striking out it may be successful before Mr Caspersz's application for leave to appeal is heard. However, if the Tribunal were to strike out the proceeding instead of dismissing it, no irrevocable harm would be done; if the appeal were to be allowed, the proceeding could be reinstated.

(e) At all events, I consider that the judgment in Quick binds me not to determine the stay application on its merits.

For those reasons I dismiss the application for a stay without adjudication on the merits.[3]

16 The reference to Quick in Senior Member Vassie's reasons is a reference to the Court of Appeal's decision in Quick v Lam-ly Pty Ltd (Quick).[4]

17 Senior Member Vassie said the following about the second respondent's application to dismiss or strike out Mr Caspersz's proceeding:

...Mr Bierenkrant, Honda's legal representative, made an oral application for an order dismissing or striking out the proceeding summarily for failure to comply with the order of 11 August 2022 without reasonable excuse. As no notice of that application had been given to Mr Caspersz in accordance with paragraph 10 of that order I refused to deal with it on the day of the hearing but said I would set a timetable for the parties to file and serve evidence and/or written submissions in preparation for a future hearing of Honda's application.

.....

The time of year at which I make this decision means that I should allow a considerable time for the parties to file and serve affidavit material, or written submissions, or both, upon Honda's application for an order for summary dismissal or striking out of the proceeding, and for a hearing date to be fixed for a date after the time has expired. So I make directions for Honda to file and serve by 24 February 2023, for any other party to file and serve by 24 March 2023, and for there to be a hearing of Honda's application before me (if available) on a date after 10 April 2023.

Should Mr Caspersz apply to the Supreme Court for an[d] obtain an order staying the operation of the Tribunal's order dated 27 October 2022, I would revoke those directions and vacate the hearing date, because the basis for Honda's application would have been removed.[5]

18 On 21 December 2022, VCAT issued a 'Notice of Section 75 Hearing' fixing a hearing under s 75 of the VCAT Act for 6 June 2023 and making procedural orders for the parties' preparation (21 December orders). Those orders were in the following terms:

1. When communicating with VCAT the parties must comply with the following directions:
   1. All emails must be sent to civil@vcat.vic.gov.au
   2. All parties who have not already done so must provide their email address to VCAT and to all other parties. They may do so at the time they provide the documents as directed in these orders.
   3. Any party contacting VCAT by email must put the VCAT reference number in the subject line of the email.
   4. Any party contacting VCAT by email must number any attachment to the email and arrange all attachments in proper sequence into one single PDF document.
   5. Any party corresponding with VCAT must include (i.e. copy or "cc") all other parties into that correspondence.

2. At least TWO WEEKS before the hearing each party must send:

a. by post or email to every other party and

b. by post to VCAT

a copy of all documents on which they intend to rely at the Section 75 hearing, including any written submissions.

1. The documents sent to VCAT and to the other parties must contain a cover sheet identifying the name of the party sending the documents and the VCAT reference number and must be sorted into a proper sequence or chronological order and given page numbers
2. The parties must access the Section 75 hearing at the allocated time and follow the instructions provided in the email from VCAT. VCAT will email the parties instructions to access the hearing two (2) business days prior to the hearing.
3. If a party fails to access the video or teleconference hearing at the allocated time, the hearing will proceed in the absence of that party and orders will still be made.

19 On 22 December 2022, Mr Bierenkrant, the second respondent's solicitor, wrote to VCAT in the following terms:

Dear Civil Claims List,

I write on behalf of the Secondnamed Respondent, and refer to our email sent yesterday with the attached Notice of Section 75 Hearing, listing the hearing for 6 June 2023.

It appears that there may have been an administrative oversight, and that the Notice should be for a Section 78 Hearing. I draw your attention to the following:-

1. On 8 July 2022, Sonny Scott (a representative of the Secondnamed Respondent), emailed the Registry with an Application for Directions Hearing or Orders and supporting Affidavit (see attached email). At paragraph 54 (being page 18 of the PDF), Mr Scott deposes that "I have reviewed the history of this matter and read section 78(1) of the VCAT Act and believe that there is a proper basis for the Tribunal to make an order under section 78(2)(a) and (c) of the VCAT Act." (my emphasis)
2. On 15 December 2022, Senior Member Vassie made Orders and provided Reasons (see attached). Of note is:-

   1. At paragraph 13 of the Reasons, Senior Member Vasse says that, "At the hearing on 27 October 2022 Mr Caspersz pursued his application for a stay order. Mr Bierenkrant, Honda's legal representative, made an oral application for an order dismissing or striking out the proceeding summarily for failure to comply with the order of 11 August 2022 without reasonable excuse6."

   2. Footnote 6 says that "VCAT Act 78(1)(a). I referred to in paragraph 10 of the order dated 11 August 2022 to it as a "further application" because I had heard and dismissed on that day a previous application for an order for summary dismissal or striking out of the proceeding." (my emphasis)

I would be obliged if you could review the above and please re-issue the Notice for a Section 78 Hearing to be listed for 2:00PM on 6 June 2023.

