(b) the respondent's applications to summons witnesses pursuant to section 104 of the Victorian Civil and Administrative Tribunal Act 1998 as set out in his 'list of issues and questions' filed and served on 6 March 2012.

1. By 20 July 2012 the respondent shall file and serve the document which gives the details of each witness sought to be summonsed and states succinctly the reason why each witness is sought to be summonsed and the broad evidence it is proposed the witness will give.

1. By 4 pm on 31 July 2012 the respondent shall file and serve:

(a) a list of all evidence, including witness statements which have been filed and served to date that he continues to rely upon;

(b) all further material he intends to rely upon; and

(c) a written summary of no more than two pages of each expert, technical or medical report or article he intends to rely upon.

1. By 4 pm on 11 September 2012 the applicant shall file and serve:

(a) a list of all evidence, including witness statements which have been filed and served to date that the applicant continues to rely upon;

(b) any further material the applicant intends to rely upon;

(c) a written summary of no more than two pages of each expert, technical or medical report or article the applicant intends to rely upon; and

1. Any further expert evidence that is filed and served by the parties is to be in accordance with the Victorian Civil and Administrative Tribunal Practice Note - PNVCAT 2 Expert Evidence.

1. On or before 17 September 2012 the applicant is to file and serve one copy of and file with the tribunal three copies of, a supplementary tribunal book being a looseleaf ring folder containing consecutively numbered pages and an index of all further materials filed by the parties upon which each party intends to rely at the hearing.

1. Unless the tribunal gives leave and save in accordance with these orders neither party may:

(a) present case at the hearing different from that contained in the material lodged by that party in the proceeding;

(b) call a witness his statement has not been provided; or

(c) seek to adduce further evidence in chief beyond that contained in the statement of witnesses' evidence lodged with the tribunal.

1. On 8 April 2010 the Chiropractic Board of Australia referred this matter to the tribunal pursuant to section 59(2)(g) of the Health Professions Registration Act 2005. The allegations surround Dr Hooper's use of hyperbaric oxygenation and Lokomat treatments for a patient with cerebral palsy during the period 2007 to 2008 and are serious in nature. Dr Hooper, was at all relevant times a registered chiropractor.

1. On 11 April 2011 the matter was listed for hearing before Deputy President H Lambrick and Members J Drinkwater and M El Moussali. An issue arose at the commencement of the hearing regarding the ostensible bias of one of the chiropractic members of the tribunal. Mr Hooper made an application pursuant to section 108(1) of the Victorian Civil and Administrative Tribunal Act 1998 (the "VCAT" Act) that the tribunal dealing with the matter be reconstituted for the purposes of the proceeding.

1. The tribunal agreed with the submission, however, invoking the doctrine of necessity, concluded that the hearing should proceed before the designated tribunal to prevent a failure of Justice, there being no other chiropractic members of the tribunal[1].

1. Mr Hooper made a request to the (then) President Justice Ross to reconstitute the tribunal pursuant to s.108(4) of the VCAT Act. On 20 June 2011, Justice Ross adjourned the matter. On 1 September 2011, Justice Ross ordered that the tribunal be reconstituted, there having been additional chiropractic members appointed to the tribunal.

1. In the meantime a series of attempts were made to resolve the matter which proceeded to a compulsory conference convened by Justice Ross on 11 October 2011.

1. On 13 October 2011 Mr Hooper's (then) Counsel appeared before Justice Ross and informed him that Mr Hooper had given instructions to settle the matter on nominated terms as to findings and determinations (subject to the approval by a duly constituted panel of the tribunal).

1. On 24 October 2011, a hearing took place before the reconstituted tribunal which comprised Deputy President Lambrick and Members Waterhouse and Draper.

1. Written submissions were placed before the tribunal by the Board and the matter was subsequently adjourned for the handing down of a decision and the provision of reasons by the tribunal.

1. On 31 October 2011 Mr Hooper wrote to the tribunal advising that he sought to withdraw the proposed agreed findings and determinations submitted by his legal counsel.

1. On 14 November 2011 the tribunal convened a contested hearing to determine whether Mr Hooper should be permitted to depart from his previously adopted position. Mr Hooper represented himself at that hearing His application was opposed by the Board.

1. On 19 November 2011 the tribunal determined that it would permit Mr Hooper to withdraw his agreement to the proposed summary and determination[2].

1. A directions hearing was then convened before Deputy President Lambrick on 22 December 2011 to hear from the parties as to the future conduct of the matter. The matter was adjourned to:

(a) enable the Board to consider whether it wished to lodge an appeal in the Supreme Court; and

(b) for the parties to consider a range of other issues including but not limited to a strike out application foreshadowed by Mr Hooper and the constitution of the tribunal.

1. On 23 February 2012 Justice Ross presided over the (adjourned) directions hearing and made orders for the further conduct of the proceedings.

1. He directed Mr Hooper to file and serve the following:

(b) any submissions in relation to his application to strike out or dismiss proceeding B112/2012.

(a) draft directions relating to the hearing of proceeding B112/2012; and

(b) a reply (if any) to the respondent's strike out application.

"the parties application for costs will be determined on the papers based on the submissions already filed with the Tribunal"

1. When the matter came before us on 1 May 2012, the Board also sought that we make a ruling with respect to the constitution of the tribunal.

1. We will address the issues in the following sequence:

(a) Mr Hooper's application to strike out or dismiss the proceedings;

(b) the constitution of the tribunal;

(c) costs; and

(d) Mr Hooper's questions and issues.

