1. Honda Australia Pty Ltd applied for orders, under section 78(2)(a) of the Victorian Civil and Administrative Tribunal Act 1998 ("VCAT Act"), that the proceeding against it be dismissed or struck out_._ Honda made the application in an Application for Directions Hearing or Orders filed 8 July 2022, and orally at a Directions Hearing on 27 October 2022. On 23 March 2023 it filed an Application for Directions Hearing or Orders in which it sought directions for the section 78 application to be heard. That Directions Hearing was held by Member Fry on 17 May 2023. A simple timetable was set, and the section 78 application was listed for hearing on 6 June 2023. Mr Caspersz did not comply with the timetable, but I have taken his affidavits affirmed out of time into account.
2. Having considered:

(a) the relevant events in the proceeding, > > (b) the documents filed and served by the parties for use in the hearing of the section 78 application, and > > (c) the submissions made by the parties in that hearing

I have concluded that Mr Caspersz has conducted this proceeding in a way that has unnecessarily disadvantaged Honda and the other respondents and that he has done so deliberately. I find that Mr Caspersz has demonstrated that he has no insight into the impact on the respondents of his conduct in the proceeding; that he takes no responsibility for his actions but seeks to deflect responsibility to Honda; that he has no real understanding of the litigation process which he has instigated by issuing this proceeding and that he makes pointless interlocutory applications because he 'can' do so, rather than because he has a genuine need for an interlocutory order; that he expresses himself in formulaic jargon in a manner which obscures rather than conveys meaning, which causes the respondents to unnecessarily incur expense and inconvenience; that he has proven to be unwilling to take any guidance from the Tribunal on how to conduct himself appropriately and has actively refused, rather than merely failed, to take appropriate steps in the proceeding; and that he has demonstrated that his vexatious, querulent and non-compliant behaviour will only continue if this proceeding against Honda were allowed to continue.

1. In view of the costs which Mr Caspersz has caused Honda to incur, by his actions, and the likelihood that he would continue to inflict unnecessary costs on Honda if the proceeding were allowed to continue against it, I have also concluded that it would not even be in Mr Caspersz's interests for the proceeding to continue as between him and Honda.
2. The two Garry and Warren Smith entities did not make an application for summary dismissal under section 78. One of its officers, Mr Diarmuid Gordon, was present in the hearing.
3. I see that section 78(1) uses the present tense ('if a party ... is conducting ...') and I am satisfied that Mr Caspersz's behaviour in the days leading up to the section 78 hearing and in that hearing prove that he is conducting the proceeding in a way that unnecessarily disadvantages the respondents.
4. I also see that section 78(2)(a) empowers the Tribunal to dismiss or strike out a proceeding when section 78 applies. Clearly, striking out a proceeding is less drastic than dismissing it, because when a proceeding is struck out there remains the possibility that it could be reinstated. Having weighed the circumstances carefully, I am satisfied that it is appropriate to dismiss Mr Caspersz's proceeding against Honda, and not merely to strike it out.
5. In the knowledge that dismissing a proceeding without the Tribunal conducting a final hearing is a significant and unusual step, in that it deprives an applicant of their "day in court", I have concluded that the only way to do justice between the parties is to dismiss the proceeding.

1. Counsel for Honda disclosed in the hearing that Mr Caspersz has commenced seven appeals, to the Supreme Court and to the Court of Appeal respectively, arising from this proceeding.[1] This suggests that he might appeal against this Order, and for that reason I feel it appropriate to make some brief comments about VCAT procedure which differs markedly from Court procedure in civil claims. In a nutshell:

(a) VCAT does not have procedural rules of the kind that apply in the Supreme Court or the County Court.[2]

(b) Section 80 of the VCAT Act empowers the Tribunal to make directions. It does not require the Tribunal to hold directions hearings for that purpose. Section 98(1)(d) obliges the Tribunal to conduct each proceeding with as little formality and technicality, and to determine each proceeding with as much speed, as the requirements of the VCAT Act and the enabling enactment[3] and a proper consideration of the matters before it permit. Section 98(3) empowers the Tribunal to regulate its own procedure.

(c) Section 98(1)(a) provides that the Tribunal is bound by the rules of natural justice. As a result, the Tribunal frequently conducts directions hearings for the purpose of considering the directions to be made under section 80. Similarly, if the Tribunal makes directions without conducting a directions hearing, it commonly reserves to the parties the right to apply to vary those directions.

(d) One of my roles as Head of the Civil Claims List is to conduct directions hearings. Two other Senior Members of the Tribunal, who are the Deputy Heads of the List, also conduct directions hearings. The Listings Registrar allocates directions hearing days. I do not allocate Members to particular types of hearing. Sometimes a Member will order that a proceeding or an anticipated interlocutory application be listed before them on a future date "if available", and in that event the Listings Registrar determines whether that Member is available.

1. This proceeding was commenced before Teen Entertainment Enterprise Network Pty Ltd v A&H Natoli Pty Ltd [2020] VSC 388 was decided. Teen Entertainment was an appeal from a decision of VCAT in which it had held that Teen Entertainment had acted unconscionably. The Supreme Court found that Natoli had not made a claim of unconscionable conduct in their Points of Claim, in their oral opening submissions, or in their written closing submissions. The Court held that Teen Entertainment had not been put on notice that the claim against it might be decided on the basis of unconscionable conduct, and so had not had an opportunity to present evidence or make submissions in relation to that ground. The Court held that in those circumstances, VCAT had not afforded Teen Entertainment natural justice and so made an error of law which caused the appeal to be allowed.[4] Whilst the Tribunal still imposes procedures on parties flexibly, in order not to require them to take procedural steps which are disproportionate to the particular dispute, the decision in Teen Entertainment has caused the Tribunal to give greater consideration to the importance of pleadings.[5]

(f) Costs do not follow the event in VCAT litigation: section 109(1) of the VCAT Act.

(g) VCAT deals with many self-represented parties. It appreciates that self-represented parties would struggle to cope with the precision required of parties in Supreme Court litigation under the Court's rules of procedure. Section 32AA of the VCAT Act provides that the principal registrar "is to give assistance as the principal registrar considers appropriate" to actual and potential participants in a proceeding, though not to provide legal advice. "Participants" is a broader concept than "parties". The dividing line between procedural assistance and legal advice can be hard to find.

(h) VCAT does not sit back and watch self-represented parties file inappropriate interlocutory applications, on the basis that when the application is heard the presiding Member can simply dismiss the application and award costs against the party who brought the application. To do so would cause inordinate delay in proceedings, and be a derogation of the Tribunal's obligations under section 98. Instead, VCAT can decline to list a misconceived interlocutory application for hearing, or intervene to stop a party wasting time and resources on futile activities. The principal registrar will sometimes write to all parties in relation to a misconceived application, and without providing legal advice seek to head off irrelevant and pointless interlocutory controversies so that the case can be determined efficiently. Courts do not intervene in the same way. The practice in Court litigation of awarding costs against the unsuccessful party in an interlocutory application, encourages parties to only bring applications which are at least arguable. Additionally, parties in Court litigation are much more likely to have legal representation and thus receive legal advice on the merits, before commencing an interlocutory application.

(i) VCAT publishes a number of Practice Notes, which are expressed in plain English, in which it explains its procedures and the reasons for them . Examples include PNVCAT1 which is headed "Common Procedures" and PNVCAT3 which is headed "Fair Hearing Obligation". Paragraph 22 of the latter obliges parties and their representatives to do the following: treat the Tribunal and the other parties/representatives with courtesy and respect at all times; act honestly in relation to the proceeding and not knowingly give false or misleading information to the Tribunal; abide by all rulings and directions of the Tribunal; act promptly, comply with all Tribunal directions for the timely resolution of the dispute and minimise delay; cooperate with other parties and the Tribunal to facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute; and use reasonable endeavours to ensure that the costs incurred in connection with the proceeding are reasonable and proportionate to the complexity and importance of the issues and the amount in dispute.

(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.

(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;

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

1. Mr Caspersz issued this proceeding on 23 August 2019. He is self-represented, but has a degree of experience in litigating in the Tribunal.[6] Central to Honda's section 78 application is Mr Caspersz's refusal to file and serve Points of Claim in a style which could fairly put the respondents on notice of the claim sought to be made. More broadly Honda also relies upon a pattern of misbehaviour by Mr Caspersz in the proceeding which is set out in the affidavit in support of the section 78 affidavit affirmed by Honda's legal practitioner Mr Joel Bierenkrant on 2 May 2023, to which a bundle of documents marked JDB1 is exhibited.
2. In considering whether Mr Caspersz 'is conducting' the proceeding in a way that unnecessarily disadvantages the other parties, it is necessary to look at his conduct throughout the proceeding, as well as the most recent events.
3. I will set out the history of the matter below. However, I commence with the observation that Mr Caspersz began the section 78 hearing by interrupting Counsel for Honda during her opening submission, to claim that I should recuse myself. Mr Caspersz had previously made applications for reconstitution of the Tribunal under section 108 of the VCAT Act, for the purpose of removing me from the proceeding, which had failed.

1. Mr Caspersz' application for recusal was made on three grounds:

(a) That I had a "conflict of interests" in that I know one of the officers of Garry & Warren Smith, Dale Smith, having attended Melbourne University Law School, when he did, in 1982. Mr Caspersz asserted that my "relationship" with Mr Smith "has continued up until this very day", and that I had "remained in contact with Mr Smith on a personal level" as admitted by Mr Smith in a document which Mr Caspersz had filed. > > (b) That I was "involved in another VCAT proceeding, in particular with (Mr Caspersz's) wife, and that (my) behaviour in that proceeding is still left to be determined." > > (c) That during 2022 the President of the Tribunal wrote to Mr Caspersz in this proceeding, at a time when no hearings were being conducted in the proceeding, stating that Mr Caspersz could not pre-emptively seek reconstitution of the Tribunal under section 108 of the VCAT Act to remove me entirely from the proceeding, because in the absence of such hearings, the Tribunal had not been constituted. Mr Caspersz asserted that these letters implied that I was "not going to be involved in this VCAT proceeding and this is why Senior Member Vassie got involved from 8 June" 2022.

2. I dismissed the application for recusal, for these reasons:

(a) As to the first ground, when I asked Mr Caspersz to identify the document, or any evidence to support his assertion, he said that Mr Smith does not say that I have a relationship with him. This is an indication of the reckless way in which Mr Caspersz is prepared to make baseless allegations. I was incredulous that a party could found an application for recusal on an assertion that I had attended University with someone 41 years ago. After the hearing had ended, I recalled that I had finished my studies of Melbourne University before 1982. I do not know anyone called Dale Smith. This allegation by Mr Caspersz was entirely unfounded. > > (b) As to the second ground, the proceeding referred to is C6184/2020, in which Mr Caspersz's wife sues a bank. Mr Caspersz is not a party, but had filed the initiating Application, identifying himself as the applicant's "legal representative". At a directions hearing in that proceeding, I refused the applicant leave to be represented by Mr Caspersz, applying the criteria under section 62 of the VCAT Act. I made a standard timetable Order for the filing and service of documents, which reflected the timetable which the applicant sought. The applicant then applied for leave to appeal against the Order I made at that directions hearing. As I understand it, when the section 78 application was heard on 6 June 2023 the appeal process had not been completed. I am aware from having seen an Order in the appeal that the appellant was not granted leave to be represented Mr Caspersz in the appeal. That I conducted one or more directions hearings in C6184/2020 is not grounds for recusal. > > (c) As to the third ground, Mr Caspersz's attempt to draw an implication from the President's correspondence that I would not have any role in this proceeding simply shows that he has not understood that correspondence, or that he refuses to do so. It is remarkable that Mr Caspersz referred to a hearing before Senior Member Vassie in the context of this ground, because paragraph 7 of Senior Member Vassie's Order of 8 June 2022 states that he had expressed the view at that hearing that a pre-emptive application under section 108 of the VCAT Act was incompetent.[7] At another hearing conducted by Senior Member Vassie in this proceeding on 11 August 2022, Mr Caspersz sought to agitate that matter again. In that hearing Mr Caspersz threatened Senior Member Vassie[8] that, "if you dismiss the application wrongly, I will be challenging that at the Supreme Court", and said of the Senior Member that "all you've been doing is asked by Deputy President Lulham to make these orders to protect his mates ... You're his lackey"[9] and "You're as corrupt as all of the others because Deputy President Lulham has stuck you in here. That's why he hasn't done them. That's why the VCAT President hasn't done the reconstitution. You're all corrupt and let me say this. A copy of this recording and you're all more than likely - you'll actually delete the recording, more than likely what's happened to me in the past is that you'll go ahead and delete this recording. So it can't be produced to - you have not demonstrated any legal basis for making your decision. You've got no hope unless, of course, you paid someone at the Supreme Court of Victoria as well ... You're all corrupt."[10] This third ground of the application for recusal was baseless.