Regards,

Joel Bierenkrant | Senior Associate

20 On 17 January 2023, VCAT made the following orders amending the references in the notice and 21 December orders so that the references to s 75 now referred to s 78 of the VCAT Act:

1. The principal registrar is directed to send to the parties a fresh notice for the hearing listed for 6 June 2023 at 2:00 pm that is headed "Notice of Section 78 Hearing" (not "Section 75 Hearing") and that sets out section 78 of the Victorian Civil and Administrative Tribunal Act 1998, not section 75.
2. Paragraphs 2 and 4 of the order dated 21 December 2022 are amended by deleting "Section 75" and substituting "Section 78".

21 On 19 January 2023, VCAT issued a Notice of Section 78 Compliance Hearing, fixing the hearing for 6 June 2023.

22 Section 75 of the VCAT Act gives VCAT the power to make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion is frivolous, vexatious, misconceived or lacking in substance or is otherwise an abuse of process. The power to make an order under s 75 is exercisable by VCAT as constituted for the proceeding or a presidential member or a member who is an Australian lawyer. The order may be made on the application of a party or on VCAT's own initiative.

78 Conduct of proceeding causing disadvantage

(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

(d) causing an adjournment; or

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

(f) vexatiously conducting the proceeding; 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.

24 On 3 January 2023, Mr Caspersz filed a summons in his Supreme Court proceeding S ECI 2022 03693 appealing certain orders made by VCAT in the 11 August orders. Mr Caspersz's summons sought a stay of the 11 August orders. That summons was heard and dismissed by Baker JR on 8 February 2023. Baker JR gave ex tempore reasons for dismissing Mr Caspersz's summons.

25 On 22 February 2023, Mr Caspersz filed a notice of appeal from the orders of Baker JR dismissing his application for a stay of the 11 August orders. That appeal was heard by Moore J who delivered his judgment dismissing Mr Caspersz's appeal on 7 June 2023.

26 On 6 June 2023, Deputy President Lulham heard the second respondent's application under s 78 of the VCAT Act that Mr Caspersz's VCAT proceeding be dismissed. On 28 June 2023, Deputy President Lulham delivered his reasons and made orders dismissing Mr Caspersz's proceeding.

27 Mr Caspersz has filed a notice of appeal in this Court in proceeding S ECI 2023 03491, against the orders of Deputy President Lulham of 28 June 2023. Mr Caspersz's notice of appeal identifies fifteen questions of law. That appeal is currently listed for hearing on 11 June 2024.

28 As is evident from the above summary, Mr Caspersz's notice of appeal in this proceeding relates to:

(a) his unsuccessful application for a stay in VCAT in circumstances where his application in this Court for a stay of the same orders has been finally determined and refused; and

(b) programming orders made in VCAT relating to the s 75/s 78 hearing in circumstances where that hearing has been conducted, Mr Caspersz's VCAT proceeding was dismissed and his appeal of that dismissal is listed for hearing in this Court on 11 June 2024.

29 Mr Caspersz's notice of appeal articulated two proposed questions of law:

Question of law 1:

Did VCAT (Senior Member Vassie) correctly apply sections 149 and/or 118 of the VCAT Act 1998, and/or sections 97 [with respect to Procedural Fairness] and/or 98 [with respect to (1)(a) - Natural Justice and or (1)(d)] of the VCAT Act 1998 with continued bias (apprehended and/or otherwise) in relation to his decision to dismiss the Applicant's stay application in the VCAT proceeding without any adjudication on the merits?

Question of law 2:

Following Question of Law 1, did VCAT (Senior Member Vassie) correctly apply sections 75 and/or 78 of the VCAT Act 1998, and/or sections 97 [with respect to Procedural Fairness] and/or 98 [with respect to (1)(a) - Natural Justice] and/or s 118 of the VCAT Act 1998 with continued bias (apprehended and/or otherwise) in relation to his decision to allow the Second Respondent to make an application for summary dismissal or striking-out of the VCAT proceeding in accordance with VCAT's orders of each of 15th December 2022, 21st December 2022 and 17th January 2023?

30 Mr Caspersz relied on two proposed grounds of appeal which were prolix, repetitive and overlapping, containing many paragraphs and subparagraphs.

31 Mr Caspersz's grounds are not easy to follow and some aspects are expressed at a level of generality which does not reveal the specific complaint he wishes to make. For example, Mr Caspersz included the following as part of his second ground of appeal:

A number of the reasons of 15th December 2022 (in addition to those outlined above) outlined by the VCAT Member relevant to this Ground of Appeal continue to assert FALSE statements. ALL of these FALSE statements made by the VCAT Member is (sic) proven by way of the respective correspondence, including affidavit material, which has already been issued and/or filed and/or served in both the VCAT proceeding and the Supreme Court proceeding S ECI 2022 03693.

