'The only dealings I have had with the applicant are in the Tribunal proceedings namely:

(a) In this proceeding C6315/2019, arising from the Tribunal's receipt of the applicant's email of 3 August 2020, making an Order in Chambers on 5 August 2020 which arranged for a directions hearing to be held in November 2020; conducting that directions hearing on 9 November 2020; and conducting the directions hearing on 1 February 2021; and

(b) In proceeding C7173/2019, hearing and determining an application by the applicant, which has been reported on Austlii as: Caspersz v St Gregory the Great Primary School [2020] VCAT 1307.'

1. An application and supporting affidavit were filed on 11 March 2021, one day before the expiration of the time fixed for filing. The grounds on which the applicant relied were:

'1. VCAT correspondence dated 5 February 2021 in relation to VCAT case C6315/2019 makes specific reference to a completely separate VCAT case C7173/2019 on the Austlii website. However the reference of this case (which also makes specific reference to another very related VCAT case) on the Austlii website represents a 'breach' to both the Applicant and Respondent in those VCAT cases, being supported by an existing order in that matter which was made under section 146(4)(b) of the VCAT Act 1998. The applicant has reported that breach to VCAT President Michelle Quigley. Therefore the Applicant in VCAT case C6315/2109 is not able to lodge and serve any documents or hearings (in accordance with VCAT order 3 dated 4 February 2021) about totally separate unrelated VCAT cases regarding different Applicants and Respondents in three separately unrelated Respondents in VCAT case C6315/2019.'

'2. Deputy President Lulham would be clearly aware of a formal compliant (still on foot) that was made by the Applicant about him by email on 17 December 2020 in relation to VCAT case C7173/2019 and the re[s]tated VCAT case involving the same Applicant in VCAT case C6215/2019.'

1. The date fixed by Deputy President Lulham for the adjourned directions hearing was 26 April 2021. The reconstitution application was listed for hearing before me on 12 May 2021. It is important to note responsibility for listing the reconstitution application rests with listings, not Deputy President Lulham, and depends on the availability of a presidential member to hear the application.

1. It follows that the reconstitution application had not been heard by 26 April 2021, the time fixed on 1 February 2021 for the directions hearing. On 26 April, Deputy President Lulham was again listed to conduct the directions hearing. The applicant objected to him conducting the directions hearing. The respondents submitted the directions hearing should proceed and did not object to Deputy President Lulham conducting it. Deputy President Lulham, noting the reconstitution hearing had not been held, and no reconstitution order had been made, proceeded to conduct the further directions hearing. He made directions including for the filing by the applicant of proposed further amended points of claim, and fixed the matter for a 3 day hearing commencing 12 July 2021.

1. In email exchanges between the applicant and the Tribunal following the 26 April 2021 directions hearing, the applicant indicated his unhappiness with the orders, particularly in relation to the filing of proposed further amended points of claim, and indicated his intention to rely on matters occurring in that further directions hearing in support of his reconstitution application.

1. At the commencement of the reconstitution hearing, I confirmed with the applicant the hearing was confined to an application for reconstitution. Following the hearing of 26 April the applicant had made a number of requests to vacate or vary or suspend the operation of the orders made on that day in respect of the substantive claim. Those requests were not before me.

1. In a sense, the application for reconstitution is moot, as Deputy President Lulham had concluded each of the 1 February and 26 April 2021 directions hearing's in the proceeding which had been listed before him. Although the proceeding (that is the substantive claim against the respondents) has not concluded, the individual directions hearings in the proceeding over which he has presided have.

1. Nonetheless, as the first directions hearing had proceeded in ignorance of the objection to Deputy President Lulham not conducting the hearing, and the second occurred over the protest of the applicant, it appears the application for reconstitution is in effect still a live one, and has expanded to include the 26 April 2021 hearing, as well as the 1 February hearing. If reconstitution by reason of bias is successful, it would follow that the orders of 26 April should be revisited, and a reconstituted Tribunal should conduct a further directions hearing. I therefore gave the applicant leave to include reference to the 26 April hearing, and to rely on the audio recording of the 26 April hearing in the reconstitution application. The representatives of the respondents consented to reliance on the recording.