3. No steps have been taken under section 137 of the VCAT Act. Mr Caspersz's decision to rely on a hearing before Senior Member Vassie, apparently on the basis that it supported his position, shows a disturbing lack of insight and awareness on Mr Caspersz's part and a seeming inability to discern relevant material in a legal proceeding.
4. I also observe that in the few days leading up to the section 78 hearing Mr Caspersz served on the respondents, and filed with the Tribunal:

(a) an email on 4:00pm on 9 May 2023, demanding a reply from the Tribunal by close of business on 10 May 2023. > > (b) an email at 1:41pm on 22 May 2023, addressed to the Tribunal's principal registrar and copied in to Diarmuid Gordon of the first and third respondents, Honda's legal practitioner Mr Bierenkrant, and Sonny Scott, in which Mr Caspersz expressed dissatisfaction with the directions hearing held on 17 May 2023. Mr Caspersz said that he was aware that he had been ordered to file any affidavit or submission by 2 June 2023, but complained that he had not received the written Order.[11] He also asked when his application for a stay would be listed for hearing. He attached a chain of previous emails. > > (c) by email at 12:23pm on 1 June 2023, a copy of a summons to witness directed to Diarmuid Gordon for the hearing on 6 June 2023. > > (d) by email at 12:24pm on 1 June 2023, a copy of a summons to witness directed to Mr Bierenkrant with the Zoom link for the hearing on 6 June 2023. > > (e) by email at 12:24pm on 1 June 2023, a copy of a summons to witness directed to Sonny Scott with the Zoom link for the hearing on 6 June 2023. > > (f) by email at 12:24pm on 1 June 2023, a copy of a summons to witness directed to William McMinn with the Zoom link for the hearing on 6 June 2023. > > (g) by email at 12:37pm on 1 June 2023, a copy of a summons to witness directed to Diarmuid Gordon with the Zoom link for the hearing on 6 June 2023. > > (h) by email of 8:54am on 29 May 2023, an Application for Directions Hearing or Orders in which he asserted that the grounds of the section 78 application had dissolved because he had filed Revised Points of Claim between 26 and 29 May 2023, so that the Order he sought was that the hearing of the section 78 application be cancelled. In this email Mr Caspersz said he had "made some very nominal changes to the first page only" of the Revised Points of Claim dated 26 May 2023. These documents bore page numbers 1 - 37. > > (i) by email at 4:02pm on 2 June 2023, a draft affidavit. > > (j) by email at 4:30pm on 2 June 2023, another draft affidavit. Mr Caspersz wrote that the "missing transcript" had just been recently received and would need to be reviewed prior to inclusion in the affidavit. He wrote that once reviewed he would "include aspects of it" in the affidavit, and that "the draft affidavit provided earlier and attached again to this email is not expected to materially be amended." > > (k) by email at 7:26pm on Sunday, 4 June 2023, his executed affidavit and exhibits. Mr Caspersz explained the differences between this executed affidavit and the previous draft, saying that the changes "predominantly" relate to the transcript of the 11 August 2022 hearing and that it was not identical to the draft he had sent at 4:29pm on 2 June 2023. > > (l) by email at 8:45am on 5 June 2023, attached to an email at 7:25am on Sunday 4 June 2023, his executed affidavit affirmed 4 June 2023 which bore page numbers 1061 - 1098 and exhibit "AC-1" of 408 pages which bore page numbers 1099 - 1507. > > (m) by email at 3:55pm on 5 June 2023, copies of an Order made 2 June 2023, the Application for Directions Hearing or Orders dated 29 May 2023, and a document entitled Revised Points of Claim. > > (n) by email of 10.01am on 6 June 2023, 4 affidavits of service of summonses to witness. > > (o) by email of 11:32am on 6 June 2023, his affidavit affirmed 6 June 2023 and exhibits. These documents bore page numbers 1508-1561.

5. Including the multiple duplicated documents attached to the above emails, I estimate that Mr Caspersz served on each respondent around 1000 pages in the few days prior to the section 78 hearing, as well as filing them with the Tribunal. In the hearing Mr Caspersz submitted that he had acted reasonably at all times and that Honda was responsible for delays and the like, but I cannot accept that Mr Caspersz could have been unaware of the amount of time and expense which the respondents would incur by their receipt of so many documents, particularly when Mr Caspersz was writing that some of them were amended versions of other documents.[12] A person served with such a volume of material would be unwise to assume that it could treat one version of a document as the 'correct' version and disregard the others. On the contrary, the person would be compelled to carefully check each version as it was received, so that it could be satisfied that there was not some matter of detail in one of them which could prove to be important. I do not accept that Mr Caspersz acted reasonably in serving this plethora of documents so close to the hearing. At best, doing so signifies an avoidable degree of disorganisation, but at worst it appears to be designed to cause the respondents a great degree of inconvenience and expense.
6. Indeed, Mr Caspersz' application for recusal and the service of these vast number of documents, in the context of the respondent's section 78 application, actually supports that very application. They are significant examples of how Mr Caspersz 'is conducting' the proceeding in a way that unnecessarily disadvantages the respondents.

1. Even though the hearing before me on 6 June 2023 was of Honda's application under section 78, Mr Caspersz had filed several witness summonses. He sent them to the respondents in the days immediately before the hearing, amongst a volume of other documents. In the hearing before me it quickly became clear that Mr Caspersz had not served the summonses. In terms of Mr Caspersz seeking to impose obligations on the persons named in the summonses, they were irrelevant. As I mention below, in the context of a considering whether Mr Caspersz is conducting the proceeding in a way that unnecessarily disadvantages other parties, his actions in sending copies of the summonses to the respondents, and without justification seeking to argue that VCAT has relieved him of the requirement to supply conduct money with a summons, are relevant to the issues under section 78.
2. A properly drawn and validly served summons to witness imposes significant obligations on the witness, and exposes the witness to penalties for non-compliance. Sending a summons to a party's legal practitioners, but without validly serving it, puts the party in the unenviable position of having to consider whether it is arguable that the witness named in the summons has obligations or is exposed to penalties. I have no doubt that Mr Caspersz knew how validly to serve a summons. His choice to 'send' summonses seems designed to cause the respondents to suffer disadvantage by putting them to the time trouble and expense of considering them.