32 The first ground of appeal can be summarised as follows:

(a) Senior Member Vassie's bias towards Mr Caspersz is evident from:

(i) false statements made by Senior Member Vassie about Mr Caspersz's claim being for the return of the purchase price of the vehicle in Senior Member Vassie's reasons dated 15 December 2022;

(ii) his statement that 'if the Tribunal were to strike out the proceeding instead of dismissing it, no irrevocable harm would be done; if the appeal were to be allowed, the proceeding could be reinstated' which demonstrated Senior Member Vassie had already formed an underlying predetermined biased position because it does not allow for any other outcome in the VCAT proceeding;

(b) Senior Member Vassie's reliance on Quick to dismiss Mr Caspersz's stay application was incorrect because:

(i) Quick is distinguishable from Mr Caspersz's case because Quick dealt with applications for leave to appeal to the Court of Appeal from the trial division and not appeals from VCAT to the trial division of the Supreme Court;

(ii) Quick is inconsistent with s 149 of the VCAT Act which enables VCAT to stay its own order pending appeal;

(iii) to the extent Senior Member Vassie relied on Pepper Finance Corporation Ltd v Thompson (Residential Tenancies) (Pepper Finance)[6] to demonstrate that VCAT has applied the principles in Quick in cases in all divisions or lists at VCAT_,_ both Pepper Finance and Quick related to disputes between landlords and tenants and are not authority for the application of their principles to other sorts of disputes;

(iv) Senior Member Vassie's statement in his reasons 'that, as a general rule, applications for stay of a Tribunal order, once a Supreme Court application for leave to appeal has begun, should be made to the Supreme Court, not to VCAT under s 149 of the VCAT Act', could lead to arbitrary results in circumstances where appellants do not control when their appeals are listed in the Supreme Court; and

(v) Senior Member Vassie's decision leaves s 149 of the VCAT Act inapplicable.

33 The second ground of appeal can be summarised as follows:

(a) Mr Caspersz appealed the 11 August orders to this Court on 8 September 2022 and requested that VCAT stay the 11 August orders in VCAT on 20 September 2022, i.e. he undertook both these actions before the date he was to file his Revised Points of Claim under the 11 August orders;

(b) the respondents did not comply with order 10 of the 11 August orders which required the respondents to give Mr Caspersz reasonable notice of any application for an order to dismiss or strike out Mr Caspersz's proceeding;

(c) as no notice had been given and Mr Caspersz had a reasonable and legitimate excuse for not complying with the order to file his Revised Points of Claim, it was unreasonable of Senior Member Vassie to give the respondents an additional opportunity to submit an application for orders dismissing or striking out Mr Caspersz's proceeding;

(d) Senior Member Vassie's statements in his reasons of 15 December 2022 that Mr Caspersz had sought to add a further claim to the proceeding 'exactly when is not clear', is false because Mr Caspersz first made this request to VCAT on 10 September 2020;

(e) Mr Caspersz's Points of Claim dated 27 November 2019 and Additional Points of Claim dated 25 June 2020 had been accepted by VCAT and the respondents filed Points of Defence responding to those documents, demonstrating there was no defect in Mr Caspersz's existing Points of Claim documents; and

(f) on 17 January 2023, the VCAT member amended the second respondent's summary dismissal or strike out application from an application made under s 75 to an application made under s 78 of the VCAT Act, but s 78 does not provide for a party to make an application to dismiss or strike out an application, whereas s 75 does.

34 During the hearing Mr Caspersz raised numerous issues in addition or tangential to the grounds of appeal in his notice of appeal. He often referred to documents exhibited to his various affidavits or statements said to be found within those documents.

35 The substance of Senior Member Vassie's reasons of 15 December 2022 runs to six pages. In support of his notice of appeal and in response to the second respondent's application to dismiss that appeal, Mr Caspersz has filed affidavit material which, with exhibits, runs to 964 pages and 80 pages of written submissions. The first paragraph of Mr Caspersz's written submissions states that he 'relies on all prior material filed in the Court proceeding, including his affidavit of 26th June 2023, which relies on the specific material in the related Court proceeding S ECI 2022 03693 and the VCAT proceeding C6315/2019'.

36 Mr Caspersz is a self-represented litigant and entitled to the assistance of the Court. I can well understand that Mr Caspersz wanted to ensure that all material that may be relevant to his proceeding was before the Court. As was explained to Mr Caspersz during the hearing of the second respondent's dismissal application, it is neither reasonable nor efficient for any party to litigation to file large volumes of documents and then refer generally to filed material without taking the Court to the specific document or part of the specific document that the party wishes to refer to. General references to a document which is exhibited to one of the affidavits, without identifying which affidavit and which exhibit or part of an exhibit is being referred to, assumes the opposing party and the Court will correctly identify the document. Such an assumption is unfair, inefficient and prejudicial to the party left to respond to such a submission. More than once during the course of the hearing both parties were reminded of the need to take the Court to any specific document that party sought to rely upon.

37 I have had regard to all of the material filed by the parties on the second respondent's dismissal application.

38 Mr Caspersz provided lengthy written submissions which he also addressed in his oral submissions. Some of those submissions related to Deputy President Lulham's orders of 28 June 2023 which are the subject of Mr Caspersz's separate appeal proceeding and were not relevant to the determination of this application.