1. The applicant raised some preliminary matters. First, his concern that the adjourned directions hearing was conducted before the reconstitution application was dealt with. Second, the parties were not notified of the date of the reconstitution hearing until early May. Further, the original notice of hearing sent to the parties for 12 May 2021 and which described the hearing as a directions hearing, was replaced by a later notice advising it was the reconstitution hearing which was listed for that date.

1. It was unfortunate that the reconstitution hearing was not listed before the 26 April 2021 directions hearing. That was a matter outside Deputy President Lulham's control. The applicant did not suggest he was disadvantaged in making his submissions in support of reconstitution as a result of any of these matters. On the contrary, he sought to rely on the conduct of Deputy President Lulham in the 26 April hearing as fortifying the basis for his reconstitution application by reason of bias. None of these preliminary matters have any bearing on the substance of the matters sought to be relied on by the applicant in support of reconstitution.

1. The applicant also raised concerns about Deputy President Lulham making the orders of 5 February 2021 in relation to the reconstitution. He submitted, first, there was a conflict, given it was Deputy President Lulham's conduct which was the subject of the application, and second, that section 108 of the VCAT Act, required the President to reconstitute the Tribunal. These concerns are misconceived. There is no conflict in a member making procedural orders in relation to the time for filing the application and supporting materials, once a party to a proceeding foreshadows an intention to apply for reconstitution. They were orthodox procedural orders which were a necessary precondition to a presidential member deciding under section 108(2)(a) of the VCAT Act whether the Tribunal should be reconstituted. The president cannot make an order reconstituting the Tribunal under section 108(2)(b) until a presidential member has decided the Tribunal should be reconstituted.

1. Turning then to the matters relied on for reconstitution. The applicant's initial concerns, as set out in his email of 29 January 2021, and in his affidavit of 10 March were somewhat cryptic.

1. The applicant confirmed the "previous recent dealings" with Deputy President Lulham to which he had referred in his 29 January 2021 email were confined to, and correctly outlined by Deputy President Lulham in the background to his 5 February orders. Namely, making the orders in chambers and conducting the directions hearings in this matter he had detailed, and hearing and dismissing an application in November 2020, in the unrelated matter in which the applicant was a party.

1. I will deal first with the allegations of "obvious potential bias" as raised by the 29 January 2021 email, and expanded on in the oral submissions to include the hearing of 26 April, before dealing with the allegations in the affidavit of 10 March 2021 of improper, unlawful and prejudicial disclosure of information concerning the previous matter to the parties in the current matter.

1. The applicant submitted Deputy President Lulham made factually incorrect statements in the unrelated matter, and had failed, when he had written to the tribunal to point out the errors, to correct them. This, he submitted raised a question about Deputy President Lulham's capacity or understanding which had carried through to his decisions in the present proceeding.

1. Despite his dissatisfaction with the decision in the unrelated matter, the applicant had not appealed it. He said he had been assured by the opposing party it would not take any further proceedings against him, rendering an appeal unnecessary. However, he had complained to the Tribunal, the Supreme Court and the Judicial Commission of Victoria about the factual errors and the failure to correct them.

1. On inquiry, the applicant confirmed he had not communicated directly with Deputy President Lulham in relation to his complaints to the Tribunal, the Supreme Court and the Judicial Commission of Victoria, but had assumed that Deputy President Lulham would have been informed of them.

1. It is unclear to me whether Deputy President Lulham was aware the applicant had made complaints about his conduct in relation to the previous proceeding. As noted, at the hearing on 1 February, the applicant did not refer to his email of 29 January 2021 or make any reference to the previous matter or his complaints about Deputy President Lulham. His explanation for not doing so was because he did not wish to raise the issue whilst the hearing was underway. As the applicant did not raise the matter, or make an application for recusal at the hearing on 1 February 2021, Deputy President Lulham did not have the opportunity to reveal whether he was aware of the complaint, and if so, whether he considered he could bring an impartial mind to bear on the issues to be determined on the directions hearing of 1 February 2021.