(a) Mr Hooper's application to strike out or dismiss the proceedings

(1) At any time the Tribunal may make an order summarily dismissing or striking out all, or any part, of the proceeding that, in its opinion-

(a) is frivolous, vexatious, misconceived or lacking in substance; or

1. The law is clearly established that whilst a strike out or dismissal order can be made if a claim is "plainly defective"[3] the power to strike out a proceeding will be sparingly exercised. The tribunal acts with great caution.

1. In Burke v Victoria [2002] VCAT 1397 at [3] His Honour Judge Bowman said:

"for a dismissal or strikeout application to succeed, the proceeding must be obviously hopeless, obviously unsustainable in fact or in law, and on no reasonable view justify relief, or be bound to fail, which includes a situation where a complaint can be said to disclose no reasonable cause of action or where a respondent can show a defence sufficient to warrant the summary termination of the proceeding. It is, as stated, a serious matter for the tribunal, and the burden to be discharged is a heavy one"

1. In order to deal with the s. 75 application, it is necessary to understand the way in which the Board brings the matter before the tribunal.

Allegations the subject of the substantive application

1. The Board (in the further revised Notice of allegations dated 15 September 2010) makes the following allegations against Mr Hooper:

1. the respondent failed to undertake a proper assessment prior to recommending that his patient undertake costly hyperbaric oxygen and Lokomot treatment

1. the respondent failed, prior to commencing hyperbaric oxygen and Lokomot treatment to obtain informed or sufficiently informed consent.

1. the respondent failed to prepare and modify the treatment plan setting out the planned recommended treatment and how and when it would be reviewed.

1. the respondent failed to consult or communicate with Mr T's other treating health practitioners.

1. the respondent failed to monitor or evaluate any measurable improvements or otherwise in respect of Mr T's condition or symptomatology.

1. in recommending hyperbaric oxygen and Lokomot treatment the respondent misrepresented the likely effectiveness of such treatment in relation to cerebral palsy.

1. in promoting hyperbaric oxygen and Lokomot treatment on his website over a period of over 2.5 years between 2007 and 2010 in relation to numerous medical conditions, the respondent engaged in advertising that was misleading and deceptive in that he invited inaccurate inferences to be drawn about the efficacy of the treatments.

1. in providing to Mr T treatment, the respondent generated seriously inadequate clinical documentation.

1. Mr Hooper contends that the proceeding should be struck out on the basis of one or all of the limbs of section 75(1). He raises a number of issues which we will address in turn.

Hyperbaric oxygen therapy and Lokomat treatments are not chiropractic in nature

1. Mr Hooper contends that the Board (and it's predecessor, the Chiropractors Registration Board of Victoria) has no jurisdiction in relation to treatments involving hyperbaric oxygen therapy or Lokomat treatments. Essentially Mr Hooper contends that his treatment does not constitute chiropractic treatment. This is put on a number of bases including:

• that the treatments were not chiropractic in nature (Mr Hooper takes issue with the statement of Dr Ebrall which suggests that the treatments could be considered as chiropractic practice);
• that the treatments were not provided under Mr Hooper's chiropractic provider number;
• (historically) the two main insurance companies which extend coverage to chiropractors have not covered hyperbaric oxygen and Lokomat treatments within their standard policy;
• The HOTFIG and Australian standards do not support Mr Hooper's hyperbaric oxygen treatments;
• that the notifier was treated by medical doctors but not other chiropractors;
• there is no endorsement procedures for hyperbaric or Lokomat treatment of a kind comparable to that existing for acupuncture;
• section 94 of the HPRA does not apply to Mr Hooper's treatments;
• there is no training for chiropractors in hyperbaric therapies and;
• hyperbaric oxygen therapy is not regulated by the Board

1. The Board contends that the issue before the tribunal is whether Mr Hooper has engaged in unprofessional conduct or professional misconduct and/or is not of good character.

1. The Board submits that whether or not the health services the subject of these proceedings constitute services within the area in which Mr Hooper is registered is neither determinative nor relevant to these questions. Rather, it is the conduct engaged in by a registered health professional that can and must be scrutinised. Accordingly the Board maintains that whether Mr Hooper assigned his chiropractic number to bills or whether Mr T was or was not treated by other chiropractors or whether there is endorsement for hyperbaric oxygen treatment or Lokomat treatment or whether chiropractors are trained in hyperbaric therapies or the fact that hyperbaric oxygen is subject to only modest regulation are irrelevant to the conduct and character issues before the tribunal.

1. In any event, the Board points to the fact that Mr Hooper used the title "Dr Hooper" and was only entitled to do so as a registered chiropractor. Accordingly, the Board submits that in doing so he opened himself up to scrutiny.

1. Mr Hooper does not take issue with the fact that the Chiropractors Board of Victoria received a notification from the Health Services Commissioner's Office of Victoria in respect of allegations of him having engaged in unprofessional conduct or professional misconduct. He also accepts that an investigator was appointed to conduct an investigation into his professional conduct as a registered health practitioner and that he was interviewed.

1. The Board had power to refer the matter to VCAT after receiving a report from an investigator under section 59(2)(g) or 76(2) of the HPRA. The tribunal has jurisdiction to hear a matter which was referred to by the Board under section 76 of the HPRA. There is nothing on the face of the materials before the tribunal to suggest that there is a technical deficiency or that the tribunal does not have jurisdiction.