39 In summary, I understood Mr Caspersz's main submissions to be:

(a) the 11 August orders permitted the second respondent to make a further application to strike out or summarily dismiss Mr Caspersz's proceeding only if Mr Caspersz did not comply with the order that he file a Revised Points of Claim by 22 September 2022;

(b) Mr Caspersz requested a stay of the 11 August orders by email to VCAT dated 20 September 2022, i.e. two days prior to the 22 September 2022 deadline for him to file his Revised Points of Claim;

(c) Mr Caspersz's request for a stay provides Mr Caspersz with a reasonable excuse for not complying with the order requiring him to file his Revised Points of Claim document;

(d) at the hearing in VCAT on 27 October 2022, Senior Member Vassie said, 'The orders will either be agreeing with Mr Caspersz that stay orders should be made because of the appeal, or if I don't agree with that, then I will set out a timetable and arrange for a fixing of the hearing date for the striking-out application'; and

(e) the 15 December orders wrongly included the option for the second respondent to apply for summary dismissal or strike out, rather than only strike out.

40 In addition, Mr Caspersz submitted the following in his written submissions:

(a) x he second respondent's application to dismiss Mr Caspersz's proceeding is in conflict with the Court's order of 22 March 2023 which lists his application for leave and, if leave is granted, the appeal, for hearing on 12 October 2023;

(b) Mr Caspersz's application for leave to appeal the 15 December orders cannot be lawfully assessed until after a final determination of his appeal against the 11 August orders in Supreme Court proceeding S ECI 2022 03693, which is currently listed for hearing on 12 October 2023;

(c) Senior Member Vassie's orders of 17 January 2023 in the VCAT proceeding did not make any reference to the correction of a mistake as referenced under s 119 of the VCAT Act; and

(d) the second respondent's dismissal application is vexatious, frivolous or an abuse of process.

41 It is convenient to note here that I do not agree with Mr Caspersz that the fact the Court has listed his application for leave to appeal and, if leave is granted, his appeal for hearing on 12 October 2023 prohibits the second respondent from bringing its current application or me from determining that application. Similarly, I do not agree that Mr Caspersz's submission about the appropriate sequence in which his proceedings should be determined, precludes me from determining the second respondent's application. Mr Caspersz was given fair notice of the second respondent's application to dismiss his application for leave. He filed extensive material in response and made oral submissions. In my view Mr Caspersz suffers no prejudice by the hearing and determination of the second respondent's application now.

42 Rule 4.08(8) of the Miscellaneous Rules provides:

(8) The Court may dismiss the appeal or the application for an extension of time or for leave to appeal (as the case may be) if satisfied that -

(a) the notice of appeal does not identify sufficiently or at all a question of law on which the appeal or proposed appeal may be brought;

(b) the appellant or applicant does not or would not have an arguable case on appeal or to refuse leave would impose no substantial injustice; or

(c) the appeal or application is frivolous, vexatious or otherwise an abuse of the process of the Court.

43 In Holt v Director of Housing,[7] Derham AsJ summarised the law relevant to an application for leave to appeal under s 148 of the VCAT Act:

A party to proceedings before the Tribunal may appeal on a question of law pursuant to s 148 of the VCAT Act. This section confers judicial power to examine for legal error what has been done in the Tribunal. Despite the description of proceedings under the section as an 'appeal', it confers original not appellate jurisdiction; the proceedings are 'in the nature of judicial review'. The identification of a question of law is a qualifying condition to the ground of appeal and also the subject matter of the appeal itself.

An application for leave to appeal must be made within 28 days after the day of the order. Leave to appeal may only be granted if the Court is satisfied that the appeal has a real prospect of success, as opposed to fanciful prospects of success. This requirement was introduced in 2017 and is a reflection of the test for summary determination of proceedings under Part 4.4 of the Civil Procedure Act 2010 (Vic). The text of s 148(2A) is as follows:

The Trial Division of the Supreme Court may grant an application for leave to appeal under this section only if it is satisfied that the appeal has a real prospect of success.

However, leave to appeal may be refused even if the Court is satisfied that an appeal has a real prospect of success. The overriding consideration in determining an application for leave to appeal under s 148 is the justice of the case as it appears to the Court. That means justice to all parties, not only the applicant for leave.

This approach to the question of granting leave to appeal was conveniently summarised by Warren CJ in Myers v Medical Practitioners' Board of Victoria. That summary is as follows:

(a) Whether leave is granted or not must always depend upon the justice of the particular case;

(b) if leave is to be granted, the applicant must at least identify a question of law (as distinct from a question of fact) which is important to the substantive appeal's succeeding or failing;

(c) the applicant need not establish an error below - that is for the appeal itself. Rather, the applicant will be required to show that there is a real or significant argument to be put that error exists;

(d) although not essential, the applicant may identify a question of law that is of general or public importance. This will weigh in favour of granting leave;

(e) once a question of law has been identified which bears directly upon the relief which will be sought in the appeal, and once it has been shown that there is sufficient doubt attending that question to justify the grant of leave to appeal, leave will ordinarily be granted if the order below is a final order or final in its effect; and