1. Mr Caspersz issued the proceeding on 23 August 2019 against the first and second respondent. The case concerns a Honda Civic motor vehicle.
2. Mr Caspersz claimed $35,500.00 and he set out a calculation of that sum. Otherwise he largely used in the initiating Application some generic phrases such as "The goods/services do not fulfil all the purposes which I made known to the salesperson or supplier". He also wrote, "All identified vehicle defects and damage agreed to be rectified on agreed basis (refer all corro between applicant and both [sic] respondents) by GWS, but then refused to attend from 11/1/19. Independent vehicle inspection report ( AAMC ) confirms all identified defects and damage plus more."
3. With the benefit of hindsight, Mr Caspersz's use of the words "refer all corro" in this initiating Application was significant, because throughout this proceeding he has often written in his emails to the respondents and the Tribunal that he refers to "all" previous correspondence, in effect demanding that the reader trawl through all previous correspondence when such a new communication is received. It is a demand which causes the respondents to incur unnecessary time and expense in dealing with such communications.
4. The Tribunal held a directions hearing on 6 November 2019, at which it set a simple timetable for Mr Caspersz to file and serve Points of Claim by 27 November 2019, each respondent to file and serve Points of Defence by 11 December 2019, for mutual disclosure of relevant documents by 6 January 2020, and then a hearing on 5 February 2020. The Order for the Points of Claim required the document to "set out clearly what claim is being made against which person, each amount that is claimed, how each amount is calculated or arrived at, details of loss or damage and the relief and remedy sought". In this directions hearing Mr Caspersz said that the vehicle had only been driven 246 km.[13]
5. Mr Caspersz filed Points of Claim dated 27 November 2019, claiming $38,574.32. Objectively the document was unclear, but it did state that there was a problem with an "aftermarket tint" applied to a vehicle purchased from Garry and Warren Smith ("GWS"), and that the vehicle was damaged during a service. Mr Caspersz used the expressions that there were "a number of issues" with the vehicle and that GWS had "not fixed all of the issues/defects". Again, his use of these broad, undefined plurals - 'a number' and 'all' - without then providing a list leaves the reader unable to discern the subject matter of the complaint. Mr Caspersz wrote that GWS had possession of the vehicle from December 2018 or January 2019, that he refused to collect it until all vehicle issues and defects were fixed, that GWS dumped the vehicle in front of his residence on 23 July 2019 but that Mr Caspersz "had not taken repossession of it" and that whilst he subsequently moved the vehicle to some undercover parking, the vehicle had only travelled 246 km.
6. Given that Honda would be the "manufacturer" of the vehicle within the meaning of that term used in the Australian Consumer Law (Victoria), that GWS would be the "supplier", and that Mr Caspersz referred to an "aftermarket tint", it is clear that the Points of Claim did not set out clearly what claim was being made against which person as required by the Order of 6 November 2019. The juxtaposition of Mr Caspersz's complaint about an "aftermarket tint" with his claim against the manufacturer - not of that aftermarket product but of the vehicle on which the product was applied - is stark and reveals a fundamental illogicality in the proceeding against Honda which has never been addressed.
7. It was around this time that Mr Caspersz began exhibiting what he might have thought was a strict, but which objectively was an ill-informed, view of procedures and that his position in correspondence began to become unduly aggressive and cantankerous. On 13 December 2019 Honda filed and served Points of Defence. It did not file an expert's report, writing on that day that it had not received the report from its expert. On 13 December 2019 Mr Caspersz emailed the Tribunal, asking it to "reject" Honda's Points of Defence and grant a "default judgment". There is no power under the VCAT Act to do either of these things and on 24 December 2019 registry wrote to him confirming the hearing date of 5 February 2020, pointing out that he could file an Application for Directions if he wished to seek interlocutory orders but that the scheduling of a directions hearing could cause the final hearing to be deferred.
8. Mr Caspersz replied on 31 December 2019, alluding to a potential appeal to the Supreme Court and seeking written reasons. On 30 January 2020 a Senior Member made an Order in Chambers recording that requesting written reasons was misconceived.[14] How could an applicant threaten to appeal to the Supreme Court against the Tribunal declining to make an order that it had no power to make? Mr Caspersz replied with increasingly argumentative correspondence. He obtained a transcript of the directions hearing on 6 November 2019 and wrote that he added the cost of doing so to his claim for damages. As part of its usual task of giving procedural guidance to self-represented litigants, on 29 January 2020 the registry wrote to Mr Caspersz about the distinction between a claim for costs, and damages.
9. At the hearing on 5 February 2020 the presiding Member noted that Mr Caspersz sought to rely on an expert's report which did not comply with Practice Note PNVCAT2 and that he announced that he wanted to call seven witnesses. By consent the Member converted the hearing to a compulsory conference.[15] In practice compulsory conferences are broadly similar to mediations. They are held in private and evidence of anything said or done in them is inadmissible[16] in any hearing. The Member conducted the conference and her Order records that the parties did not reach a settlement. The Member set a timetable for a further exchange of information; for the respondents to inspect the vehicle if they wished; for the filing and service of experts reports which complied with Practice Note PNVCAT2; and for the case to be heard on 6 July 2020.
10. I consider the Order of 5 February 2020 to be unremarkable. The Tribunal frequently encounters situations where self-represented parties in particular are unprepared to properly conduct the hearing of their case, and rather than waste the allocated time, the Tribunal converts the hearing to a compulsory conference. It is in the self-represented litigant's interests that this be done. The alternative might be to adjourn the hearing and to award costs against the self-represented litigant. Some cases are settled at such compulsory conferences. In others, further directions are made.
11. Mr Caspersz made a complaint about the Member to the Judicial Commission of Victoria. Such complaints are supposed to be confidential, but the complaint is not confidential in this proceeding because Mr Caspersz referred to it on several occasions during subsequent directions hearings.[17] Eventually he stopped mentioning the complaint and I assume that it was summarily dismissed.
12. On 28 February 2020 Mr Caspersz emailed the Tribunal, stating that he had obtained an updated expert's report which complied with PNVCAT2 and that he requested that the Order of 5 February 2020 be varied by removing the requirement that he make the vehicle available for inspection by the respondents, and removing the right of the respondents to file and serve experts reports. The requests were somewhat similar to his application on 29 May 2023 to cancel the hearing of Honda's section 78 application, and they were plainly misconceived in that to do so would deprive Honda of its right to procedural fairness. In any event, on 17 April 2020 Honda filed and served an expert's report and on 27 April 2020 the Tribunal made an Order which recorded that the parties had complied with the Order of 5 February 2020 and that Mr Caspersz's email of 28 February 2020 had been overtaken by events.
13. At 2:30pm on 18 May 2020, Mr Caspersz sent emails to the Tribunal, and the respondents, which were patently misconceived. He said that he proposed to call 10 witnesses - including at item 7 Honda's lawyer and at item 10 Honda's expert - and he set out lists of the subject matter about which he proposed to question these people. Whilst the Order of 5 February 2020 called on the applicant to file and serve a list of witnesses and give an outline of the subject matter on which each witness would give evidence, objectively no one could understand that Order to require Mr Caspersz to send this email. Examples of the subject matter identified by Mr Caspersz include: of the proposed witness Mery McDougall, an employee of Garry and Warren Smith, evidence of her employment history, "meetings held in her presence including but not limited to [18] the sale and handover of the subject vehicle"; and of the proposed witness Farrel Braver, who was Honda's lawyer, "Australian Consumer Law". After going through this process in relation to the 10 proposed witnesses, Mr Caspersz wrote that he "reserves his right to ask any relevant questions to each of the witnesses on a subject matter that may directly arise as a consequence of a response from each of the witnesses during the VCAT hearing". Aggressively reserving a right in this manner seems to be little more than an attempt to intimidate the respondents.
14. Then at 4:16pm on 18 May 2020, Mr Caspersz sent another email in which he said, "following my recent immediately email below, for clarity, ALL questions in that email are directed to ALL respondents, persons acting on behalf the respondents and any of the witnesses called by the applicant as applicable. Further, with respect to the questions outlined below they will cover BOTH VCAT claims/Other Complaints/Other Legal Disputes, the respondents and/or witnesses as applicable have made against other parties and also VCAT claims/other complaints are the legal disputes the respondents and/or witnesses, as applicable have had against them." This is either meaningless verbiage, or evidence that Mr Caspersz was bringing, or intended to bring, further claims or proceedings against the respondents or witnesses. The statement, if acted on unchecked, would turn his VCAT proceeding against Honda - which apparently concerns an "aftermarket tint" applied to a motor vehicle - into something approaching a Royal Commission with the broadest terms of reference. Sending the email to the respondents was oppressive and vexatious.
15. At 3:25pm Mr Gordon of Garry and Warren Smith emailed the Tribunal under the Order of 5 February 2020, stating that Garry and Warren Smith proposed to call Mr Caspersz as a witness. That statement was misconceived as, of course, Mr Caspersz is the applicant and would be giving evidence in that capacity. At 3:58pm, only 33 minutes later, Mr Caspersz emailed the Tribunal "strongly rejecting" Mr Gordon's email, and saying that the subjects on which Garry and Warren Smith intended to question him were irrelevant. "This cannot be permitted by VCAT on legal grounds. VCAT wrongly permits this then the applicant will be justly allowed the same legal recourse and questioning to ALL of the witnesses called by the applicant, and any persons acting on behalf of the respondents, in addition to the contents of my earlier email today as follows [followed by 18 sets of 'subject matter' including all VCAT proceedings involving the respondents or their witnesses in the last 20 years, and all goods/service of the respondent and/or witnesses in the last 20 years]". A lawyer reading this email could consider its contents to be ridiculous, but when sent to another self-represented litigant, such as in the case of Garry and Warren Smith, the email had the potential to cause it concern and lead it to incurring legal costs.
16. At 3:53pm on 22 May 2020 Mr Caspersz emailed the Tribunal asserting that certain business documents which he had obtained from the respondents on discovery contained "potential but uncertain irregularities", including a perceived irregularity in an ABN appearing on an invoice of Garry and Warren Smith Group. Mr Caspersz said he required from the Tribunal direction identifying the actual supplier of the vehicle in respect of warranties/aftermarket products, the resulting legalities of the contracts pertaining to the sale of the vehicle and the aftermarket products, and whether there is a legal requirement to report any potential irregularities to the Australian Tax Office or ASIC. Given that Garry and Warren Smith did not deny that it sold the vehicle to Mr Caspersz, or make any assertion that Mr Caspersz did not own the vehicle, this implication that Mr Caspersz might report Garry and Warren Smith Group to 'the authorities' was a crude attempt at bullying a respondent. It was completely inappropriate.
17. By 2 June 2020 Mr Caspersz had written four such emails to the Tribunal raising various issues and complaints. Registry commonly refers such emails to me, as Head of the Civil Claims List, and I made an Order in Chambers on 2 June 2020 dealing with the issues and confirming the hearing date of 6 July 2020.
18. On 11 June 2020 - around three weeks before the listed hearing date - Mr Caspersz filed an application to join two additional respondents, Dale Smith and Garry and Warren Smith Group. His application did not set out the basis of any proposed claim against either of the proposed additional respondents[19]. A directions hearing was listed on 1 July 2020 and by an Order in Chambers made 18 June 2020 Mr Caspersz was ordered to file Proposed Points of Claim in which he articulated his claims against the proposed additional respondents.
19. Mr Caspersz filed a document headed "Additional Points of Claim" dated 25 June 2020. Instead of preparing a new 'pleading', he began this Additional Points of Claim with the statement: "Particulars of claim ( in addition to the applicant's Points of Claim 27 November 2019 and List of Documents 6 January 2020) ", and then in paragraph number 1 he wrote, "This Additional Points of Claim is undertaken in conjunction with the applicant's original VCAT Application dated 23/8/19, the applicant's Points of Claim dated 27/11/19 and the applicant's List of Documents dated 6/1/20".
20. In my view, this is in a similar vein to saying "including but not limited to" or insisting on a recipient reading "all" previous documents. The document did not comply with the Order in Chambers made 18 June 2020, and its style of calling on the reader to refer back to previous documents is unfortunate and likely to put the reader to unnecessary time and effort. The Order required Mr Caspersz to prepare a document to set out the basis of his claim, so that it could be understood. As claimant Mr Caspersz was in the best position to know what claim he was seeking to make.
21. At the directions hearing on 1 July 2020, the Senior Member presiding joined as third respondent Garry and Warren Smith Group, but did not join Dale Smith as fourth respondent, and granted leave to Mr Caspersz to file and serve his Additional Points of Claim. The Senior Member ordered the respondents to file and serve Amended Points of Defence, confirmed the order for discovery of documents so that it now also applied to the new third respondent, cancelled the hearing on 6 July 2020 and listed the proceeding for hearing on a date to be fixed. In due course the hearing date of 9 September 2020 was set by the Listings Registrar.
22. At 2:30pm on 29 July 2020 Mr Caspersz emailed the respondents, and the Tribunal, a list of an additional 55 documents and one video by way of discovery. After that list, he wrote, "With respect to the Applicant's request and legal right to rely on the above documents/material, the Applicant as a matter of course also relies on all of the documents/material previously exchanged with the parties and also all the relevant legislation pertinent to this case, that being, including, but not necessarily limited to, Australian Consumer Law and Fair Trading Act 2012 (including the various Schedules), Business Names Registration Act 2011, Motor Car Traders Act 1986, Motor Car Traders Regulations 2018 and ASIC Regulations including regulatory guide 235 which are easily accessible via an internet search ... The applicant will shortly report the alleged various breaches in the law by the applicable respondents to the relevant government authorities" (emphasis added).
23. So, having obtained the indulgence of the Senior Member at the directions hearing on 1 July 2020 to use his existing "Additional Points of Claim" rather than being put to the task of properly preparing one comprehensive pleading, just four weeks later, in the guise of a paragraph in a list of supplementary discovery, Mr Caspersz purported to rely on an additional 5-6 sets of Acts or Regulations plus others which he would not name. This conduct is designed to deprive the respondents of their legitimate right to a document which articulates the claim which they must meet in a legal proceeding. It was outrageous. In simple terms, it was cheating.
24. Mr Caspersz made a complaint about the Senior Member to the Judicial Commission of Victoria. I know this because Mr Caspersz referred to it during a subsequent directions hearings. As he stopped mentioning the complaint, I assume that it was summarily dismissed. Threatening to bring complaints to the Judicial Commission of Victoria is a crude attempt at bullying.
25. On 3 August 2020 Mr Caspersz applied by email to cancel the hearing pending an investigation of his complaints against the Tribunal. On 5 August 2020 I made an Order cancelling the hearing on 9 September 2020, not on the basis of Mr Caspersz's complaints but instead because of the then newly announced Stage 4 Covid 19 restrictions which hampered the ability of the Tribunal to conduct hearings. I suspended the time limits set out in the Order of 1 July 2020, and directed the registrar to list a directions hearing in November 2020 so that the Tribunal could gauge the parties' ability to properly participate in a final hearing. The directions hearing was listed on 9 November 2020.
26. On 10 September 2020 Mr Caspersz emailed the respondents, and the Tribunal, in relation to a safety recall notice that he had received from Honda on 25 August 2020. Bearing in mind that at the hearing on 6 June 2023 Mr Caspersz said that the vehicle has still only travelled 358 km[20] his comments in relation to the recall notice reflect a disproportionate response. In the recall notice Honda said that Mr Caspersz' 2018 Honda Civic "may contain a faulty fuel pump". It said the danger was that, "The fuel pump may become inoperative which could prevent the engine from starting or stall the engine while driving, increasing the risk of a crash which may result in serious injury" [emphasis added: plainly, Honda was drawing the issue to Mr Caspersz' attention but was not saying that these serious dangers would eventuate]. Under the heading, "What do I need to do?", the document said, "Honda Australia currently has limited replacement parts so please contact the service department of your preferred Honda dealer between 10 AM and 4 PM weekdays for more information and to make a booking to have the fuel pump replaced free of charge."
27. Mr Caspersz also enclosed an email from Honda Customer Care dated 8 September 2020, in which Honda said the recall was an "urgent voluntary product safety recall"; and that the ACCC and the Department of Infrastructure Transport Cities and Regional Development had been notified. In this email Honda repeated the request for Mr Caspersz to contact his preferred Honda dealer for more information "and to make a booking to have the fuel pump replaced (subject to part availability) free of charge". Under the heading "Frequently Asked Questions" Honda stated that Mr Caspersz could continue to drive the car.
28. Mr Caspersz has disclosed to the Tribunal that he has never approached either Honda or Garry and Warren Smith to exercise rights under this recall.
29. In his email of 10 September 2020 Mr Caspersz enclosed a copy of a letter he had written to Honda on 31 August 2020. In that letter Mr Caspersz asserted that the recall notice "creates an 'urgency' for repair because of a faulty fuel pump, but at the same time also states that replacement parts are 'limited'. Together this reflects the act of 'coercion' in trying to convince the consumer to act quickly in having the part(s) replaced because what happens if the replacement parts is/are not available?". He asserted that the whole vehicle would now be categorised as being unsafe, and therefore deemed to exhibit a major failure. "There are a number of adverse consequences that eventuate with respect to coverage of insurance." Mr Caspersz demanded a "full refund of the costs and damages associated with the purchase of the vehicle" and said that if Honda did not accede to this demand he would "lodge this further event" in this VCAT proceeding. He concluded the email by saying that he had reported the matter to the Australian Competition and Consumer Commission ("ACCC").
30. In his email of 10 September 2020 Mr Caspersz wrote "based on those discussions (with ACCC) it was determined that a Major Failure would be determined under Australian Consumer Law", which seems to be calculated to imply that the ACCC made such a determination. He wrote that the responses provided by Honda amounted to a refusal to provide him, as a consumer, "with all the required legal options available of either a repair, a refund or a replacement under ACL with respect to these product defects" and that each defect in the vehicle would constitute a major failure. As the email was directed to the respondents and the Tribunal, Mr Caspersz concluded with the statement, "please add and place ALL of this correspondence (including attachments) for this VCAT case on file for the applicable and appropriate VCAT Member's review and action accordingly."
31. I conducted the directions hearing on 9 November 2020. That was my first hearing in this proceeding. My Order records that Mr Caspersz submitted that the proceeding should not be listed for hearing until two proceedings before the Judicial Commission of Victoria had been completed, which he estimated would be by mid-January 2021, and that the respondents submitted that the proceeding should be listed for hearing. I directed the principal registrar to list a further directions hearing on 1 February 2021, at which time the parties' ability to properly participate in a final hearing would be observed and further directions would be made.
32. I conducted the directions hearing on 1 February 2021, I noted in my Order that Mr Caspersz sought another adjournment on the basis that he was still awaiting the outcome of proceedings before the Judicial Commission of Victoria, and I adjourned the directions hearing to 26 April 2021. Only after the directions hearing did I become aware that on 29 January 2021 Mr Caspersz had emailed the respondents and the Tribunal, saying that the Law List showed that I was listed to conduct the directions hearing on 1 February 2021, and that he considered this to be inappropriate in view of "obvious potential bias" saying that I "would be clearly aware of this and our recent past dealings."
33. I made an Order in Chambers on 5 February 2021, which called on Mr Caspersz to make an application for reconstitution by 12 March 2021, and said that unless he did so by that date no application for reconstitution could be made based on any event prior to 1 February 2021.
34. Mr Caspersz applied for reconstitution, and that application was heard by Judge Hampel on 12 May 2021. Her Honour dismissed the application.[21] Both respondents appeared at the hearing before Judge Hampel.
35. By the time Judge Hampel heard the reconstitution application, the directions hearing of 26 April 2021 had come around. Mr Caspersz sought leave, orally, to further amend his claim, to support an allegation that he would not have purchased the Honda vehicle had he known that the fuel pump was defective. The respondents opposed the application to amend. I ordered that any application by Mr Caspersz to further amend his claim was to be made in writing by 10 May 2021, and be accompanied by Proposed Further Amended Points of Claim which set out the allegations of relevant facts and events in chronological order and numbered paragraphs. I required Mr Caspersz to mark the draft pleading in a way which distinguished between the proposed amendments and the text in the Additional Points of Claim dated 25 June 2020. I required Mr Caspersz to serve the document on the respondents. I listed the case for hearing on 12 July 2021.
36. On 1 June 2021 Mr Caspersz emailed the Tribunal stating that the proceeding could not proceed in accordance with the Orders made at the directions hearing on 26 April 2021. I made an Order in Chambers in which I cancelled the hearing dated 12 July 2021, and directed the principal registrar to list a directions hearing of two hours' duration. I recorded that Mr Caspersz had not amended under the Order of 26 April 2021, and I gave him leave to apply to amend at that next directions hearing, provided he filed and served proposed Further Amended Points of Claim at least 14 days before that directions hearing. I included some explanatory comments for Mr Caspersz' assistance. I quote paragraph 4 of my Order made 1 June 2021:

(Mr Caspersz) having failed to make an application under paragraph 2 of the Order made 26 April 2021, at the directions hearing to be listed under paragraph 3 ... may apply for leave to further amend (the) Additional Points of Claim dated 25 June 2020 by adding a claim in relation to the fuel pump provided that at least 14 days before the directions hearing he files with the Tribunal and serves on the respondents a document entitled "Proposed Further Amended Points of Claim" which is in the form of a pleading which would satisfy the rules of pleading applicable in the County Court of Victoria. The minimum requirements are that the document:

(a) is understandable in itself without reliance on any other documentation or websites

(b) is set out in numbered paragraphs, without bullet points

(c) sets out in a logical, chronological order (his) allegations of relevant facts and events which are said to give rise to his claims against each of the three respondents made in his Additional Points of Claim dated 25 June 2020 and in relation to the fuel pump but no other subject matter

(d) identifies any bodies of law or statute which are relied upon [eg, contract, sections of the Australian Consumer Law], and

(e) sets out the relief and remedy sought against each respondent, and the manner in which any claim for monetary compensation is calculated.

1. Mr Caspersz filed and served a document which he headed "updated Proposed Further Amended Points of Claim" which did not comply with the Order of 26 April 2021.
2. On 31 May 2021 Honda filed and served a written submission opposing Mr Caspersz's application to amend. Included in this submission were the points that by 31 May 2021 the proceeding had been on foot for 647 days; according to Mr Caspersz, he was aware of the fuel pump recall in August 2020 but did not seek leave to amend his claim to include the fuel pump until 26 April 2021; that Mr Caspersz did not produce any evidence to show that the fuel pump in his vehicle is defective; and that a voluntary product safety recall is a precautionary process and does not mean that a vehicle will necessarily have an issue relating to the recall or that the vehicle is not of acceptable quality entitling the consumer to reject it. Mr Caspersz replied by email of 3:59pm on 1 June 2021, accusing the author of the submission of making false statements, attempting to deceive the Tribunal, and saying that Orders should be made against Honda under section 78 of the VCAT Act.
3. On 25 June 2021 Mr Caspersz emailed the respondents, and the Tribunal, in which he asked seven questions. The registry replied by email of 12:34pm on 28 June 2021. The tone of Mr Caspersz' email resulted in the registry recording that the parties were in dispute and that it was the Tribunal's task to hear and determine that dispute. The Tribunal was not in dispute with any party. Further, when a party filed a document with the Tribunal, either physically or by email, the registry received the document and filed it. By the registry doing so, the Tribunal was not "accepting (a document) without reason" as Mr Caspersz had asserted. This email exchange is indicative of Mr Caspersz' aggressive failure to comprehend the legal system. Mr Caspersz replied aggressively in another email of 2:21pm on 28 June 2021, sending his email to the respondents and the Tribunal. This necessitated the Tribunal replying by email of 11:40am on 29 June 2021.
4. On 27 July 2021 Mr Caspersz emailed the respondents and the Tribunal a new Application for Directions Hearing or Orders and a new document headed " The Applicant's Proposed Further Amended Points of Claim - VCAT reference number C6315/2019 [All text in italic comprises the requests made in this 'Proposed Further Amended Points of Claim' in particular from point 9 onwards]." That document included Dale Smith as a respondent, despite the application to join Dale Smith as a respondent having been refused at the directions hearing on 1 July 2020. Immediately under the heading of the document Mr Caspersz wrote, "Additional respondent in accordance with previous correspondence refer Point 10 below. Alternatively, the applicant rightfully seeks the explicit written reasons why the Tribunal believes Mr Dale Smith cannot be included as a further respondent and also where an apparent previous denial of the proposed fourth respondent, according to the Tribunal, has been provided in writing to all parties in these proceedings."
5. Again, this document did not comply with the Tribunal's requirements in respect of Points of Claim. I made an Order in Chambers in relation to the document, on 6 August 2021. I declared in the Order that Mr Caspersz had not made a valid application for leave to further amend his claim, that accordingly his claim remained as it was when the Order was made on 1 July 2020 - in the document headed "Additional Points of Claim dated 25 June 2020" - and that in the circumstances there was no purpose in the Tribunal holding the directions hearing on 11 August 2021 and that it was cancelled. I foreshadowed making further directions on the papers. I quote paragraphs 16 - 19 of my Order made 6 August 2021:
   1. That "updated Proposed Further Amended Points of Claim" is inconsistent with what (Mr Caspersz) sought to do in his email of 10 May 2021 and with paragraph 4 of the Order made 2 June 2021 in a number of respects, including

(a) it purports to add Dale Smith as fourth respondent, despite (Mr Caspersz's) application to join Dale Smith as a respondent having been refused by Order made 1 July 2020; > > (b) it is not one document, understandable in itself without reliance on any other document: it begins with the words "[In addition to the applicant's Points of Claim 27th November 2019, list and copies of documents 6th January 2020, list and copies of documents 29th July 2020 and incorporates the Additional Points of Claim 25th June 2020 per VCAT Order 2 of 26th April 2021 and subsequently amended by VCAT Order 4 of 2 June 2021]..."; > > (c) it is not set out in separate numbered paragraphs, some paragraphs in fact being lengthy collections of multiple allegations; > > (d) it does not identify the bodies of law which are relied upon: it includes expressions such as

(para 4) "all other relevant aspects of Australian Consumer Law and Fair Trading Act 2012"

(para 11): "The Applicant relies on the following legislation [referred to as Australian Consumer Law] with respect to his claims made in relation to ALL of the subject vehicle defects, including the 'faulty fuel pump' detailed in this 'PFAPOC':

1. Australian Consumer Law and Fair Trading Practices Act 2012 generally;
2. Competition and Consumer Act 2010, in particular Schedule 2 but NOT necessarily limited to parts 2, 3, 4, 7, 9, 11, 18, 21, 22, 22A, 29, 33, 34, 36, 54 to 58 inclusive, 60, 61, 64, 104, 105, 106, 108, 128, 134, 135, 136, 143, 144 and 259 to 273 inclusive of this Schedule [based on latest version 1 July 2021]".

(para 12): "This fault was also outlined on Honda Australia's the Australian Competition and Consumer Commission [ACCC's] and Product Safety Australia websites".

(para 18) "The Applicant relies on numerous documents and correspondence ... The total number of documents and correspondence now comprise 504 pages [PLUS the Applicant's 3 page affidavit of 16th June 2021)" [emphasis added]

1. The document therefore is incapable of putting the respondents on notice of the issues which the applicant sought to advance in the case.
2. This proceeding was issued on 23 August 2019 and, as late as 28 July 2021, (Mr Caspercz) was purporting to seek to amend his Points of Claim whilst flouting the Tribunal's requirements as set out in the Order made 26 April 2021 in the Order made 2 June 2021.
3. The parties' attention is drawn to section 78 of the Victorian Civil and Administrative Tribunal Act 1998.
4. At 3:03pm on 1 October 2021 Mr Caspersz emailed the registry, attaching an email dated 8:00am on 9 August 2021 that was addressed to the respondents, vcatprincipalregistrar@courts.vic.gov.au (which does not appear to be the standard email address used by the registry) and civil@vcat.vic.gov.au, and the Attorney General. At considerable length Mr Caspersz argued that his various amended points of claim were valid.
5. This correspondence was received in a period in which the Tribunal was particularly adversely affected by the impact of Covid 19. On 21 October 2021 the Tribunal sent the parties a Notice of Hearing, stating the hearing date of 18 July 2022. The Notice advised the parties that a timetable Order would be sent to them in due course.
6. On 12 November 2021 I made an Order in Chambers, setting out a timetable and dealing with a number of emails which the Tribunal had received from Mr Caspersz. Mr Caspersz emailed the Tribunal on 3 December 2021, and I made an Order in Chambers dealing with the issues it raised.
7. On 16 May 2022 the Tribunal sent the parties a Notice of a Directions Hearing to be held on 8 June 2022. The Notice identified the issues which were to be considered at that directions hearing:

these matters, contained in Mr Caspersz' Application for Directions Hearing or Orders dated 12 April 2022:

application for a stay of the Orders made 12 November 2021;

application for extension of time is under the Order of 12 November 2021;

application for the stay/extension/cancellation of the hearing listed on 18 July 2022;

adopting the words used in Mr Caspersz' Application, his application for leave to file and serve the "third version of his Proposed Further Amended Points of Claim dated 9 August 2021 (and all previous supporting material including the affidavit dated 16 June 2021)";

Honda's application for leave to be represented by legal practitioners;

Honda's objections to Mr Caspersz's summonses to witness addressed to Diarmud Gordon, Mery McDougall, William McMinn, Stephen Collins, Joe Geisi and Farrel Braver;

Honda's application for directions concerning payment by Mr Caspersz of conduct money and expenses to those witnesses if the summonses were upheld; and

Honda's application for directions concerning payment by Mr Caspersz of conduct money to witnesses who are named in summonses to which Honda did not object.