1. The allegations allege that Mr Hooper has engaged in unprofessional conduct and/or professional misconduct as defined in section 3(1) of the HPRA and that Mr Hooper is not of good character. The allegations deal with questions such as whether Mr. Hooper undertook a proper assessment of his patient; whether he obtained informed consent; whether there was a treatment plan which set out the planned treatment, its review and evaluation; whether there had been broad consultation with other relevant health professionals caring for the patient and whether there were misrepresentations made.

1. We accept the submissions of the Board that it would be open to the tribunal to find at the substantive hearing of these matters that if the conduct alleged against Mr Hooper is proven, it arises from his provision of health services.

1. Further it would be open to the tribunal to find that even if the health services constitute services outside the area in which Mr Hooper is registered, that he is still subject to the health professional regulations by virtue of his registration (at the time of the allegations) as a registered chiropractor.

1. We accept that conduct engaged in by a registered health practitioner can properly be scrutinised to evaluate whether the conduct engaged in, particularly when it is conduct relating to the provision of a health service constitutes professional misconduct or justifies a finding that a practitioner is not of good character or is otherwise not a fit and proper person to engage in the practice of that health profession.

1. We accept that Mr Hooper used the title Dr Hooper and was entitled to do so by virtue of his registration as a chiropractor and that accordingly he attracted the attention of the Board.

The experts to be called as witnesses by the Board

1. Mr Hooper emphasises that there is only one chiropractic expert from whom the Board has sought a statement. He expresses concern that the wrong question has been asked of this (and other witnesses).

1. The Board submits that it relies on the statement of Mr Hooper's patient, Mr T and statements from expert witnesses. The Board contends that the reason the experts are not chiropractors is that the work Mr Hooper performs utilising hyperbaric oxygen and Lokomat treatment is not the conventional work of chiropractors. The Board submits that the question for the tribunal is whether the work Mr Hooper has performed, as a registered health service provider is suitably professional and ethical. The Board contends that it is in this context that it has obtained expert reports from acknowledged experts in the area in which he has been practising.

1. The Board has filed and served a number of expert reports in these proceedings. We do not propose to summarise here the contents of those reports. In very broad terms, the reports address issues such as the efficacy or otherwise of hyperbaric oxygenation, its use in the treatment and management of cerebral palsy, the management of cerebral palsy and the efficacy of Lokomat in the treatment of cerebral palsy. The reports further address issues such as the monitoring of patients and the aims and expectations of the patient and therapist. In determining whether Mr Hooper has met the expectations of a registered health professional, it is open to the Board to present the evidence. These are appropriate questions to be determined by the tribunal at the substantive hearing of this matter and there is no basis upon which the tribunal should summarily dismiss the proceedings.

1. Mr Hooper sought to put into evidence before the tribunal his purpose in treating Mr T. He emphasises that the sole purpose of Mr T's treatment was (at Mr T's request) to better prepare him for planned stem cell therapy at an overseas clinic. Mr Hooper therefore contends that any premise of the Board that the treatment was designed to treat cerebral palsy is wrong and that therefore the whole basis of the application before the tribunal is flawed.

1. The Board argued that the question to be determined is whether Mr Hooper's provision of treatment is scientifically based, whether the treatments have been properly administered, whether there has been informed consent or whether false and misleading statements have been made. All of these issues in the Board's submission are questions which go directly to the issue to be determined by the tribunal at the substantive hearing.

1. The Board submits that Mr Hooper is raising issues in dispute between the parties which should be dealt with at the hearing. The Board contends that the fact that Mr T may have been receiving hyperbaric oxygen therapy or lokomat therapy in order to prepare himself for overseas stem cell treatment is irrelevant to the conduct and character issues before the tribunal.

1. We agree with the submissions of the Board. The context in which Mr T sought treatment may be a relevant factor for the tribunal to take into account at the substantive hearing as are the issues raised by the Board. These questions will be answered on the evidence properly canvassed before the tribunal.

1. Mr Hooper made lengthy submissions as to his concerns that health practitioners who challenge the pharmaceutical industry were potentially being targeted by proceedings such as those before the tribunal.

1. The Board submits that the fact that a practice is unorthodox is not unethical or inappropriate. The Board contends that the dispute in this proceeding is whether there is a scientific basis for the practice and whether patients are informed of the basis and the likely efficacy of the treatment.

1. It is not for the tribunal to determine philosophical issues about gold standard medical trials and whether there are other legitimate methods by which the efficacy or otherwise of treatment is able to be tested on an application pursuant to s. 75. Whilst these issues may have some relevance to the substantive hearing, they are not determinative in any way of the current application.

1. Mr Hooper takes issue factually with each of the allegations. He denies all of the allegations (as he is entitled to do). He raises issues about what was said by him to Mr T; the personal characteristics of Mr T and the role of other medical practitioners in Mr T's treatment. Mr Hooper makes allegations that materials taken from him during the course of the Board's investigation may have been tampered with. Mr Hooper contends that the Board in bringing these proceedings has another agenda. Without purporting to address in detail all of the issues raised by Mr Hooper, we note that they include concerns that there is no certainty that his file was returned to him by the investigator, that the Board did not seek evidence from Cerebral Palsy Australia; that the medical profession is waging a public war upon the chiropractic profession with the establishment of the Friends of Science in Medicine Organisation; that no complaints were made by Mr T during the course of his treatment program but only a significant time thereafter and that Mr Hooper alleges Mr T destroyed his website.