(f) where the order sought to be appealed is an interim order, there may be reason bearing on the justice done to both parties for not granting leave to appeal, for example, where granting leave to appeal will result in an unnecessary interruption to the substantive proceedings. [footnotes omitted]

Warren CJ also pointed out in Myers that the guidelines laid out are not hard and fast rules and set out a part of the following passage from the reasons of Phillips JA in Hulls:

There is an obvious danger in seeking to summarise the considerations which bear upon the granting of leave to appeal. Ultimately what must govern is the justice of the case as it appears to the Court from which leave to appeal is sought, and that means justice to all parties, not just the applicant. As I said at the outset it is not appropriate for us to do any more than lay down guidelines and any guidelines will sometimes be found inadequate; but with that rider, the foregoing might be summarised along the following lines: 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 a 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.

Other considerations that may bear on whether leave to appeal should be granted in a particular case include:

(a) the importance of the question of law in respect of which leave is sought;

(b) whether the proposed appeal would be futile or of limited practical impact in the circumstances of that case;

(c) whether the claimed error of law made any difference to the order made by the Tribunal.

It is clear that s 148 of the VCAT Act does not provide an opportunity for a rehearing on the merits, nor does it allow an appeal on a question of fact, as the VCAT Act has vested in the Tribunal the right to makes (sic) decisions on the facts.

Does Mr Caspersz's notice of appeal identify sufficiently or at all a question of law on which the appeal or proposed appeal may be brought?

44 Mr Caspersz is a self-represented litigant. The questions of law contained in his notice of appeal are not expressed as clearly as one might expect from a legal practitioner. That said, I understood Mr Caspersz's questions of law to essentially raise:

(a) did VCAT (Senior Member Vassie) correctly apply s 149 of the VCAT Act in dismissing Mr Caspersz stay application?; and

(b) did VCAT (Senior Member Vassie) breach its obligation to act fairly or fail to abide by the rules of natural justice in allowing the second respondent to make a further application for summary dismissal or striking-out of Mr Caspersz's VCAT proceeding?

45 It is well settled that whether VCAT mistakes the proper construction of a statutory provision is capable of being a question of law.[8] Similarly, whether VCAT breached the rules of natural justice or procedural fairness is a question of law for the purposes of s 148 of the VCAT Act.[9] I am satisfied that Mr Caspersz has sufficiently identified the questions of law on which his proposed appeal is brought.

Does Mr Caspersz have an arguable case on appeal or would refusing leave impose no substantial injustice?

46 I am not satisfied that Mr Caspersz's ground of appeal that Senior Member Vassie demonstrated bias by making false statements about Mr Caspersz's claim, is arguable. Mr Caspersz complained about statements made by Senior Member Vassie in a section of his reasons dealing with the subject matter of Mr Caspersz's VCAT proceeding and specifically the extent of Mr Caspersz's claims:

Mr Caspersz purchased a new Honda motor car from a Honda dealer, Garry and Warren Smith Proprietary Limited, the first respondent. At the time that he took delivery of it, he alleges, there was damage to its paintwork. Supply of a car in a defective condition, if that is what occurred, amounted to a failure to comply with the supplier's statutory guarantee of acceptable quality: a failure for which the manufacturer or importer, the second respondent Honda Australia Pty Ltd ("Honda"), became liable also. Mr Caspersz alleges that on occasions when the dealer has returned the car to him after servicing it further damage to it has been evident. The only remarkable thing about such an apparently simple claim is that Mr Caspersz is suing for the return of the purchase price as compensation for the alleged defects.

....

Later - exactly when is not clear - Mr Caspersz wished to add another claim to the proceeding. Honda had notified to owners a recall of some of its models to check whether there was a faulty fuel pump. Mr Caspersz wished to allege that the fuel pump in his car was faulty: another defect entitling him to a return of the purchase price. His wish to add the claim about the fuel pump prompted the Tribunal, as part of its case management, to require Mr Caspersz to file and serve a complete and properly structured document, by way of "Revised Points of Claim."[10]

47 The test for apprehended bias is whether a fair-minded lay observer with knowledge of the material objective facts might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question at hand.[11] The test is applied by first, identifying what is said that might lead a decision-maker to decide a case other than on its legal and factual merits, and second, articulating the logical connection between the matter and the apprehended deviation from the course of deciding the case on the merits. In my view these statements of the Senior Member, taken in context, simply seek to explain how Mr Caspersz's case had evolved from a claim based on defective paintwork and damage to his car following servicing to include more significant defects, justifying a greater damages claim. While perhaps infelicitously expressed they are incapable in my view of logically leading an objective lay observer to reasonably apprehend that the Senior Member did not decide Mr Caspersz's stay application on its legal and factual merits.

