(3) The Tribunal may make an order under subsection (2) only if satisfied that it is fair to do so, having regard to -

(a) whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding by conduct such as -

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

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding;

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law;

(e) any other matter the Tribunal considers relevant.

1. Mr Murdoch, on behalf of the respondent, submitted that there should be no order for costs. He said:

(a) It was the normal order in this Tribunal that there should be no order for costs; and

(b) That the applicant had been unsuccessful in the proceeding in that it had asked that findings be made against Dr Hooper of not being of good character pursuant to s 77(1)(d) in relation to Allegations 2, 6 and 7 and that in relation to the other allegations, there should be a finding of professional misconduct. In fact, the Tribunal made no finding that Dr Hooper was not of good character and in relation to Allegations 2, 6 and 7 found that those allegations amounted to professional misconduct while the other allegations amounted to unprofessional conduct.

Thus, Mr Murdoch stated that the applicant had not been successful in what it had asked for.

1. We disagree with this submission. In our view, the applicant has been largely successful in what it had asked for in that it has proved the allegations and serious findings were made against Dr Hooper in relation to each allegation even though those findings may have fallen short of what the applicant had requested. We also note that it was not until the submission stages of the previous hearing that the applicant suggested that we should find that Dr Hooper was not of good character in relation to Allegations 2, 6 and 7. Thus, in our view, we do not believe there has been any extra time taken up by the applicant requesting the findings which we have referred to.
2. Pursuant to s 109(3)(a)(i), on numerous occasions, we note that Dr Hooper failed to abide by directions of the Tribunal and, on one occasion, it was necessary for the Tribunal to adjourn until Dr Hooper gave an undertaking that he would abide by the Tribunal's directions. He was frequently both aggressive and argumentative with the Tribunal. Such aggression and argumentativeness was completely unnecessary, outside the bounds of proper advocacy and wasted a considerable amount of time.
3. At paragraph [113] of Dr Freckelton's submissions, he outlines what he refers to as a "modest number of specific examples" where Dr Hooper either spent unnecessary time or wasted the time of the Tribunal. At paragraph [114] Dr Freckelton states:
   1. Dr Hooper has made a number of applications or claims which had no tenable prospects of success:

114.1 On 23 January 2013, Dr Hooper unsuccessfully sought to subpoena Wayne Gladman, investigator for the Board;

114.2 Also on 23 January, Dr Hooper was unsuccessful in applying to strike out a particular in Allegation 1;

114.3 On 27 February 2013 for one half day, the Board made an application to curtail Dr Hooper's lengthy cross-examinations, which Dr Hooper was unsuccessful in resisting.

114.4 On 8 February 2013, Dr Hooper purported to make a submission about his time wastage, which the Tribunal noted wasted 10 minutes prior to cross-examination. Dr Hooper continued to dispute the Tribunal's rulings.

114.5 On 17 April 2013, the day was wasted in determining the admissibility of Dr Willcourt's evidence, on application by the Board. While the Tribunal did not allow the application, it allowed the provision of a supplementary report to repair the defects in Dr Willcourt's report and gave leave to the Board to make the application again if necessary. On 22 April 2013, around 45 minutes was wasted because the Board remade its application due to the inadequacies of the supplementary report.

1. We agree with those submissions made by Dr Freckelton.
2. In relation to the question of wasting time, there are also a number of examples pointed out by Dr Freckelton. Those examples may be summarised shortly by saying that he wasted time by swapping positions at the bar table without notice or agreement of the Tribunal. Time was wasted preparing video exhibits and for Dr Hooper to consider whether he would dispute the Tribunal's rulings.
3. Further, Dr Hooper spent unnecessary time in lengthy cross-examination particularly of the notifier, Dr Millar, Dr Bennett and Dr Ebrall. All those cross-examinations could have been completed in probably less than a quarter of the time that they took.
4. We agree with the submission of Mr Murdoch that it is particularly difficult for a party, like Dr Hooper, to represent himself. However, we note that on many occasions, the Tribunal gave Dr Hooper guidance in various matters as to what was important and what was not and the proper way for cross-examination to be conducted. By and large Dr Hooper generally disregarded the guidance given by the Tribunal. When cross-examining, Dr Hooper appeared to have a script containing questions which he was going to ask regardless of the value of asking those questions or the answers which he had received to previous questions. This conduct wasted an enormous waste of time.
5. At paragraph [124] Dr Freckelton sums up the vice in Dr Hooper's cross-examination:

The overwhelming volume of material provided by Dr Hooper, the excessive length of time taken to cross-examine witnesses and the propensity to ambush witnesses with articles in cross-examination suggest deliberate tactics to attempt to distract the Tribunal from the issues before it. This was asserted repeatedly by Senior Counsel for the Applicant but not denied by Dr Hooper.