1. The Board asserts that Mr Hooper's conduct was not attended by basic attributes of professionalism. The Board contends that whilst a patient may be intelligent and articulate and assertive that the same person can be very vulnerable. The Board implores the tribunal to look to the representations made about the potential efficacy of treatment which the Board submits will show lacked a proper foundation. The Board denies all of the allegations made by Mr Hooper about the way in which the Board has treated Mr Hooper and in any event submits that these are not matters to be considered on a strike out application.

1. The application is for the summary termination of the proceedings. It is not the full hearing of the proceeding. We are unable to find that the Board's application is frivolous, vexatious, misconceived, lacking in substance or otherwise an abuse of process.

1. There is nothing in the material placed before us by Mr Hooper to suggest that the matter should not be heard and determined by the tribunal on the basis of the evidence to be produced.

1. We are not prepared to summarily dismiss the application on the basis of Mr Hooper's assertions of a collateral agenda of the Board. The Board has statutory responsibilities to refer appropriate matters to the tribunal and the tribunal should hear such matters in an open and transparent manner.

1. Many of the issues raised by Mr Hooper are factual matters. Many of the factual matters may well include issues which should be properly canvassed during the course of the substantive hearing. Questions of fact to be determined at a hearing do not provide a basis upon which an application should be summarily dismissed or struck out.

1. We note that the Board anticipates that it will make an application for costs if successful in relation to this application. Accordingly Costs will be reserved.

(b) Constitution of the tribunal

1. The detailed history of this matter is set out under the heading "History before the Tribunal".

1. Briefly for present purposes, on 13 October 2012, proposed agreed findings and determinations were filed with the tribunal. On 24 October 2011 we heard submissions from the parties in support of them. On 31 October 2011 Mr Hooper retracted his agreement to the proposed agreed findings and determinations.

1. The circumstances of the retraction are documented in Chiropractic Board of Australia v Hooper (Occupational and Business Regulation) [2011] VCAT 2400 (19 December 2011) as are our reasons for permitting Mr Hooper to do so and proceed with the defence of his case.

1. We accepted that Mr Hooper ultimately determined after the hearing on 24 October 2011 that he could not, in all conscience, agree to any proposed settlement of the case.

1. The Board as a model litigant, now seeks a ruling as to whether we propose to give notice to the parties that we seek the reconstitution of the tribunal for the purpose of the proceeding in accordance with s. 108(2) of the VCAT Act.

1. The Board points to section 98 of the VCAT Act and section 24 of the Charter of Human Rights and Responsibilities Act 2006.

1. Section 98(1)(a) of the VCAT Act states that the tribunal is bound by the rules of Natural Justice. Essentially this means that the tribunal must provide parties a fair hearing and be free from bias and appear to be free from bias when so doing.

1. Section 24 of the Charter of Human Rights and Responsibilities Act 2006 provides that:

a person charged with a criminal offence or a party to civil proceedings has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing

1. Mr Hooper has in written submissions dated 14 February 2012 stated that (to the extent that he is able to do so) he waives his right to complain about bias/ostensible bias. He states that he has read the Board's submissions and has no further statement to make and that he is "happy to proceed with the tribunal as currently constituted, so that the order for a full hearing can proceed as expeditiously as possible."

1. He reiterated that position before Justice Ross (as he then was) on 23 February 2012 and again before us on 2 May 2012. Mr Hooper has, therefore on not less than 3 occasions, in different circumstances, expressed his desire and willingness for the tribunal as currently constituted to hear these proceedings.

1. The parties to these proceedings are not new to a discussion of bias and ostensible bias and the doctrine of necessity. We are essentially revisiting the same principles of law discussed in Chiropractic Board of Australia v Hooper (Occupational and Business Regulation) [2011] VCAT 641 (13 April 2011). We will not in those circumstances repeat them at length here but make reference to the general principles.

1. Essentially, we must consider whether a fair minded lay observer might reasonably apprehend or suspect that we may not bring an impartial mind to the resolution of the questions we are required to decide or might reasonably apprehend or suspect that we have prejudged or might prejudge the case.

1. The old adage that "justice should both be done and be seen to be done" is an important one. Public confidence in the administration of Justice is at stake if the important principles embraced by section 98 of the VCAT Act and section 24 of the Charter are undermined.

1. In Chiropractic Board of Australia v Hooper (Occupational and Business Regulation) [2011] VCAT 2400 (19 December 2011) we said [21]:

The tribunal acts independently. It was not bound to follow the proposals put forward by the parties. The tribunal requires the parties to attend before it and make submissions in support of any proposed findings and determinations. Had the tribunal disagreed with the proposals put forward, and no satisfactory alternative resolution been found, the usual process of the tribunal would have been to remove the proposed findings and determination from the file and reconstitute the tribunal

1. We see no reason why the current situation is any different. If the tribunal having heard the joint submissions had rejected them, the proposed findings and joint submission would have been removed from the file and the tribunal would have been reconstituted. This occurs to enable to parties and the public to have confidence in the integrity of the process. It enables a freshly constituted panel to hear the case without reference to anything which may cause any concern that an impartial mind was not brought to the case.

1. We consider that a fair minded lay observer might apprehend that we may not bring an impartial mind to the resolution of the questions to be determined, having heard submissions in relation to the proposed joint findings and determinations. If ultimately we were to reach the same or a similar outcome to the proposed findings and determinations, it may appear to a reasonable observer that we were influenced by them and had prejudged the case.