48 I am also not satisfied that Mr Caspersz ground of appeal that Senior Member Vassie's bias towards him was evident because his statements about the possible outcomes of the second respondent's dismissal/strike out application did not include the possibility that their application would be unsuccessful, is arguable. In the context of Senior Member Vassie's reasons, it is clear that the Senior Member was considering whether there was a risk that Mr Caspersz could not be restored to his former position if the second respondent's application was determined before Mr Caspersz's appeal. In that context it was not necessary for the Senior Member to consider a scenario in which the second respondent's application was unsuccessful because in that case the status quo would be maintained and Mr Caspersz's position would be unchanged.

49 I turn now to that part of Mr Caspersz's first ground dealing with s 149 of the VCAT Act and Quick. Section 149(1) of the VCAT Act provides that '[t]he Tribunal, on the application of a party or on its own initiative, may stay the operation of any order it makes pending the determination of any appeal that may be instituted under this Part.' Sections 148 and 149 both fall within Part 5 of the VCAT Act.

50 Senior Member Vassie's reasons record that he considered that the judgment in Quick bound him not to determine Mr Caspersz's stay application on its merits.

51 In Quick, the relevant VCAT proceeding had been the subject of an unsuccessful appeal to the trial division of the Supreme Court. Mr Quick applied for leave to appeal the decision of the trial division judge to the Court of Appeal. He also applied for a stay in the Court of Appeal. Pending the hearing of those applications by the Court of Appeal, Mr Quick applied for and was granted by VCAT a stay of the VCAT orders the subject of the dismissed appeal to the trial division. The respondent in Quick sought leave to appeal the VCAT stay order in the trial division and in the Court of Appeal.

52 In deciding whether or not to grant Mr Quick a stay, Beach JA set out the well-established principles governing applications for a stay.[12] In considering the application of those principles to the facts of Mr Quick's case, Beach JA said:

The material filed in this Court by Mr Quick discloses a plethora of complaints he has in relation to the conduct of the proceedings to which he is a party, both in VCAT and the Trial Division. Mr Quick's preferred position in relation to a stay appears to be that, having lost in the Trial Division, he should now be permitted to re-agitate various issues at VCAT, including the question of whether the orders made in VCAT on 8 January 2019 should be stayed. In support of his contentions, Mr Quick relied upon s 29 of the Supreme Court Act 1986, which requires courts to exercise their jurisdiction in every proceeding:

as to secure that, as far as possible, all matters in dispute between the parties are completely and finally determined, and all multiplicity of proceedings concerning any of those matters is avoided.

As is recognised by the terms of the VCAT order made on 26 April, however, it is this Court which ultimately decides whether or not orders, made in proceedings which are the subject of an application for leave to appeal to this Court, should be the subject of a stay. To hold otherwise would countenance the possibility of the parties going back and forth between the tribunal that first heard the matter and the court to which there is an avenue of appeal - with the concomitant possibility of the tribunal staying the effect of orders made on appeal, in circumstances where the court to which there was an appeal might not be prepared to make an order to like effect.

Mr Quick's attempts to re-engage VCAT's jurisdiction must be rejected. The question now is whether, in all the circumstances, he has established that a stay of the orders already made against him in VCAT on 8 January 2019 (and upheld in the Trial Division on 12 April 2019) should continue. That is a matter for this Court. Contrary to Mr Quick's submissions, the course he has adopted (and continues to propose), far from avoiding the multiplicity of proceedings referred to in s 29 of the Supreme Court Act 1986, has brought about the creation of unnecessary additional proceedings both at VCAT and in the Trial Division.

In its application to have the VCAT orders of 26 April brought to an end, Lam-Ly also sought an order in this Court that it be granted leave to appeal from those orders. Section 148 of the VCAT Act, however, provides that an appeal from an order of the Tribunal, constituted other than by the President or a Vice-President, is to the Trial Division, and not this Court. The order of 26 April was made by a deputy president, not the President or a Vice President. There is thus no occasion for this Court to hear an application for leave to appeal from the 26 April orders.

That said, the issue of whether the stay (and injunction) granted by VCAT on 26 April until the hearing of the application for leave to appeal from the orders of Garde J 'or other order' is a matter properly before, and for, this Court. Further, it is a matter to be determined in accordance with the principles governing stay applications to which I have already referred.[13]

53 Beach JA then proceeded to consider whether Mr Quick had established an arguable ground of appeal or circumstances justifying the granting of a stay or the continuance of the stay ordered by VCAT. Ultimately, Beach JA decided against Mr Quick on both of those issues.

54 Mr Caspersz is not required to establish an error but rather that there is a real or significant argument to be put that error exists.[14] The plain English terms of s 149 of the VCAT Act do not limit the power of VCAT to stay the operation of any order it makes pending the determination of any appeal instituted under Part 5 of the VCAT Act. The terms of s 149 are not on their face, and in the context of an appeal from VCAT to the trial division of this Court, easily reconcilable with the reasoning of Beach JA in Quick. Mr Caspersz's preferred construction of the section, that VCAT may grant a stay of its orders pending appeal, is at least arguable.