1. On 3 June 2022 Honda filed and served written submissions in relation to the directions hearing of 8 June 2022. By email dated 6 June 2022, Mr Caspersz objected to the submissions and asserted that the directions hearing could not be held until his reconstitution application had been dealt with. Then on 7 June 2022 he affirmed an affidavit which contained the argument that conduct money was not payable on a summons to witness, when the witness would attend the hearing by telephone or Zoom rather than in person.
2. Senior Member Vassie conducted the directions hearing on 8 June 2022. The Senior Member cancelled the hearing date of 18 July 2022, and adjourned the directions hearing to 25 July 2022. He ordered that any application by Honda, to set aside witness summonses or otherwise, be filed and served by 8 July 2022 with an affidavit in support. He ordered that at least 7 days before the adjourned directions hearing Mr Caspersz was to file and serve a document setting out clearly what Orders he would be asking the Tribunal to make at the directions hearing.[22] At paragraph 7 of the Order the Senior Member said, "Notwithstanding (his) view expressed today that an application under section 108 of the (VCAT Act) is at present incompetent, that application is referred to a Presidential Member [but not Deputy President Lulham] for hearing and determination. The Tribunal notes that the applicant wishes it to be heard by the President of the Tribunal but it is not his right to decide who should hear it."
3. On 21 June 2022 Mr Caspersz emailed the respondents, and the Tribunal, seeking written reasons for paragraph 7 of the Order. This request was misconceived.[23]
4. On 8 July 2022 Honda filed an Application for Directions Hearing or Orders, supported by an affidavit of Sonny Scott sworn 8 July 2022, in which application it sought the following orders:

(b) that it have leave to be represented by a professional advocates for the remainder of the proceeding; that summonses to witness naming Diarmuid Gordon, Dale Smith, Mery McDougall, Keith MacPherson, Stephen Collins, Joe Geisi, Farrel Braver and William McMinn be set aside; "that the applicant pay conduct money and expenses to any or all of the summonsed witnesses should they be required to appear, prior to the hearing"; that the case be listed for hearing; and that Mr Caspersz be refused leave to further amend his claim.

1. Mr Caspersz affirmed an affidavit in opposition on 22 July 2022. Whilst the document was headed "affidavit", it contains a series of arguments and speculations rather than statements of fact. In paragraphs 6 and 7 Mr Caspersz identified 212 pages as evidence upon which he sought to rely in opposition to Honda's application. In paragraph 9 he deposed that Sonny Scott had made false statements which compelled VCAT to take action against him under section 136 of the VCAT Act. At paragraph 12 he said that people who had appeared on behalf of Honda in previous hearings, as employees of Honda, were in fact independent lawyers employed by CIE Legal, and that they had deceitfully misled the Tribunal. He deposed that pages 667 to 686 of his exhibits were a product of his searching those employees on LinkedIn.
2. In the context of Honda seeking leave to be represented by a professional advocate, at paragraph 13 Mr Caspersz listed the 12 interlocutory Orders that had already been made in the proceeding, between November 2019 and November 2021, and then at paragraph 14 asserted that the proceeding was insufficiently complex to warrant a party having such representation. At paragraph 14(c) he claimed that he was not responsible for seeking to amend his claim after 25 June 2020, in that the amendment was required by circumstances beyond his control. At paragraph 14(g) he asserted that his two applications for reconstitution had been, and continued to be, justified. At paragraph 15(d) he referred to my refusal of Mr Caspersz's wife's application to be represented by him in her proceeding C6184/2020.
3. In relation to Honda's application to have certain summonses set aside, at paragraph 16(c) he claimed that because the Tribunal allowed the summonses to be issued, the Tribunal had "duly approved" them. At paragraph 16(e) he asserted that Honda had the opportunity to object to the summonses before they were issued, and that Honda had a conflict of interests by seeking to have summonses directed to witnesses set aside, when Honda had not sought or obtained leave to represent the witnesses. At paragraph 17(d) he asserted that Honda was only insisting that a summons to witness had to be served with conduct money, in order to deter him from calling witnesses.
4. In the context of listing the case for hearing, at paragraph 18(a) Mr Caspersz asserted that the case could not be listed for hearing until all of his interlocutory applications had been determined, and at paragraphs 18(l) & (e) he said that they included an application for reconstitution which would remove me from the proceeding. At paragraph 20(e) Mr Caspersz said that I had been unofficially removed from the proceeding, and that this explained Honda's opposition to the summonses to witness, as it "obviously felt that (it) could no longer be protected by the biased decisions of Deputy President Lulham". At paragraph 20(h) Mr Caspersz blamed the Tribunal for delays in the proceeding being heard.
5. Some time ago registry adopted the practice of sending a standard form email to a party who had emailed more than 100 pages of documents or 10 attachments, advising that they would not be printed and that the party should file hard copies of them. Registry sent Mr Caspersz such an email at 10:11am on 25 July 2022. He replied at 11:35am saying, amongst things, "Further, respectively, the second respondent's documents also consisted more than 100 pages, and I respectfully request to know whether they too were also requested to unreasonably provide such documents by the post too and which VCAT Member has actually requested you to draft this email to me this morning?"
6. Mr Caspersz filed and served his document under Senior Member Vassie's Order of 8 June 2022, on 4 August 2022. At paragraph 1 he sought reconstitution of the Tribunal under section 108 of the VCAT Act. At paragraph 3 he asserted that the Tribunal had "accepted" his Proposed Further Amended Points of Claim dated 9 August 2021 and that it followed that Dale Smith was to be joined as fourth respondent. At paragraph 4, he sought determination of the proceeding in his favour under section 78 of the VCAT Act. In other paragraphs he said he was seeking orders that applications by Honda be dismissed, but these are not so much applications as statements that he was opposing Honda's applications.
7. Senior Member Vassie presided at the directions hearing on 11 August 2022. As is commonplace in Orders in the Civil Claims List, his Order contains a section headed Background and then a section containing the operative parts of the Order. In the Background Senior Member Vassie stated that during the directions hearing Mr Caspersz sought the referral of his application for reconstitution to a Presidential Member, and that the Senior Member pointed out that he had already ordered that this take place, in his Order of 8 June 2022.
8. Significantly in the context of Honda's application under section 78 which I am dealing with here, at paragraph 2 of his Order the Senior Member required Mr Caspersz to file and serve Revised Points of Claim by 22 September 2022. This paragraph used the word "must", and accordingly required Mr Caspersz to file and serve the document, as distinct from giving him leave to do so or merely setting a time limit. The paragraph said that the Revised Points of Claim must be in accordance with paragraph 16(b) and (c) the Order dated 6 August 2021, and be one document understandable in itself without reliance on any other document and be in numbered paragraphs. The paragraph included this sentence: "To assist the applicant to understand how the Order may be complied with, the Tribunal offers the following as examples only and does not suggest that they necessarily reflect the case that the applicant wishes to make:" followed by a simple example of Points of Claim in paragraphs numbered 1-9.
9. It is apparent from the transcript of the directions hearing on 11 August 2022 that the time available to conduct the directions hearing expired. By paragraph 7 of his Order, the Senior Member ordered that a further directions hearing be listed before him as soon as practicable after 22 September 2022, and ordered that all applications contained in Mr Caspersz' email of 4 August 2022 be adjourned to that directions hearing. The directions hearing was listed on 27 September 2022. As that date fell on a religious holiday, Honda sought an adjournment to another day. The Garry and Warren Smith entities consented. On 6 September 2022 Mr Caspersz emailed the respondents and the Tribunal, saying that he does "not provide any consent whatsoever" to the application for an adjournment, that he intended to appeal against the Order of 11 August 2022 and that he sought a stay of that Order. Another Senior Member made an Order in Chambers, which adjourned that directions hearing to a date to be fixed.
10. On 29 August 2022 Vice President Judge Marks made an Order enabling Mr Caspersz' application for reconstitution to be determined on the papers under section 100 of the VCAT Act. Her Honour ordered Mr Caspersz to file and serve any further submissions by 8 September 2022, and under section 100 gave the parties the opportunity to object to the issue being determined on the papers.
11. The three respondents wrote to the Tribunal saying that they would not make any further submissions. In his affidavit made 8 September 2022 Mr Caspersz sought to exclude myself, Senior Member Vassie, Vice President Judge Marks, and 'any other Members, as applicable who have apprehended bias (and/or otherwise bias) towards the Applicant in this current VCAT proceeding or this application for reconstitution' from having any role in the proceeding.
12. On 21 September 2022 the President of the Tribunal, Justice Quigley, dismissed the application for reconstitution.[24] Her Honour said that Mr Caspersz' "attempt to dictate who should or should not conduct any future hearing of his proceeding (was an) attempt at 'member shopping' (and was) entirely inappropriate and if acceded to would tend to undermine the independence of the Tribunal and the Tribunal's processes"[25]; that his allegations were "spurious and without merit"[26] and that Her Honour took the view that "what this demonstrates is a course of conduct by (Mr Caspersz) to attempt to avoid his proceeding being heard by anyone who makes an adverse finding against him no matter how meritorious that adverse finding may be".[27]
13. On 28 September 2022 Mr Caspersz emailed the Tribunal, seeking a stay of parts of the Order made by Senior Member Vassie on 11 August 2022. A Senior Member made an Order in Chambers that this application by Mr Caspersz for a stay would be heard by Senior Member Vassie in the same directions hearing which had been adjourned from 27 September 2022. That directions hearing was held on 27 October 2022, and Senior Member Vassie's Order was published with written reasons on 15 December 2022.[28] At paragraphs 3-5 of the Reasons Senior Member Vassie recorded that Mr Caspersz sought a stay of that part of the Order made 11 August 2022 which required him to file and serve Revised Points of Claim, and that by 27 October 2022 he had not filed and served such a document. At paragraph 13 Senior Member Vassie recorded that Honda orally made an application for an order dismissing or striking out the proceeding, for failure to comply with the Order of 11 August 2022. He said that because this application had not been made on notice to Mr Caspersz, he would not deal with it that day. He adjourned that application to 10 April 2023 - to be heard by himself if available - and he set a timetable for the parties to file and serve affidavits or submissions. He also dismissed the application for a stay.
14. On 12 January 2023 Mr Caspersz emailed the Tribunal stating that he intended to apply to the Supreme Court for a stay of the Order of 11 August 2022. By then the registry had sent the parties, in error, a Notice of a section 75 hearing, to be held on 6 June 2023. Accompanying that Notice was an Order dated 21 December 2022 which simply called on the parties to file and serve copies of any documents upon which they intended to rely at that hearing, at least two weeks before the hearing. Mr Caspersz emailed the Tribunal on 22 December 2022 noting this error, and on 17 January 2023 Senior Member Vassie made an Order in Chambers directing the registrar to send the parties a Notice of Hearing in respect of Honda's section 78 application instead. On 24 January 2023 Mr Caspersz used his receipt of this corrected Notice to try to re-agitate his application for reconstitution: within a lengthy email sent to the respondents and the Tribunal at 2:37pm he wrote, "Can VCAT (as determined by the VCAT President under the VCAT Act 1998) please advise who the presiding member(s) is/are in the current VCAT proceeding. As all parties to the VCAT proceeding are fully aware, the proceeding is yet to be reconstituted (as requested by the applicant) and therefore the presiding member(s) of the proceeding must be as originally constituted by the VCAT President ..."
15. At 2:05pm on 17 February 2023 Mr Caspersz emailed the Tribunal, enclosing a Notice of Appeal dated 14 February 2023, in which he sought leave of the Supreme Court to appeal against the Order made by Senior Member Vassie on 15 December 2022, and a copy of a Summons in that proceeding returnable before a Judicial Registrar on 22 March 2023. In paragraph 2 of that Summons Mr Caspersz wrote that when he serves a sealed copy of the Notice of Appeal on the Tribunal he would "request" VCAT to stay its Orders of 15 December 2022, 21 December 2022 and 17 January 2023 instead of making this request to the Supreme Court. I made an Order in Chambers on 22 February 2022 in which I stated that Mr Caspersz was not making a "request" to the Tribunal, but was making an application, and I directed the principal registrar to list his application for a stay for hearing of those three Orders on a date to be fixed. By the date of the section 78 hearing, the stay application had not been fixed for hearing.
16. At 9:18pm on 24 March 2023 Mr Caspersz emailed the respondents, and the Tribunal, an affidavit under Senior Member Vassie's Order of 15 December 2022 within a bundle of documents. Altogether the bundle was numbered from page 899 to 1059. In his email Mr Caspersz said that this executed affidavit did not "differ in material content" to an unsigned affidavit which he had served on the respondents at 3:40pm. As with other documents which Mr Caspersz has served, then amended, then served again, it seems to me that this put the respondents to the trouble of perusing around 320 pages of material.
17. At 4:39pm on 24 March 2023 Honda's legal practitioners, CIE Legal, emailed an Application for Directions Hearing or Orders, by which Honda sought directions so that its section 78 application could be heard, and the affidavit of Joel Bierenkrant affirmed 23 March 2023 and the bundled exhibit "JDB-1". I have referred to these documents above. It was this application which was the subject of the directions hearing before Member Fry on 17 May 2022, in which he made a timetable Order and confirmed the hearing of Honda's section 78 application on 6 June 2023.