1. We are mindful however of the fact that Mr Hooper is not legally trained. He is representing himself. A friend, Mr Graeme Little, assists him in his endeavours. The tribunal should not automatically accept his willingness to proceed before the tribunal as currently constituted. We note the inherent vulnerability of a self-represented litigant who may be prepared to waive such important principles without fully appreciating the magnitude and implications of the waiver.

1. We are then brought to a discussion of clause 11A to schedule 1 of the VCAT Act which states that:

the Tribunal is to be constituted for the purposes of making a final determination under part four of the HPRA by at least three members, of whom at least two must be health practitioners with professional qualifications in the health profession regulated by the board that is a party to the proceedings.

1. Once again, it is necessary to again invoke the doctrine of necessity. This is because; the tribunal has only four members who are chiropractors re are four chiropractor members of the tribunal. They are Dr El Moussali; Dr Drinkwater, Dr Waterhouse and Dr Draper. All 4 have now had involvement in these proceedings.

1. In Metropolitan fire and emergency service board v Churchill 14 VAR 9 the doctrine was invoked to prevent a failure of justice. Justice Gillard said (at page 29):

the doctrine of necessity is an exception to the rule against bias. The law is that the doctrine may apply where the person disqualified is the only one authorised to decide the particular matter in question and necessity demands that he should decide the matter. The doctrine is the product of the common law and can trace its origins back to 1429"

1. If the chiropractic members are unable to hear the case, as of today the hearing cannot proceed and can only do so if and when there are further appointments to the tribunal of chiropractic members.

1. It is not for the Tribunal to speculate in any way as to when or even whether this will occur. It is for the government alone to make that final decision. In these circumstances, there is some chance that if the chiropractic members do not hear the case there is a possibility that it may never be heard. There is no basis upon which the tribunal could presume that it is either possible or practicable to appoint other chiropractors to make the decision.

1. The public interest is however served by the matter proceeding. There are serious matters before the tribunal which both parties wish to have finally resolved. Mr Hooper has urged the tribunal to proceed to hear the matter. The VCAT Act places an emphasis on prompt, efficient and inexpensive disposition of proceedings Whilst each of the chiropractic members have heard concessions made by Mr Hooper we note that the parties are keen to have the matter proceed. Further delays in this case are undesirable.

1. In these circumstances the chiropractic members will remain. They are aware of the duties and obligations of a member of the tribunal to discharge their duties according to law. They feel able to put any concessions previously made by Mr Hooper out of their minds and having accepted the reasons given by Mr Hooper for the withdrawal of any concessions and draw no adverse inference against him from them.

1. It is not however necessary for Deputy President Lambrick to preside over this case, as it is both possible and practicable to appoint another legally qualified member. Deputy President Lambrick, as the presiding legally qualified member has essentially made the legal rulings in each of the proceedings before the tribunal. We consider that the community would have greater faith in the integrity of the proceedings if the presiding legal member were to be excised from the proceedings in these circumstances and replaced with another presiding member who is able to bring a completely fresh mind to the proceedings.

1. We are satisfied having taken into account all of these circumstances, that the balance is in favour of the reconstitution of the tribunal by the substitution of Deputy President Lambrick for another legally qualified member to hear the case together with the chiropractic members as presently constituted.

1. The Board makes application for costs thrown away by reason of Mr Hooper's aforementioned conduct in agreeing to the proposed findings and determinations and then resiling from that agreement.

1. Mr Hooper applies for costs against the Board in respect of the hearings which took place on 112-13 April 2011, 14 November 2011 and 22 December 2011.

1. The power to award costs is covered by section 109 of the Victorian Civil and Administrative Tribunal Act 1998. The starting point is that each party shall bear their own costs. However the tribunal may order a party to pay all or a specified part of another party's costs if it is "fair to do so" having regard to whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding.

1. The Board applies under section 109(2) and (3)(b) and (e) of the VCAT Act the costs thrown away by reason of:

(a) Mr Hooper's conduct in agreeing through senior counsel after a compulsory conference, convened by Justice Ross, to specified findings and determinations;

(b) the need to draft written submissions in respect of the findings and submissions to which the applicant agreed through senior counsel;

(c) the need for a hearing of one day before the tribunal in respect to findings and determinations; and

(d) the costs of this application (the application for costs) including the need to draft written submissions in respect of costs and an appearance at a hearing to make oral arguments.

1. We have discussed in Chiropractic Board of Australia v Hooper (Occupational and Business Regulation) [2011] VCAT 2400 (19 December 2011) the circumstances in which it came to pass that Mr Hooper retracted any agreement to the proposed agreed findings and determinations submitted by his legal counsel. Mr Hooper (successfully) represented himself at that hearing which took place on 14 November 2011. During the hearing the Board indicated it would apply for costs thrown away whichever way the tribunal decided Mr Hooper's application.

1. It is submitted by the Board that Mr Hooper has been responsible for prolonging unnecessarily and unreasonably the time taken to complete the proceeding and that he has unnecessarily generated costs to the registered chiropractors of Australia who are the sole providers of funds to the Board.

1. Mr Hooper has as we have stated, has given comprehensive reasons for his change of position.

1. The power of VCAT to award costs is to enable justice to be done. It is not punitive. It is compensatory. An award of costs may be made where a party has been put to an expense by the conduct of another party that it would not have expected to incur. It is for the party seeking costs to persuade the tribunal that it is fair to do so having regard to section 109. Whether it is fair to do so will be determined on a case by case basis.