55 I am satisfied that the following aspects of Mr Caspersz's first ground are arguable. Senior Member Vassie's reliance on Quick to dismiss Mr Caspersz's stay application was incorrect because:

(a) Quick is distinguishable from Mr Caspersz's case because Quick dealt with applications for leave to appeal to the Court of Appeal from the trial division and not appeals from VCAT to the trial division of the Supreme Court;

(b) Quick is inconsistent with s 149 of the VCAT Act which enables VCAT to stay its own order pending appeal; and

(c) Senior Member Vassie's decision leaves s 149 of the VCAT Act inapplicable.

56 Mr Caspersz's contention that the requirement for appellants to make any stay application to this Court rather than VCAT could lead to arbitrary results because appellants do not control when their appeals are listed in this Court, is not arguable. Mr Caspersz seemed to be arguing that there may be delay in listing an application for a stay in this Court, compared with the time such a listing could be organised in VCAT. This argument appeared to be without any evidentiary basis and really just speculation. It is not properly arguable.

57 Notwithstanding that I have found at least one aspect of Mr Caspersz's proposed first ground of appeal arguable, I have nonetheless decided that to refuse leave to Mr Caspersz to appeal on the basis of his first ground would impose no substantial injustice. First, the dismissal of Mr Caspersz's stay application by Senior Member Vassie was an interlocutory order. It did not finally determine the rights of the parties. Second, Mr Caspersz made a further unsuccessful application for a stay in this Court. Third, an appeal on this ground would serve no practical purpose in circumstances where Mr Caspersz's underlying VCAT proceeding has now been finally dismissed and Mr Caspersz has filed an application for leave to appeal that dismissal. Fourth, Mr Caspersz's dispute with the respondents has become hopelessly fragmented with Mr Caspersz prosecuting a multiplicity of proceedings relating to the preparation of the VCAT proceeding for hearing and Mr Caspersz's conduct of that proceeding. To allow Mr Caspersz to pursue an appeal on his first ground would increase the time and costs and decrease the efficiency of finally resolving the dispute between Mr Caspersz and the respondents. Such a course would be contrary to the overarching purpose of the Civil Procedure Act 2010 (Vic).

58 I am not satisfied that Mr Caspersz would have an arguable case on his second question of law that Senior Member Vassie breached the rules of natural justice and procedural fairness in allowing the second respondent to make a further application to strike out or dismiss Mr Caspersz's proceeding.

59 Mr Caspersz's ground in relation to his second question of law is predicated on an assumption that his request for a stay constituted a reasonable excuse for non-compliance with VCAT's order 2 of the 11 August orders that he file a Revised Points of Claim. Mr Caspersz has not provided any basis for that assumption and it is an assumption that is not supported by ordinary case management principles that require compliance with orders unless they have been stayed or varied.

60 I also don't regard as arguable Mr Caspersz's assertion that it was unreasonable of Senior Member Vassie to give the respondents an additional opportunity to submit an application for orders dismissing or striking out Mr Caspersz's proceeding. It was clear that the second respondent wished to make the application on 27 October 2022 but had not provided the requisite notice to Mr Caspersz. In my view, the only reasonable course for Senior Member Vassie was to adjourn that application to ensure Mr Caspersz had time to prepare to respond to it.

61 Mr Caspersz argument that s 78 of the VCAT Act does not provide for a party to apply to make an application to dismiss or strike out a proceeding is not, in my view, arguable. The thrust of Mr Caspersz's argument is that because s 78 is silent on who may make an application, the second respondent is not permitted to make an application under s 78. Silence on who may make an application does not in my view arguably equal prohibition from making such an application.

62 I have dealt with Mr Caspersz's arguments about Senior Member Vassie's remarks about Mr Caspersz's claims above. It is unnecessary to address those issues again here.

63 I do not find Mr Caspersz's submissions that Senior Member Vassie incorrectly allowed the second respondent to make an application to dismiss or strike out Mr Caspersz's proceeding, as opposed to only a strike out application, to be arguable. Mr Caspersz's argument seeks to give preference to language used by the second respondent's legal representative and Senior Member Vassie on 27 October 2022 over the language used by those people on other occasions and in the 11 August orders. It is clear from the terms of the 11 August orders that Senior Member Vassie referred to an application by the second respondent to strike out or dismiss Mr Caspersz's proceeding.

64 For the sake of completeness, Mr Caspersz's submission that Senior Member Vassie's orders of 17 January 2023 did not reference s 119 of the VCAT Act is not a basis for finding those orders invalid. Section 119 of the VCAT Act provides VCAT with the power to correct mistakes in its orders. There is no requirement within that section for the correcting or corrected orders to reference s 119 of the VCAT Act. Mr Caspersz did not point to any authority for such a requirement.

65 In any event, my view is that to refuse leave in relation to Mr Caspersz's second question of law would impose no substantial injustice on Mr Caspersz. First, the orders sought to be appealed were interlocutory and did not finally determine the parties' right. Second, an appeal would serve no practical purpose where Mr Caspersz has already filed an application for leave to appeal the dismissal of his VCAT proceeding. Third, an appeal would undesirably continue the fragmentation of proceedings involving Mr Caspersz and the respondents.