1. Mr Bierenkrant affirmed an affidavit on 2 May 2023 in support of the section 78 application, accompanied by a bundled exhibit. Altogether the affidavit and exhibit comprised 343 pages.
2. On 29 May 2023 Mr Caspersz filed an Application for Directions Hearing or Orders and a document dated 26 May 2023 headed "Revised Points of Claim", the first page which he replaced on 29 May 2023. The only Order sought in the Application was an order that the hearing of Honda's section 78 application be cancelled "given the applicant has now complied, effective 26 May 2023, with all requirements of paragraph 2 of VCAT's Order of 11 August 2022." On page 3 of the Application Mr Caspersz admitted that he had not told the other parties that he was making this application.
3. I made an Order in Chambers on 2 June 2023, directing the principal registrar not to list the Application for hearing because it was misconceived.
4. Mr Caspersz affirmed an affidavit on 4 June 2023 in opposition to Honda's section 78 application, accompanied by a bundled exhibit. This set of documents was numbered page 1061 to 1507. This affidavit was served later than allowed by Member Fry's Order[29] but I did not exclude it from consideration in this section 78 application for that reason. As I said above, the bigger practical problem is the unnecessary expense which Mr Caspersz undoubtedly inflicted on the respondents by serving multiple copies of documents which he indicated were at least somewhat unidentical, thus causing the recipient to have to examine all of them.
5. Section 98(1)(b) of the VCAT Act provides that the Tribunal is not bound by the rules of evidence. The affidavits of both Mr Bierenkrant and Mr Caspersz contain submissions, statements of belief of the other side's motives, and irrelevancies, but there are also statements of fact in the affidavits and, as I have noted above, the facts of documents being filed on certain dates, and their contents, are established by the Tribunal's file itself.
6. In summary, Honda's submissions in support of its section 78 application were that Mr Caspersz has conducted, and continues to conduct, the proceeding in a way that unnecessarily disadvantages Honda and the other respondents by -

(a) failing to comply with Orders of the Tribunal without reasonable excuse, in particular by refusing to articulate his claim in a way which enables Honda to understand the claim sought to be made against it, which falls within section 78(1)(a); > > (b) asking for an adjournment as a result of his failures omissions and refusals to comply with the Tribunal's orders, which falls within section 78(1)(c); > > (c) similarly, causing adjournments by his failures omissions and refusals to comply with the Tribunal's orders, which falls within section 78(1)(d); > > (d) attempting to deceive the respondents and the Tribunal, which falls within section 78(1)(e); and > > (e) vexatiously conducting the proceeding, which falls within section 78(1)(f).

7. Honda submits that the Order made 6 August 2021 carefully summarised the proceeding; set out the proceeding's history of adjournments and delays, failed reconstitution and joinder applications, and Mr Caspersz' various manifestations of points of claim; and included the Tribunal's repeated directions, assistance and instructions on the importance, purpose and function of properly worded pleadings, but that the proceeding only derailed further after that Order, to Honda's disadvantage.
8. Honda submits that it made this second section 78 application, on 27 October 2022, after Mr Caspersz had failed to comply with a self-executing Order contained in paragraphs 2 and 10 of Senior Member Vassie's Order made 11 August 2022. That Order required him - by using the word "must" - to file and serve Revised Points of Claim in accordance with paragraphs 16(b) and (c) of the Order made 6 August 2021. Senior Member Vassie even included words of guidance in paragraph 2 of that Order and set out an example of how Revised Points of Claim might be organised. In paragraph 10, Senior Member Vassie said that if Mr Caspersz did not comply with paragraph 2 by 22 September 2022, either respondent may make a further application for summary dismissal.
9. Mr Caspersz did not file Revised Points of Claim. Instead, he applied to the Tribunal for a stay of Senior Member Vassie's Order made 11 August 2022, but did not obtain a stay.
10. As set out in the affidavit of Joel Bierenkrant affirmed 23 March 2023:

(a) Mr Caspersz's application to the Tribunal for a stay was heard on 27 October 2022, and was dismissed in an Order with written reasons on 15 December 2022.[30] On 3 January 2023 Mr Caspersz filed a Summons in the Supreme Court, seeking a stay of Member Vassie's Order made 11 August 2022 and other orders. On 8 February 2023 Judicial Registrar Baker dismissed the application for a stay. > > (b) On 14 February 2023 Mr Caspersz filed a Notice of Appeal in respect of the Tribunal's Orders made on 15 and 21 December 2022 and 17 January 2023. On 22 February 2023 Mr Caspersz filed a Notice of Appeal in respect of Judicial Registrar Baker's Order of 8 February 2023. > > (c) On 22 March 2023 Judicial Registrar Conidi listed those two appeals on 12 October 2023 and 23 May 2023 respectively. > > (d) Paragraph 3 of Senior Member Vassie's Order of 15 December 2022 required Honda to file and serve any affidavit or written submission in support of its section 78 application by 24 February 2023. Honda did not do so because Mr Caspersz filed his above Notice of Appeal on 14 February 2023. After the Supreme Court's directions hearing before Judicial Registrar Conidi on 22 March 2023, Honda resolved to seek a hearing of its section 78 application.

11. Mr Caspersz filed and served an unexecuted affidavit by email at 3:40pm on 24 March 2023, expressly under paragraph 4 of Senior Member Vassie's Order of 15 December 2022, in opposition to Honda's section 78 application. At paragraph 36 Mr Caspersz said that Honda had not complied with that Order and that the section 78 application "must be dismissed accordingly even on this fact alone". Mr Caspersz asserted that he did not file and serve Revised Points of Claim under Senior Member Vassie's Order of 11 August 2022 because he had applied for a stay. He complained that VCAT "wrongly relied" on that omission, but allowed Honda to make its second section 78 application on 27 October 2022 despite Honda "clearly not fulfilling paragraph 10" of the Order made 11 August 2022, which Mr Caspersz characterised as a "double standard".
12. I must say at this point that paragraph 36 of Mr Caspersz is extremely difficult to comprehend, given the plain meaning of paragraphs 2 and 10 of the Order made 11 August 2022.
13. In any event, Honda submits paragraph 36 of Mr Caspersz' affidavit is evidence of an attempt by him to mislead the Tribunal because by the time he prepared the affidavit he had received Honda's application for Directions Hearing or Orders of 23 March 2023 and Mr Bierenkrant's affidavit affirmed 23 March 2023 and so knew the reason for Honda's delay in complying with paragraph 3 of Senior Member Vassie's Order of 15 December 2022.
14. Honda also submits that Mr Caspersz misled the Tribunal at the directions hearing on 17 May 2023 conducted by Member Fry. The directions hearing was held in response to Honda's Application for Directions Hearing or Orders of 23 March 2023, and was intended to ensure that the parties would be ready for the hearing of Honda's section 78 application. Honda refers to the transcript of that directions hearing,[31] where Mr Caspersz did not inform the Tribunal or Honda that he intended to call any witness at the section 78 hearing. On 22 May 2023 Mr Caspersz informed the respondents and the Tribunal that he would seek to call as witnesses Messrs Bierenkrant, Sonny Scott, William McMinn and Diarmuid Gordon. Honda's point here is that it anticipated that time would be wasted in the section 78 hearing as a result of this conduct, and that it was both misleading and vexatious as well as misconceived. Mr Caspersz then purported to serve various summonses to witness, supposedly compelling witnesses to appear at the section 78 hearing.[32]
15. Honda says that on 23 May 2023 Justice Moore of the Supreme Court dismissed Mr Caspersz' appeal from the Order of Judicial Registrar Baker of 8 February 2023, which had dismissed Mr Caspersz' appeal from the Order of the Tribunal made 11 August 2022. On 26 May 2023 Mr Caspersz then purported to serve - well out of time and not in a proper form - Revised Points of Claim which, while purportedly being done pursuant to paragraph 2 of the Order made 11 August 2022, was not a standalone document as required by that Order but was accompanied by two earlier iterations of Points of Claim and four expert reports. Mr Caspersz wrote that by 3:00pm on 26 May 2023 he would "reasonably assume" that Honda understood the case being made against it unless Honda wrote to him by that time, saying to the contrary. In Honda's submission this put it at a significant and impossible disadvantage, given the need for Honda to provide proper instructions to its legal practitioners. Honda submits that this purported imposition of a deadline, by an applicant rather than by the Tribunal, significantly disadvantaged Honda and is indicative of Mr Caspersz's failure to understand the nature of litigation. Honda submits that it has been put to unnecessary time trouble and expense by Mr Caspersz's flawed reasoning that if an opponent does not agree with the position that he takes, that it follows that the opponent is a liar and acting deceitfully, and that if the Tribunal does not accede to any of his submissions, that it follows that the Tribunal Member is biased.
16. Honda notes that even at the directions hearing conducted by Member Fry on 17 May 2023, the purpose of which was simply to ensure that the parties had exchanged affidavits or submissions in readiness for the hearing of the section 78 application, that Mr Caspersz said,[33] "You're no different to - you're no different. With all due respect, you're no different to anyone else", echoing his allegations of corruption at the hearing on 11 August 2022, and unnecessarily taking up time.
17. Honda also notes that Mr Caspersz sent this document to Honda on 26 May 2023 despite having previously asserted that such a document was unnecessary and was not even required by the Tribunal's Orders. Understandably, Honda submits that Mr Caspersz is not the judge of the question of whether the Revised Points of Claim complies with the Order of the Tribunal made 11 August 2022.
18. Honda submits that Mr Caspersz has kept this proceeding on foot for approximately 44 months, and has disadvantaged Honda with a plethora of baseless adjournments, misconceived interlocutory applications, non-compliance with Orders and vexatious conduct.
19. In the purported Revised Points of Claim of 26 May 2023, Mr Caspersz increases the quantum of his claim to $65,000.00. Honda notes that one aspect of the attempt to amend the Points of Claim would be to add an allegation that Honda allowed the vehicle to be put on the market knowing that its fuel pump was defective, where Mr Caspersz had put into evidence, as Exhibit 2 to his affidavit of 24 March 2023, a letter to the Minister and a recall notice which establish that the car was sold well before Honda ever became aware of the potential fault in the fuel pump. This was not put as an application under section 75 of the VCAT Act, but rather because Mr Caspersz alleges that Honda was guilty of fraud and that its legal practitioners were engaged in deceit, which are criteria under section 78.
20. Mr Caspersz alleges that Honda's representatives in this proceeding engaged in deceit because they pretended to be employees of Honda but were in fact its legal practitioners. Honda submits that in order to keep costs down it has used in-house consumer advocates as its representatives, and that those persons have literally been in Honda's office. Those persons are supplied to Honda by CIE Legal. In relation to this section 78 application, CIE Legal has represented Honda and has briefed Counsel. Honda says that there is no deceit in this respect, and of course that a party requires leave to be represented by a professional advocate. In this proceeding Honda has been granted leave on some occasions but not always.
21. Honda submits that Mr Caspersz' filing of the purported Revised Points of Claim is inappropriate and contradictory to his position as forcefully previously put to the Tribunal. Mr Caspersz vigorously opposed the Tribunal ordering him to file and serve Revised Points of Claim, and has not even applied for an extension of time within which to do so. Honda submits that the Revised Points of Claim is still not in compliance in either time or form. The delay between 22 September 2022 and 29 May is 2023 is beyond inordinate, excessive, inexcusable, and the document itself does not cure the disadvantage, the delay or the non-compliance. Nor does it impact of the section 78 application.
22. Honda submits that after almost four years Mr Caspersz has still not properly articulated his case. Honda submits that Mr Caspersz has lost sight of his complaint about the vehicle, in preference to his reconstitution applications, complaints to the Judicial Commission of Victoria, and his "bigger picture agenda" to bring Honda and the Tribunal into disrepute.
23. Honda referred to a number of authorities.
24. In Bell Corp Victoria Pty Ltd v Stephenson[34] Ashley J identified the matters which need to be considered in the exercise of the discretion under section 78(2) of the VCAT Act as follows:
    • The subject matter of the belief formed by the Tribunal for the purposes of sub-s. (1).
    • The nature of the power conferred by sub-s. (2) in the context of the armoury of powers conferred upon the Tribunal by ss. 75-77. Section 78(2) operates in circumstances which at least do not require that the proceeding be frivolous, vexatious, misconceived, lacking in substance or otherwise an abuse of process; and which at least do not require that the circumstances demonstrate want of prosecution. The remedy should be of last resort and not first resort.
    • The requirement imposed upon the Tribunal by section 97. That section should be considered to import the concept that, ordinarily, the interests of case management should not be employed so as to shut a party out of litigating its case. The ultimate aim of the Tribunal, as much as of a Court, must be the attainment of justice in respect of issues joined.
    • The requirement imposed by s. 98(1)(a), to the extent that a party should ordinarily be given an opportunity to be heard upon the merits. That opportunity is not absolute. It may be lost without breach of the rules of natural justice. But the consequence that the making of an order under section 78(2) will deprive a party of an opportunity to be heard upon the merits is relevant to exercise of the discretion whether to so order.
    • The power to make costs orders conferred by sections 109(2)(3) and 78(2)(c) of the VCAT Act. The last-mentioned, it appears, might be exercised even though no order is made under s. 78(2)(a) or (b).
25. In ACN 115 918 959 Pty Ltd (formerly known as Pearl Hill Pty Ltd) v Alex Moulieris[35] Kaye JA heard on appeal against an order made by this Tribunal in a building case, in which it dismissed the appellant's claim and made an order against the appellant on the counterclaim in a proceeding, under section 78, and other provisions, of the VCAT Act. At paragraphs 87 to 93 His Honour dealt with the ground of appeal relevant to section 78 as it applied to the appellant's claim, and at paragraphs 94 to 103 to the Tribunal's decision to allow the respondent's counterclaim, under section 78, with damages to be assessed.
26. His Honour accepted the above comments of Ashley J in Bell Corp Victoria Pty Ltd v Stephenson. Relevantly, Kaye JA said that it was common ground between the parties that it was relevant, and indeed necessary, that in exercising its discretion under section 78 of the Act, the Tribunal consider whether there may be an alternative remedy available, which would not cause prejudice to the respondent in the proceeding, but which would enable the appellant's proceeding to be heard on its merits.
27. Kaye JA found that the Tribunal had considered that an alternative remedy had been proposed, not formally by way of a written Application or the like, but by the applicant's counsel in a directions hearing. That suggested alternative remedy was that the timetable be extended and the hearing date retained. The Tribunal had concluded that it was unlikely, in any event, that the appellant would comply with an amended timetable put forward by it. The Tribunal's Senior Member had said that in view of the history of the appellant's failure to comply with orders throughout the proceedings, she had 'no confidence' that it would comply with an amended timetable. In that respect, the Senior Member noted that the Tribunal had previously made other self-executing orders following non-compliance by the appellant with orders of the Tribunal, that the appellant had complied with those self-executing orders so that the proceeding could be reinstated, but subsequently it had not complied with any other orders. His Honour said that taken as a whole, the Senior Member had provided a relevant reason why she did not consider that there was an alternative remedy to dismissal available in the circumstances. The Senior Member had concluded that if the appellant were allowed more time to comply with its obligations in respect of the expert report and the provision of witness statements, under a timetable previously set in an Order, the respondent would not be in a position to conduct its case on the date on which the case had been fixed for trial on 15 November 2021.
28. Kaye JA also found that the Senior Member had stated that she did not consider it would be fair to the respondent to make a self-executing order in the circumstances. His Honour found that this was a relevant consideration.
29. His Honour found that the Tribunal had taken into account relevant considerations when considering whether to make an order under section 78 of the VCAT Act, and that the appellant's appeal from the Tribunal's order must fail.
30. In relation to the Tribunal's decision on the counterclaim, Kaye JA said the appellant had made three submissions. First, that the Tribunal failed to take into account the consideration that, if the proceeding were dismissed without adjudication, the appellant would thereby lose its right to claim a significant amount of money in circumstances in which its cause of action, in respect of that claim, was now statute barred. Thus, it was submitted, the Senior Member failed to take into account the patent hardship which the appellant would sustain if the proceeding were dismissed under section 78 of the Act. Secondly, that the Tribunal had failed to take into account the relevant consideration that dismissal of the claim, and determination of the counterclaim in favour of the respondent, was a remedy of 'last resort' and not 'first resort', and failed to take into account that other options were available, including making a self-executing order, or making an order adjourning the date that had been fixed to hear the proceeding. Thirdly, that the Tribunal had failed to consider that the order, which the Senior Member made under section 78, would deprive the appellant of an opportunity to have its claim, and its defence of the counterclaim, heard on their merits.
31. The respondent disputed the factual bases of these submissions, saying that the Tribunal had noted that the remedy provided by section 78 should be one of last resort and considered the extent to which the appellant would suffer hardship if the proceeding were summarily dismissed.
32. Kaye JA found that the Senior Member had considered the question of hardship, and whether any other option alternative remedy was available, in determining the application for dismissal, which was made on grounds other than section 78, and that it was unnecessary for the Senior Member to revisit those issues when considering the application under section 78. The Senior Member also expressly took into account that ordinarily case management should not be employed so as to shut a party out of litigating its claim, and that ordinarily a party should be given an opportunity to be heard on the merits of the proceeding, and acknowledged that the discretion under section 78 is one that should only be exercised when there is no other way to achieve a just outcome and provides a remedy 'of last resort and not first resort.'
33. Mr Caspersz made submissions in reply. I understand, of course, that Mr Caspersz is a self-represented litigant. I have heard many cases in which litigants represent themselves. I do not expect self-represented litigants to speak with the precision of Counsel, or to cite case law in the same way that Counsel might. Taking this level of expectation into account, and viewing Mr Caspersz' submissions objectively, I conclude that they amount to little more than self-justifying rhetoric that in some respects bear little resemblance to reality.
34. I set out my summary of Mr Caspersz's submissions, as well and fairly as I can:

(a) Honda has consistently not complied with time limits in this VCAT proceeding; > > (b) On 1 June 2023 Mr Caspersz sought a transcript of the directions hearing before Member Fry on 17 May 2023 and it did not arrive until 2 June 2023. > > (c) Honda did not seek leave to file and serve its affidavit under paragraph 3 of Senior Member Vassie's Order made 15 December 2022, but the Tribunal "accepted" it. Similarly, the first Order made in the proceeding required Honda to file and serve Points of Defence by 11 December 2019, and when it did so out of time, on 13 December 2019, the Tribunal allowed the document to be filed "without reason, without notice, and without giving (Mr Caspersz) an opportunity, as the applicant, to even respond to" the "purported" Points of Defence. > > (d) Similarly, Mr Caspersz objects that Member Fry, at the directions hearing on 17 May 2023, treated Mr Bierenkrant's affidavit of 23 March 2023 as validly being before the Tribunal, as if giving Mr Caspersz time to file and serve a document in reply cured the defect brought about by its late filing. He submitted that the Tribunal has allowed "the second respondent (to) do whatever (it) wants."[36] > > (e) Mr Caspersz applied for a stay on 17 February 2023 in order to afford Honda procedural fairness. That application for a stay has not yet been listed for hearing. Mr Caspersz followed up the Tribunal to ask when his stay application would be listed, and he found that he could not comply with the time limit applicable to him under the Order made 15 December 2022. Mr Caspersz also said[37] that another reason he could not comply with the time limit was that it was not clear to him what the affidavits of Mr Bierenkrant related to. > > (f) The individuals who have represented Honda before VCAT have not been employees of Honda and so therefore they have acted deceitfully. The Tribunal was deceived by this conduct, as evidenced by a statement in an Order made in February 2021 to the effect that the parties were not wasting legal costs because they were self-represented. > > (g) Mr Caspersz said that he served summonses to witness without conduct money, because Senior Member Vassie ordered that he could do so. I note here that in the hearing I said that I doubted very much that any such Order had been made. I have read the relevant Orders and the transcript of the relevant hearing, and for the removal of any doubt, I find that there is no Order which relieved Mr Caspersz of the obligation to pay conduct money when serving a summons to witness. > > (h) Mr Caspersz was not responsible for the entire delay between the commencement of the proceeding and the hearing of the section 78 application. Ever since 2019-2020, by which time Mr Caspersz and Honda had both filed experts reports, the proceeding could have been settled by Honda conceding Mr Caspersz's claim. > > (i) Mr Caspersz issued the proceeding because Garry and Warren Smith told him to, saying words to the effect, "Take your complaint to VCAT." > > (j) Stephen Collins and Robert Thorpe were persons employed by Honda who Mr Caspersz intended to call to give evidence by serving a summons to witness upon them, but they have both left the company which Mr Caspersz considers to be somewhat suspicious.

1. Mr Caspersz referred to the fuel pump issue.[38] He asserted that Honda sold the vehicle knowing that it had a faulty fuel pump[39] which could not be replaced[40] and that this had ramifications for its engine even though Mr Caspersz has only driven some 358 km.[41] He asserted that had he had the fuel pump replaced, that no one could have tested to see whether the engine had been damaged because of the operation of the faulty fuel pump. If he had known that the fuel pump was faulty, he would not have bought the vehicle.[42] Mr Caspersz has now done research with respect to the impact on the engine of a faulty fuel pump.[43]

(l) That said, Mr Caspersz conceded, "... there is no concrete evidence that the actual fuel pump in my vehicle is actually faulty, ... we still don't know and there is no test to determine that either." > > (m) Mr Caspersz said that the Order made by a Senior Member on 1 July 2020 granted him leave to amend the claim, and allowed him to rely on his original Points of Claim supplemented by an additional document. It was impossible for Mr Caspersz to comply with subsequent Orders which specified how he should set out his amended pleading. Mr Caspersz expressed this point by saying, "How can I put in anything else if you restricted it to the faulty fuel pump? I couldn't go back and then include the points of claim that was originally made on 27 November."[44] This problem then led Senior Member Vassie's Order of 11 August 2022 to be incorrect, where that Order required Mr Caspersz's Revised Points of Claim to comply with paragraphs 16(b) and (c) of the Order made 6 August 2021, because "that wasn't even an order."[45] The actual basis of Mr Caspersz claim had not changed from day 1.[46]

121 In Honda's reply, it noted instances in which Mr Caspersz portrayed himself as an unsophisticated innocent who is unfamiliar with Tribunal procedures, and submitted that the portrayal was misleading. Honda's Counsel referred to a Notice of Appeal filed by Mr Caspersz in respect of Justice Quigley's Order in Caspersz v Garry & Warren Smith Pty Ltd [2022] VCAT 1102. Counsel said that in paragraph 14, after asserting that the corruption within VCAT extended from the very core of Tribunal members to its President, that another reason why Mr Caspersz was achieving unsatisfactory results in this proceeding was that the relevant VCAT members 'feel somewhat intimidated by (his) ability as a layperson of being able to comfortably express a valid legal position.'[47]

122 I do not consider any of Mr Caspersz's above submissions to have merit, for these reasons:

(a) If it were true that Honda never complied with the time limit imposed by an Order of the Tribunal, that would not excuse the other parties from complying. It is telling that the example given by Mr Caspersz of Honda's first transgression, was that it filed and served Points of Defence on 13 December 2019 instead of on 11 December 2019.

(b) Mr Caspersz's numerous assertions that the Tribunal "accepted" documents from other parties, as evidence of its ill treatment of him, shows a singular lack of comprehension of Tribunal processes. Parties serve documents on their opponents, and file them with the Tribunal. Before email became such a common means of communication, parties would file documents at the registry in person or by posting them to the registry. If a document was late, it was not the role of the registry to refuse to accept it for filing. The document would be placed on the file. If a dispute arose as to whether the document was valid, given its contents or its late filing, that dispute would be determined by a member. Since the advent and growth of popularity of email, parties often file documents by emailing them. As I have set out when recounting the history of this proceeding, Mr Caspersz is familiar with emailing documents to the Tribunal.

(c) Mr Caspersz's suggestion that when the Tribunal received Honda's Points of Defence on 13 December 2019 it should have consulted with him, is baseless. In any event, the slightly late filing of Points of Defence did not deprive Mr Caspersz of the right to respond to the contents of that document.