1. The most pertinent subsections of section 109 are (a) - whether a party has conducted itself in a way that unnecessarily disadvantaged another party to the proceeding and (e) any other matter the tribunal considers relevant".

1. It is a difficult balance in this case to determine whether any costs should be ordered against Mr Hooper.

1. The purpose of the enabling enactment, the Health Practitioner National Law (Victoria) Act 2005 (Vic) is to, amongst other things maintain professional standards and protect the public and the profession. Findings against a health practitioner that a health practitioner has not maintained proper ethical or professional standards have a significant impact upon the professional integrity of the health practitioner.

1. We have read very detailed submissions filed by Mr Hooper in which he outlines his view of the strength of the case against him, which he considers weak. The impact upon Mr Hooper of the proposed findings would have been very significant. The submissions made by the Board reflected the seriousness of the allegations. We accept that having heard the submissions made by Counsel for the Board, that this had the effect of Mr Hooper suddenly understanding in no uncertain terms, the enormity of what he was agreeing to. We heard from Mr Hooper and accepted his explanation as to why he ultimately decided he was unable to continue with his acceptance of the agreement. We accept that Mr Hooper could not agree to the settlement proposed We do not consider that he is "playing the system" or attempting to delay the case.

1. We also note that it was not a foregone conclusion in this case that the tribunal would have accepted the proposed Findings and determination. If the tribunal rejected them and the matter was not able to be satisfactorily resolved, the parties may have been placed in the same position as they are now, with a hearing to be convened on the merits of the case. The tribunal is not a rubber stamp for an agreement reached between the parties. Having said that, parties coming before the tribunal in these circumstances do have some expectation that their agreements will be given great weight. There is now a well established line of authority that:

"where a regulatory Board and respondent have reached a negotiated settlement and the penalty proposed is broadly speaking within the permissible range having regards to all the circumstances, the Court (or in this case Tribunal) should not depart from the agreed sanction"[4]

1. We ultimately consider that Mr Hooper should not be ordered to pay the costs incurred by the Board in this matter. We consider that an award of costs would be punitive rather than compensatory.

Mr Hooper's application for costs (hearings 12-13 April 2011; 14 November 2011 and 22 December 2011)

1. Mr Hooper also filed a detailed costs submission in which he questioned whether VCAT, (having spent on his evidence a significant sum of money in legal expenses), could consistently with its vision be seen as a "low cost, accessible, efficient and independent tribunal".

1. He described how on 3 occasions (reconstitution hearings and withdrawal of settlement agreement) his arguments in relation to procedural fairness and natural justice had been accepted by the tribunal even though they were opposed by the Board. He contends that he should be entitled to his costs in those circumstances.

1. Mr Hooper considers that the reconstitution hearings could have been avoided if the Board had provided more chiropractic members to the tribunal. He appears in his submissions to hold the Board responsible for the number of chiropractic members appointed to the Tribunal. That is an untenable position. The Board is not responsible (as has been discussed above in reference to the constitution of the tribunal) for the appointment of chiropractic Members to the tribunal.

1. Mr Hooper also contends that the Board did not during the course of his reconstitution arguments act as a model litigant. This was based on his contention that the Board did not raise the Charter during the course of the proceedings and opposed Mr Hooper's applications for reconstitution and to withdraw the settlement agreement.

1. We disagree that the Board did not act as a model litigant during the course of the reconstitution or post-settlement proceedings. The Board put its position as it was entitled and required to do and the tribunal made rulings in each case. The issues were on each occasion important and significant ones which merited exploration.

1. Mr Hooper contends that the Board has conducted the proceedings in a way that unnecessarily disadvantages him. He refers to the impact on his business and reputation which he states has been affected as a direct result of the proceedings and articles which have appeared in newspapers.

1. It would be premature for the tribunal to make any ruling with respect to this aspect of Mr Hooper's submissions. The tribunal notes nevertheless that the costs described by Mr Hooper would not ordinarily be attracted by section 109 of the VCAT Act which applies to legal costs in the proceedings and not to other debts or compensation that may be owed or owing. The power to award costs is not a power to award damages.

1. Mr Hooper contends that the Board further delayed the hearing by foreshadowing an appeal to the Supreme Court, a reconstitution application and the current costs application.

1. We do not accept Mr Hooper's submissions. It is open to any party to give consideration as to whether it wishes to exercise its right of appeal and no party should be dissuaded from doing so through fear of an award of costs. We consider that the Board has acted appropriately as a model litigant in placing its concerns with respect to the constitution of the tribunal before the tribunal. We have accepted the submissions of the Board that the tribunal has an independent obligation to afford natural justice to the parties which should not be lightly dispensed with even in light of a party or parties purporting to waive same.

1. Mr Hooper makes reference in his submission to the complexity of the case and the way in which it is being conducted. He also contends that the conduct of the Board has been unreasonable and that the Board in pursing the case against him is acting in bad faith. He considers that the Board and Counsel acting for the Board are attempting to run a case which is a character assassination. Mr Hooper raises further arguments in his costs submission in relation to hyperbaric oxygen therapy and key witnesses in the proceedings. The points raised will no doubt form part of his defence to the allegations. They are not appropriately raised as part of the costs application at this stage of the proceedings.

1. The application for costs made by Mr Hooper is dismissed.

1. On 6 March 2012 Mr Hooper filed and served a list of questions and issues which we will address in turn.

1. Mr Hooper seeks to have the tribunal examine the existence or otherwise of Mr T's website materials; whether he was influenced to remove the website and the destruction of evidence. He contends that Mr T was influenced by parties and advisers involved in the proceeding to take down his website and that this was an offence against section 264 of the Crimes Act 1958.