1. Dr Hooper presented voluminous material to the Tribunal. This voluminous material has been summarised by Dr Freckelton at paragraphs [118-121] of his submissions. Dr Freckelton there states:

The Tribunal repeatedly, early in the proceedings, and then throughout them, expressed its concern at the material submitted by Dr Hooper and the way in which he was attempting to place information before the Tribunal.

It requested Dr Hooper to identify in advance relevant articles for cross-examination. Dr Hooper persistently failed to comply with the Tribunal's direction that he provide materials to the experts in order to properly prepare for the hearing. Dr Hooper used many articles in an attempt to make the same point. Dr Hooper also failed to properly adduce into evidence articles or scientific texts, despite the Tribunal repeatedly stating that it would not be prepared to receive voluminous materials. Dr Hooper continued to provide voluminous articles for the Board's witnesses, often with no or minimal notice. On one occasion, two folders of more than 80 articles and 1400 pages were provided to the Board's witness, Dr Millar.

The Tribunal put Dr Hooper on notice that the Board's witnesses were busy and that the Board would be required to pay for the time taken by witnesses to read all of these articles.

Dr Hooper spent in excess of 60 hours in cross-examining the Board's nine witnesses, compared with the Board's 14 hours to cross-examine Dr Hooper's 10 witnesses.

We agree with these comments made by Dr Freckelton.

1. Dr Freckelton has also submitted that Dr Hooper conducted the proceedings in a vexatious manner pursuant to s 109(3)(a)(vi) of the VCAT Act. At paragraphs [125-126] Dr Hooper sets out the matters where it is alleged that Dr Hooper vexatiously conducted the proceedings. Dr Freckelton there stated:
   1. In addition to the above matters, Dr Hooper has wasted many hours by:

125.1 Repeatedly quarrelling with the Tribunal's rulings;

125.2 Ignoring the Tribunal's rulings (for example, in relation to informed consent, reference to academic articles, asking questions regarding subluxation;

125.3 Alleging criminality without proper basis for doing so: behaviour which Dr Hooper was told would not be tolerated by the Tribunal;

125.4 Alleging impropriety by Senior Counsel for the Board 'looking at' witnesses, taking phone calls during an adjournment, and misleading the Tribunal and the Court;

125.6 Alleging impropriety by the Applicant and its solicitors by 'denying' the Applicant access to QS's file, and 'coercing' its witnesses in giving evidence;

125.7 Failing to acknowledge that the use of testimonials was prohibited by s 94(1)(c) of the Health Professions Registration Act 2005 and related legislation;

1. We agree with the submissions which have been put by Dr Freckelton in relation to the vexatiousness of the way Dr Hooper conducted his case. We are of the view that Dr Hooper's conduct of his case comes within s 109(3)(a)(i) and (vi), (b) and (c) of the VCAT Act.
2. Having regard to all the matters that we have referred to above, we have come to the conclusion that it is fair that costs should be awarded against Dr Hooper and we believe that such costs should be awarded on the County Court scale which is the usual scale in this Tribunal upon which costs are awarded. We did consider as to whether only part of the costs of this proceeding should be paid by Dr Hooper. However, after considering the same, and taking a general view as to the way the proceeding was conducted, we are of the view that the whole of the costs should be so paid.

1. In conclusion, we have decided that the appropriate orders that should be made pursuant to s 77(4) are:

1. The respondent's registration as a chiropractor, is cancelled. Such cancellation to take effect 28 days from the date of this decision.

1. The respondent is disqualified from applying to be re-registered as a chiropractor, for a period of two years from the commencement of the disqualification.

1. We accept the respondent's undertaking given to this Tribunal in writing and dated 18 July 2013.
2. The respondent is ordered to pay the applicant's costs of the proceeding, such costs to be taxed by the Taxation Court in default of agreement on the County Court scale.

1. For the reasons we have stated in this decision, we do not believe it is appropriate that there be a prohibition order pursuant to s 77(6) of the Act.