(d) Mr Caspersz's criticism of Member Fry's Order of 23 March 2023 is misplaced. When the directions hearing took place, the hearing of Honda's section 78 application was some 10 weeks away. Mr Caspersz was not disadvantaged by Honda having filed an affidavit in relation to its application for directions somewhat late. Member Fry's directions gave Mr Caspersz the right to file material in opposition to Honda's section 78 application and gave him ample time to do so. The criticism of Member Fry's Order is churlish and pedantic.

(e) Mr Caspersz's assertion that he applied for a stay of Senior Member Vassie's Order, to give Honda procedural fairness, is nonsensical.

(f) Mr Caspersz's submission about whether Honda's representatives in previous directions hearings were employees of Honda or employees of CIE Legal is irrelevant to the issue at hand. It might be relevant if Honda seeks costs in the proceeding. It has no bearing on Honda's section 78 application.

(g) Mr Caspersz's submission that he was not obliged to provide conduct money when serving a summons to witness is factually incorrect, in that no Order was made excusing him from that obligation. Rule 4.20(3) of the Victorian Civil and Administrative Tribunal Rules 2018 requires conduct money to be provided when serving a summons. It is also irrelevant to the issues in Honda's section 78 application. It is indicative of Mr Caspersz's propensity to look for arguments.

(h) Mr Caspersz's assertion that he has not been responsible for the entire delay between the commencement of the proceeding in the hearing of this section 78 application is factually incorrect. This is Mr Caspersz's proceeding. As applicant, one would assume that he would want to have his case heard. Instead, he was unable to run his case on the first listed date, and he failed to understand the indulgence given to him by the first Member in converting that hearing to a compulsory conference. Then, weeks before the second listed date of 6 July 2020, he applied to amend the proceeding by adding two respondents. The addition of one of the proposed respondents necessitated the adjournment of that hearing, as the new respondent had to have the opportunity to prepare its defence. Mr Caspersz then applied for the adjournment of two directions hearings on the basis of his complaints to the Judicial Commission of Victoria being then unresolved, but where his subsequent failure to mention those complaints again can only lead to the conclusion that they were summarily dismissed. Further time was spent having Mr Caspersz's reconstitution application heard, and dismissed, by Judge Hampel. There then followed Mr Caspersz's application to again amend his claim in the proceeding, in relation to which he has failed and indeed refused to file and serve a statement of his claim. I am satisfied that Mr Caspersz is responsible for the delays in this proceeding.

(i) Mr Caspersz's assertion that he issued the proceeding because Garry and Warren Smith told him to cannot be believed. Even the way in which he made that assertion - that Garry and Warren Smith told him to "Take your complaint to VCAT" - shows that Garry and Warren Smith declined to meet whatever demand Mr Caspersz had made. Saying words to the effect "Take your complaint to VCAT" is no different from using the time honoured expression "See you in Court". It simply put Mr Caspersz in the position of being able to decide whether to take his complaint further, or not. To suggest that Garry and Warren Smith's caused Mr Caspersz to issue the proceeding is absurd. Similarly, when Mr Caspersz asserted that he regretted that the case had not been settled, he was saying no more than that Honda should have completely conceded the claim made against it. Asserting that an opposing party should completely concede is not the same as saying that case should be settled. This submission of Mr Caspersz is mere sophistry.

(j) I do not accept Mr Caspersz's submission that it was impossible for him to prepare Amended Points of Claim in a form which complied with the Tribunal's orders. Mr Caspersz was given multiple chances to do so, and guidance by the Tribunal in various forms.

(k) Mr Caspersz's assertions that the Order made 6 August 2021 was not an Order, and that the basis of his claim had never changed despite the fact that he amended the proceeding by adding a respondent, are both illogical.

1. I believe that Mr Caspersz has, and continues to, conduct the proceeding in a way that unnecessarily disadvantages Honda, and as a result section 78 applies.
2. The particular subsections of section 78(1) which capture Mr Caspersz's conduct are subsections 78(1)(a), (c), (d) and (f). Both individual acts, and the cumulative effect of his acts, are within these subsections.
3. I do not consider that Mr Caspersz has attempted to deceive Honda or the Tribunal, within the meaning of section 78(1)(e). The matters referred to be Mr Bierenkrant, such as the contents of paragraph 36 of Caspersz's affidavit of 24 March 2023 are, to my mind, merely an example of illogical, unwarranted and disproportionate advocacy which was so lacking in credibility as to be incapable of deceiving Honda or the Tribunal.
4. The Order of 11 August 2022 was a self-executing Order. It was not complied with by Mr Caspersz. He refused to comply with it. Honda's application under section 78 seeks the remedy of dismissal as a last resort and not as a first resort or otherwise prematurely.
5. The attainment of justice between the parties calls for dismissal of Mr Caspersz's claim against Honda, given these circumstances which are of his creation. Mr Caspersz is not some innocent, blundering self-represented litigant. He has mounted a campaign of harassment against the respondents.
6. The requirement imposed by section 98(1)(a) of the VCAT Act, that a party should ordinarily be given an opportunity to be heard upon the merits, is not absolute. The Tribunal's obligation to afford the parties natural justice and procedural fairness does not only apply to applicants. The respondents have been held captive in this VCAT proceeding since August 2019.[48] Mr Caspersz's vexatious conduct, and the inherent weakness of bringing a claim against the manufacturer of a motor vehicle when the subject matter of the complaint is an aftermarket tint, are relevant to the exercise of the discretion under section 78. I am satisfied that it is appropriate to dismiss the proceeding as against Honda.
7. Finally, during the hearing of the section 78 application, Counsel for Honda said that if it succeeded in its application, it would seek costs. Accordingly, I have enquired of the Listings Registrar and obtained a date and time for the hearing of that costs application. At that hearing, Honda and Mr Caspersz will be able to make submissions and produce any documents which are relevant to the costs application.

[1] If I misunderstood that submission, the position would seem to be that Mr Caspersz has filed six appeals in this proceeding and that his wife has filed one appeal in C6184/2020, under his guidance or instruction.

[2] Supreme Court (General Civil Procedure) Rules 2015 (Vic); County Court Civil Procedure Rules 2015 (Vic).

[3] An "enabling enactment" confers jurisdiction on the Tribunal. For example the Australian Consumer Law and Fair Trading Act 2012 (Vic) confers jurisdiction on VCAT to hear and determine a "consumer and trader dispute" as defined in that Act.

1. [4] Richardson J noted that in Re Law and MCI Technologies Pty Ltd [2006] VCAT 415, Justice Morris as President of VCAT had held that a power to make any order the Tribunal considered fair, which was conferred by section 109 of the former Fair Trading Act 1999 (Vic), enabled the power to be exercised by reference to 'the general principle of fairness', guided but not confined by statute and the common law, but that subsequent jurisprudence established that the power was more constrained and that VCAT must apply the law.

[5] This evolution is reflected in the Orders made in this proceeding on 1 July 2020 and subsequently in the context of Mr Caspersz's application to amend his claim by joining the third respondent and Dale Smith as fourth respondent. In the former Order, made before Teen Entertainment, the Tribunal joined the third respondent without requiring Mr Caspersz to file an amended pleading of any precision. The latter Orders, which were made after a further application by Mr Caspersz to amend, required a better form of pleading.

1. [6] Examples include Link and Connect Pty Ltd v Seng [2021] VCAT 1468 before Deputy President R Wilson; Link and Connect Pty Ltd v Seng [2022] VCAT 148 before Judge Marks, Vice President of this Tribunal; Caspersz v Garry & Warren Smith Pty Ltd [2021] VCAT 501 before Judge Hampel, Vice President of this Tribunal; and Caspersz v Garry & Warren Smith Pty Ltd (Civil Claims) [2022] VCAT 1102 before Justice Quigley, President of this Tribunal.

[7] Page 7 of the transcript of the hearing on 11 August 2022 records the Senior Member explaining to Mr Caspersz he had indicated that view in his Order because "you're really doing something that you're not entitled to do because there hasn't been a hearing that has been constituted", only to be interrupted by Mr Caspersz in mid-sentence.

[8] Page 14 of the transcript of the hearing on 11 August 2022.

[9] Page 70 of the transcript of the hearing on 11 August 2022.

[10] Page 72 of the transcript of the hearing on 11 August 2022.

[11] The written Order was issued on 29 May 2023. It is very short. As Mr Caspersz knew the timetable in that Order, what purpose was served by complaining - three business days after the directions hearing - that he had not received the written Order?

1. [12] In Link and Connect Pty Ltd v Seng [2022] VCAT 148, in which an application by Mr Caspersz's company for reconstitution of the Tribunal was heard and dismissed by Judge Marks in February 2022, Her Honour concluded her Reasons by saying, at paragraphs [52] & [53], "Link has made many interlocutory applications and filed hundreds of pages of documents in the course of this proceeding to date. The material has been sent as multiple attachments to emails, sometimes referencing other emails and documents in a confusing way. The more unnecessary material that is filed, and the harder it is to understand, the more time and resources are wasted by other parties, and the Tribunal, in seeking to understand what is sought, and why. And the longer the case will take before it is finalised." Clearly Mr Caspersz has chosen to disregard Her Honour's guidance.

[13] Page 13 of the transcript of the directions hearing on 6 November 2019.

[14] Section 117 of the VCAT Act requires the Tribunal to give reasons for orders, other than interim orders, as set out in that section. No order had been made in respect of Mr Caspersz' email of 13 December 2019.

[15] Paragraph 1 of the Order made 5 February 2020.

[16] Sections 83(4) and 85 of the VCAT Act.

[17] Mr Caspersz was still complaining about the Order of 5 February 2020 in a directions hearing that I conducted almost 15 months later on 26 April 2021, and again in one of his failed applications for reconstitution heard by Judge Hampel on 12 May 2021: Caspersz v Garry and Warren Smith Pty Ltd [2021] VCAT 501.

[18] I emphasise these words because Mr Caspersz has used "including but not limited to" in several contexts in the proceeding. Objectively, they do not merely expand his purported requirements or statements. They deprive the list which follow those words of any meaning, and leave scope for the respondent to be ambushed. The expression is designed to be unfair.

[19] In his Application for Directions Hearing or Orders form Mr Caspersz wrote that, "Directions hearing sought prior to 6 July 2020 [scheduled hearing date] with respect to the legality of the documents caused by the anomalies and nonexistence of businesses on ASIC's registers" as highlighted in his email of 22 May 2020. However, Mr Caspersz did not actually seek any directions about these matters. The connection between them and an aftermarket tint is obscure.

[20] Page 52 of the Transcript of the hearing on 6 June 2023.

[21] Caspersz v Garry & Warren Smith Pty Ltd [2021] VCAT 501.

[22] Ordering a party with legal representation to file a formal application and affidavit, but only requiring a self-represented litigant to file and serve a document, exemplifies the Tribunal's flexibility in its directions made possible by the absence of a detailed set of procedural rules.

[24] [2022] VCAT 1102.

[25] [2022] VCAT 1102 at paragraph [14].

[26] [2022] VCAT 1102 at paragraph [20].

[27] [2022] VCAT 1102 at paragraph [25].

[28] [2022] VCAT 1441.

[29] Rule 4.32(5) of the VCAT Rules provides that a document that is lodged or filed after 4:00pm or on any day that the Tribunal's registry is closed is taken to have been lodged or filed on the next day the registry is open. Member Fry had given Mr Caspersz until 2 June 2023 to file and serve any affidavit for submission, and he did not serve his affidavit until 5 June 2023.

[30] [2022] VCAT 1441.

[32] As it happens, very early in the hearing on 6 June 2023 it emerged that Mr Caspersz had not served the summonses to witness. He had emailed some of them, and had even filed declarations of service, but he did not supply any conduct money and in some instances did not even send the summons directly to the person named in them. As the summonses had not been served, they were of no effect. A person presented with an invalid summons can still feel quite distressed by its contents, though, and be unaware that the document does not impose any legal obligation on them.

[34] [2003] VSC 255.

[35] [2022] VSC 555.

1. [38] At pages 49-59 of the transcript of the hearing on 6 June 2023.

[39] Transcript, page 51 lines 1-3, 53 lines 16-24.

[48] The third respondent was joined in mid-2020, but it is related to the first respondent and in that sense the claim was made against it in August 2019.