1. Offences against the Crimes Act 1958 are not matters to be determined by the tribunal and should be addressed by the appropriate authorities. The tribunal does not propose to have a separate hearing in relation to matters connected with Mr T's website.

Ruling as to the appropriate standard against which Mr Hooper's conduct is measured

1. Mr Hooper requests the tribunal to make a ruling as to the appropriate standards of conduct required of him as a practising chiropractor. He contends that he has not departed from accepted standards and that he is perplexed and bewildered at the double standards applied to him by the Board in this case. He contends that a limited search of a selection of websites of registered chiropractors shows that reliance is placed on patient testimonials to promote the treatment of conditions, the utility and effectiveness of which have been challenged in recent scientific studies in academic articles. Mr Hooper proceeds in his submissions to give a series of examples in relation to same. He further contends that a significant number of registered chiropractors are in breach of s. 77(1)(a) of the HPRA by engaging in advertising that is misleading and deceptive inviting inaccurate inferences to be drawn by potential patients about the effectiveness of treatment in relation to listed conditions.

1. At the conclusion of the evidence given at the substantive hearing, the tribunal will hear submissions and make a ruling as to whether there has been professional misconduct and/or unprofessional conduct.

1. The tribunal in this case will be considering whether Mr Hooper in his provision of treatments has amongst other things, properly administered the treatments and obtained informed consent as well as considering whether false or misleading representations have been made.

1. Such questions go directly to whether a registered health practitioner has engaged in unprofessional conduct or professional misconduct or is not of good character. It is not for the tribunal at this early stage of the proceedings to make rulings on these matters. The tribunal notes that Mr Hooper has had the benefit of the detailed submissions prepared by the Board in relation to the law surrounding the standards applied to health practitioners by the HPRA Act. He has been directed to the meaning of the provisions against the backdrop of the common law. He has been able to see how the Board formulates its approach to his conduct. He has been directed to a large number of authorities. Whilst the Tribunal is mindful of its duty to self represented litigants, Mr Hooper is seeking rulings or legal advice on matters which go to the substantive merits of the case which it would be inappropriate for the tribunal to give. Mr Hooper is of course entitled to seek independent legal advice.

1. On 20 April 2011, Mr Hooper gave an undertaking to the tribunal to comply with the Guidelines for Advertising of Regulated Health Services. Mr Hooper contended in his submissions that he had not breached the undertaking and that he sought a determination from the tribunal on the issue.

1. The Board contended that any instance of non-compliance with the guidelines constituted a breach of the undertaking and sought that the matter be listed for a directions hearing. The board contends that an alleged breach of the undertaking may be sufficient to constitute contempt pursuant to section 137 of the VCAT Act.

1. We are not prepared to list this matter for hearing unless there is an application by the Board specifying or particularising the way in which it is alleged that there has been a breach of the Guidelines and/or the undertaking. (We note that the Board's position before us was that nothing further was required at the moment. The Board having checked the latest version of Dr Hooper's website was content that there was currently compliance. The Board indicated that provided compliance persists, that it will let the matter rest).

1. Mr Hooper makes application for orders pursuant to s 81of the VCAT Act to require Mr T, the Board, the CAA, (the Chiropractors Association of Australia) and a website developer to produce documents which he considers relevant to the proceedings.

1. The Board opposes all applications made pursuant to section 81. The Board contends that the documents are not relevant to the proceedings and does not consider that sufficient attempts have been made by Mr Hooper to obtain the documents through other avenues.

1. The matter will be listed for a directions hearing to consider Mr Hooper's application for orders under section 81 of the VCAT Act.

1. Mr Hooper seeks to summons a range of witnesses.

1. Once again, the Board questions whether Mr Hooper has approached any of the proposed witnesses to ascertain whether they would be willing to provide expert evidence in the case. The Board also contends that the reason why Mr Hooper seeks the "expert witnesses" to be summonsed remains unclear, as is the evidence it is proposed they will give. Accordingly the Board reserves its right to oppose the application for the summonses to be issued. The Board requests that a direction be given that Mr Hooper file and serve a document which gives the details of each expert witness sought to be summonsed and states succinctly the reason why each expert witnesses is sought to be summonsed and the broad evidence it is proposed the expert witness will give. Mr Hooper is agreeable to such a direction being given.

1. The application pursuant to section 104 of the Victorian Civil and Administrative Tribunal Act 1998 for the issue of summonses will be listed together with the s. 81 directions hearing.

Issues and questions arising from the Board's expert evidence and questions for the Board's expert witnesses

1. Mr Hooper seeks to ask additional questions of the Board's expert witnesses prior to the hearing to be answered by way of supplementary expert reports.

1. The Board opposes the preparation of supplementary witness statements in response to Mr Hooper's questions. The Board contends that at the final hearing of the matter Mr Hooper will be given an opportunity to question the Board's expert witnesses in cross-examination and that that would be the appropriate time for him to ask questions. The Board notes that the questions sought to be asked of the Board's expert witnesses are lengthy and require an understanding of and familiarity with a range of academic material.