1. The fact a decision maker has made a decision in another matter in which a party before them is involved, is not of itself sufficient to give rise to a reasonable apprehension of bias. There may be cases, where, for example, credit is in issue, where an adverse finding as to credit in one case may give rise to a reasonable apprehension the decision maker would not be able to make an impartial assessment of a party's credit in another, unrelated dispute. This is not such a case. Deputy President Lulham was doing no more than making timetable orders at direction hearings. Credit issues do not arise. I have read the reasons for the previous decision. There were no adverse findings in relation to the applicant's credit, which might lead a fair minded observer to consider Deputy President Lulham may not be able to be impartial when dealing with the applicant in this matter.

1. There is no evidence to support, either directly, or by inference that Deputy President Lulham was aware of any complaint made about his conduct of the previous matter. Decision makers are not always informed a complaint has been made about their conduct. There is nothing in the outcome of the hearing of 1 February 2021, or in the conduct or outcome of it to give rise to a reasonable, fair minded observer, informed of the facts, of a reasonable apprehension of bias by reason of the applicants complaints about Deputy President Lulham.

1. The applicant submitted the orders which had been made in the current proceeding did not make sense, and could only have been made by someone who was not on top of the material in the file, or who had made up their mind before knowing all the facts. In his submission, if Deputy President Lulham was on top of the facts, he would have had to have come to a different conclusion and made a different decision.

1. The applicant did not raise any specific complaints about the orders made by Deputy President Lulham in chambers or in the direction hearing conducted by him before 1 February 2021. The applicant was successful in securing the adjournment of the directions hearing he sought on 1 February, over the objections of the respondents. As the orders were not adverse to the applicant's interests, or contrary to his wishes, there is no substance to the assertion of ignorance, incompetence or bias resulted in an unfair decision adverse to the applicant's interests. There is no basis for suggesting adverse decisions were made. It follows, that there is no substance to any claims of bias resulting in decisions adverse to the applicant in respect of the conduct of hearings in this proceeding, at the time he sent his email of 29 January 2021, or up to the time of the filing of his application for reconstitution on 11 March 2021.

1. Any complaints about Deputy President Lulham's capacity or understanding in this proceeding must be confined to the hearing of 26 April 2021. Having listened to the recording of the hearing of 26 April 2021, and read the emails sent by the applicant to the Tribunal between 26 April and the hearing of the reconstitution application, it is clear the applicant is unhappy that Deputy President Lulham did not accede to his submissions, and make the orders he sought. It is also clear, having listened to the recording, Deputy President Lulham was in command of the materials in the file. He recited the chronology of the various adjournments and amendments sought by the applicant. In considering the applicant's application to include reliance on a new matter, related to the fuel pump recall, showed a deep understanding of the claim, as originally pleaded, and as amended over time.

1. The applicant submitted that, a decision maker who was aware of all of the facts, and had not pre-judged the matter, could not have made the decisions Deputy President Lulham did. The only explanation for the errors and decisions contrary to the facts was approaching the matter with a mind already made up, or of not being on top of the material.

1. The effect of what the applicant was saying was that Deputy President Lulham should have acceded to his submissions. He asserted that a decision against him could only be explained by pre-judging, by Deputy President Lulham not approaching the matter with an open mind, or lacking the capacity or experience to take in all the facts. Having reached that conclusion, he said the only explanation he could come up with to account for the decisions was bias.

1. That that was what he intended to convey is fortified, in my opinion by the applicant's statement in the directions hearing of 26 April 2021:

"I've got no assurance that what I'm going to request is going to be agreed to ... I don't have the confidence in you presiding in these proceedings..."