Is Mr Caspersz's notice of appeal frivolous, vexatious or otherwise an abuse of the process of the Court?

66 Given my findings above it is strictly unnecessary to consider whether Mr Caspersz's proposed appeal is frivolous, vexatious or otherwise an abuse of the process of the Court.

67 The terms frivolous and vexatious are used to describe a variety of circumstances in which a claim is found to be groundless, or lacking a legal basis or merit.[15]

68 While what will constitute an abuse of process is 'insusceptible of a formulation comprising closed categories'[16] an abuse of process will usually be found where:

(a) the Court's processes are invoked for an illegitimate or collateral purpose;

(b) the use of the Court's processes is unjustifiably oppressive to a party; or

(c) the use of the Court's procedures would bring the administration of justice into disrepute.[17]

69 In my view Mr Caspersz's proceeding is an abuse of process in that it is unjustifiably oppressive to the respondents. The circumstances of Mr Caspersz's notice of appeal, referred to above at paragraph [28] mean that the hearing and determination of this proceeding can serve no practical purpose. The proceeding seeks to challenge interlocutory orders made in a VCAT proceeding that has since been decided and appealed. To allow this proceeding to continue would be unjustifiably oppressive to the other parties because it would require them to expend resources defending a proceeding that serves no practical purpose.

70 It follows that I do not agree with Mr Caspersz's assertion that the second respondent's dismissal application is vexatious, frivolous or an abuse of process. I will grant the second respondent's application and dismiss the proceeding.

71 Section 148(2) of the VCAT Act requires an application for leave to appeal to be filed within 28 days after the day of the order of VCAT. The Court has the power under s 148(5) of the VCAT Act to extend that time limit.

72 Mr Caspersz's notice of appeal was filed on 14 February 2023. It seeks to appeal the orders made by VCAT on 15 December 2022, 21 December 2022 and 17 January 2023. On its face, the only order made within the time limit that Mr Caspersz's notice of appeal seeks to challenge was the 17 January 2023. Put another way, Mr Caspersz requires an extension of time to file his notice of appeal to include the 15 December order and the 21 December order.

73 Mr Caspersz's primary submission on the issue of an extension of time is that an extension of time is not required because the 17 January 2023 order really just amended the orders made by VCAT on 15 December 2022 and 21 December 2022. Mr Caspersz's secondary submission was that if the Court determined an extension of time was required, he would make that application.

74 In his written submissions Mr Caspersz submitted that he could not proceed with his notice of appeal earlier because the second respondent had raised the s 75/s 78 issue with VCAT on 22 December 2022 which was not clarified until the VCAT order of 17 January 2023. Mr Caspersz also said that he provided a draft notice of appeal to both VCAT and the second respondent on 12 January 2023 and so no party was prejudiced by any delay.

75 The second respondent submitted that Mr Caspersz did require an extension of time. Its summons seeks an order, in the alternative, that the Court dismiss any application by Mr Caspersz for an extension of time.

76 As Mr Caspersz has not made any application to extend time and because I have decided that Mr Caspersz's proceeding should be dismissed anyway, the second respondent's application in relation to this issue is redundant.

77 For the reasons given above I have decided that Mr Caspersz's notice of appeal should be dismissed.

78 I ask that the parties confer on the question of costs of the proceeding. If the parties are unable to reach agreement on the terms of any costs order within 28 days of the date of this judgment, the matter will be relisted for oral submissions on costs.

GARRY & WARREN SMITH PROPRIETARY LIMITED (ACN 004 753 333)

GARRY & WARREN SMITH GROUP (ABN 53 394 190 214 (FROM 1ST JULY 2020)

[1] The second respondent's summons sought orders, in the alternative, dismissing any application by Mr Caspersz to extend the time to file his notice of appeal. Mr Caspersz maintains that his notice of appeal was filed within time and, accordingly, he has not made an application for an extension time.

[2] This is a reference to Supreme Court proceeding S ECI 2022 03693 commenced by Mr Caspersz and seeking leave to appeal some of the 11 August orders.

[3] Caspersz v Garry & Warren Smith Proprietary Limited (Civil Claims) [2022] VCAT 1441, [25]-[26] (citations omitted) (Caspersz).

[4] [2019] VSCA 111 (Quick).

[5] Caspersz (n 3) [13], [27]-[28].

[6] [2019] VCAT 994.

[7] [2021] VSC 270, [49]-[55] (citations omitted).

[8] Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331.

[9] Teen Entertainment Enterprise Network Pty Ltd v A & H Natoli Pty Ltd [2020] VSC 388, [41].

[10] Caspersz (n 3) [7], [10] (citations omitted).

[11] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337.

[14] Myers v Medical Practitioners' Board of Victoria [2007] VSCA 163; (2007) 18 VR 48, [28].

[15] Hoh v Frosthollow Pty Ltd [2014] VSC 77, [12].

[16] Batistatos v Roads & Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [9] (Gleeson CJ, Gummow, Hayne and Crennan JJ).

[17] Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251, 286 (McHugh J); Avery v Manno (2020) 62 VR 281, 293 [32].