1. We note that Mr Hooper's list includes lengthy rebuttals to much of the expert evidence filed and served by the Board. The Board does not object to Mr Hooper filing and serving material which addresses the rebuttal arguments outlined in his list. We will make directions that enable this to occur. We will require both parties to file and serve:

(a) a list of all evidence, including witness statements which have been filed and served to date that each party continues to rely upon;

(b) any further material either party intends to rely upon and

(c) a written summary of no more than two pages of each expert, technical or medical report or article the party intends to rely upon.

Issues relating to the Board's decision not to provide peer group evidence from practising chiropractors

1. Mr. Hooper challenges the Board's choice of expert witnesses and questions why the Board is not calling any practising chiropractors to give evidence.

1. This issue was canvassed in relation to the section 75 application. We do not propose to address this issue further. Suffice to say that it is a matter for the Board to present material as it sees fit, bearing in mind its position as a model litigant before the tribunal. It is ultimately a matter for the tribunal at the substantive hearing to determine the appropriateness or otherwise of the witnesses called by the Board. We note that the Board has agreed to make Dr Ebrall available for cross-examination at the substantive hearing.

1. As indicated above we propose to give directions to allow for the filing of any further material by the parties. We do not propose to comment at this stage on the content of the material to be filed but draw attention to the VCAT Practice Note - PNVCAT2 Expert Evidence which can be downloaded from the tribunal website.

1. Mr Hooper seeks a ruling as to who will be liable to pay the costs of the application if he is successful.

1. With the exception of the costs application the subject of this determination, the tribunal will deal with the question of costs of the proceeding at the conclusion of the hearing. The principles outlined in this decision under the heading "costs" are applicable.

Destruction of material and amendment to Dr Freckelton's website

1. Mr Hooper seeks orders that the Board notify members of the profession not to destroy any relevant material which could be regarded as evidence to support his case. He also applies for orders directing Dr Freckelton SC to amend his personal website.

1. The tribunal does not have the power to make the orders sought against non-party, third parties including Dr Freckelton.

Section 146(4)(b)

1. Mr Hooper seeks a ruling as to whether the provision of material by the Board to "The Age" newspaper constitutes a breach of section 146(4)(b).

1. Orders have been made pursuant to section 146(4)(b) of the Act. Those orders are self explanatory. They mean that the file is closed to the public and is only accessible by the parties. There is nothing to prevent members of the public or the media from attending, observing and/or reporting on the hearings. We repeat our comments in relation to the Board's submissions that Mr Hooper has breached the Guidelines and his undertakings.

1. The respondent's application pursuant to section 75 of the Victorian Civil and Administrative Tribunal Act 1998 is dismissed.

1. The proceeding is set down for a 15 day hearing to commence on 8 October 2012 at 55 King Street Melbourne before a panel comprised of a legally qualified member other than Deputy President Lambrick and Member Draper and Member Waterhouse. The tribunal is unable to sit on 19 October 2012

1. The applicants application for costs incurred in preparing submissions in support of the proposed determination and in attending the tribunal for a half day to speak to the proposed determination is dismissed

1. The respondent's application for costs incurred in the 12-13 April 2011; 14 November 2011 and 22 December 2011 hearings are dismissed.

1. The matter is listed for directions hearing at 10.30am on Tuesday 7 August 2012 (allow 2 hours) in relation to:

(a) the respondent's applications pursuant to section 81 of the Victorian Civil and Administrative Tribunal Act 1998 as set out in his 'list of issues and questions" filed and served on 6 March 2012;

(b) the respondent's applications to summons witnesses pursuant to section 104 of the Victorian Civil and Administrative Tribunal Act 1998 as set out in his 'list of issues and questions" filed and served on 6 March 2012.

1. By 20 July 2012 the respondent shall file and serve a document which gives the details of each witness sought to be summonsed and states succinctly the reason why each witnesses is sought to be summonsed and the broad evidence it is proposed the witness will give.

1. By 4 pm on 31 July 2012 the respondent shall file and serve:

(a) a list of all evidence, including witness statements which have been filed and served to date that he continues to rely upon;

(b) all further material he intends to rely upon and

(c) a written summary of no more than two pages of each expert, technical or medical report or article he intends to rely upon.

1. By 4 pm on 11 September 2012 the applicant shall file and serve:

(a a list of all evidence, including witness statements which have been filed and served to date that the applicant continues to rely upon;

(b) any further material the applicant intends to rely upon and

(c) a written summary of no more than two pages of each expert, technical or medical report or article the applicant intends to rely upon; and

1. Any further expert evidence that is filed and served by the parties is to be in accordance with the Victorian Civil and Administrative Tribunal Practice Note - PNVCAT2 Expert Evidence.

1. On or before 17 September 2012 the applicant is to file and serve one copy of and file with the tribunal three copies of, a supplementary tribunal book being a looseleaf ring folder containing consecutively numbered pages and an index of all further materials filed by the parties upon which each party intends to rely at the hearing.

1. Unless the tribunal gives leave and save in accordance with these orders neither party may:

(a) present case at the hearing different from that contained in the material lodged by that party in the proceeding

(b) call a witness his statement has not been provided; or

(c) seek to adduce further evidence in chief beyond that contained in the statement of witnesses' evidence lodged with the tribunal

1. [1]1 See Chiropractic Board of Australia v Hooper (Occupational and Business Regulation) [2011] VCAT 641

[2] Chiropractic Board of Australia v Hooper [2011] VCAT 2400 (19 December 2011)

[3] Barbon v West homes Australia Ltd [2001] VSC 405 per Ashley J

[4] Secretary to the Department of Planning and Community Development v Muto (General) [2011] 328 at paragraph 16 per Honour Justice Ross