1. The applicant's complaints about Deputy President Lulham not being on top of the file or the facts, or having made up his mind before hearing submissions, in reality amount to no more than dissatisfaction with an outcome which was not the one he wanted.[1]

32 That does not constitute bias, or apprehended bias.

1. The applicant also relied on what he described as Deputy President Lulham's attitude, as demonstrating bias. He described the manner in which Deputy President Lulham spoke to him as derogatory or making fun of him. He directed me to five specific passages on the recording of the hearing of 26 April 2021 (at the beginning, and 4 passages between the 18 and 26 minute marks). As already noted, I have listened to the recording in full. In my view, there is no substance to that assertion. Deputy President Lulham was at times firm, when asking the applicant to give a direct answer to his questions, or not to interrupt him. But he was, in my view, patient and polite, even when the applicant raised his voice, interrupted him, and argued with his directions. He was given full opportunity to put his submissions, and to put his position in relation to the directions Deputy President Lulham eventually indicated he was considering making.

1. I am not satisfied the applicant has made good his assertions of bias, or reasonable apprehension of bias. He has not demonstrated anything other than an unhappiness with a decision adverse to him. That is not indicative of, let alone proof of bias. As such, no basis for reconstitution is made out.

1. Before finally dismissing the application for reconstitution, it is necessary to address two final matters. First, as I indicated at the hearing, my consideration of the directions hearing of 26 April 2021, and the orders made on that day by Deputy President Lulham was limited to a consideration of the conduct of the hearing by Deputy President Lulham as relevant to the reconstitution application. The orders of 26 April stand.

1. Second, the applicant raised concerns that information about the previous matter containing what he contended were the uncorrected factual errors was publicly available on Austlii, and that his correspondence pointing out the factual errors and requesting correction was not also published. He was also unhappy that by identifying the other matter, Deputy President Lulham had given irrelevant and personal information to the other parties in this proceeding.

1. The applicant's complaints about the conduct of Deputy President Lulham in relation to identification of the other proceeding provide no support for his allegations of bias, and are misconceived.

1. First, what was published on Austlii were the reasons for decision. There is nothing improper in that. Reasons for decision are routinely published on Austlii, and other decisions databases. Section 147 of the VCAT Act makes specific reference to the publication of decisions. Unless a specific order has been made suppressing or restricting publication of reasons, they are public documents, available to the public at large. It is a fundamental principle of open justice that reasons are published and available. This maintains the integrity and impartiality of courts and tribunals and strengthens public confidence in the system of justice.[2]

1. The parties to this proceeding could have, and for all I know, may already have conducted their own searches of Austlii or other databases to inform themselves of any other proceedings involving the applicant, whether before VCAT or any other court or tribunal. Deputy President Lulham was not providing them with any information they could not have otherwise found from other public sources.

1. In this case, no order suppressing or restricting publication was made. Publication of reasons, whether on Austlii or any other database does not constitute a breach of section 146 of the VCAT Act. That is concerned with third party access to the tribunal file, not publication of reasons for decision. Correspondence from a party unhappy with a decision does not form part of the decision and is not publishable as part of it.

1. Second, having regard to the ambiguous reference in the applicant's email of 29 January 2021 to "previous dealings with" Deputy President Lulham, it was necessary, and appropriate for him to detail what those previous dealings were.

1. Public confidence in impartial decision making requires decision makers to detail any connection with a party to a proceeding before them. Unanswered, the reference to "previous dealings" could convey, to a reasonable, fair minded observer, unaware that the "previous dealings" by Deputy President Lulham with the applicant were limited to conducting proceedings before the Tribunal in which the applicant was a party, that they had a personal or business association. Whilst the applicant was expressing concern Deputy President Lulham might be unfavourably disposed towards him, by reason of "previous dealings" his comment might equally suggest that Deputy President Lulham might be favourably disposed to the applicant, or use knowledge obtained through personal association with the applicant in his favour. It was necessary, for maintaining public confidence and the confidence of the respondents in this matter in impartial justice, that Deputy President Lulham disclose the nature and extent of the previous dealings.

43 The application for reconstitution is dismissed.

[1] Chopra v Department of Education and Training [2017] VCAT 504 at [36].

[2] Section 1 Open Courts Act 2013 (Vic).