1. Application pursuant to Section 108(4) Victorian Civil and Administrative Tribunal Act 1984 dismissed.
2. The respondent must pay the applicant's costs thrown away by reason of this application to be assessed in default of agreement under the County Court Scale.

1. Dr Hooper has been brought before the Tribunal to answer a series of allegations at the suit of the Chiropractic Board of Australia. These allegations relate to a patient who is known as QS by way of pseudonym. The allegations fall into some eight parts. The first relates to an alleged failure to make a proper assessment. The second relates to an alleged failure to obtain informed consent. The third relates to an alleged failure to prepare and modify a treatment plan. The fourth relates to an alleged failure to liaise with other treating health practitioners. The fifth relates to an alleged failure to monitor outcomes. The sixth relates to an alleged misrepresentation of likely efficacy of treatment. The seventh relates to alleged misleading and deceptive advertising and the eighth allegation relates to alleged inadequate file keeping.
2. QS is an adult male who suffers from cerebral palsy. Dr Hooper is a qualified and registered chiropractor. The allegations arise out of Dr Hooper's offering of treatment by way of the use of a hyperbaric chamber and also a machine known as the Lokomat. The precise circumstances of the treatment of QS is, of course, a matter of debate, but my understanding is that the treatment was, as Dr Hooper sees it, offered to QS with a view to preparing QS for stem cell treatment which he was intending to receive overseas.
3. This proceeding has been the subject of an extended number of directions hearings. Hearing dates have been set and vacated. Originally, the intention was that the matter proceed before a panel in accordance with the relevant legislation presided over by Vice President Judge Hicks. Judge Hicks' time at the Tribunal came to an end and the timeframe within which it was hoped he could hear the matter passed without the matter being ready for hearing. Meanwhile, however, Judge Hicks was keen to narrow the issues which existed between the parties, and certainly at the last directions hearing that he presided over, which, according to my recollection, is 28 August 2012 he urged the parties to put their heads together to try and narrow the issues.
4. Meanwhile, the Chiropractic Board of Australia has been modifying the notices of allegations in various ways and in a number of stages. At an initial stage in the proceedings, Dr Hooper was represented by senior and junior counsel. A compulsory conference convened by the Tribunal appeared to have reached a resolution and the matter was put to a Tribunal presided over by Deputy President Lambrick for the Tribunal to consider making the orders which seemed, at that point, to be agreed between the parties to dispose of the matter.
5. Whilst the Tribunal was considering whether those orders were appropriate or not, Dr Hooper determined that, in the circumstances, it was not appropriate for him to commit to the arrangement which appeared to have been agreed, and so matters became more complex. Dr Hooper's position is that, following the discussions which took place at directions hearings before Judge Hicks there was an agreed position which delineated the shape of the allegations which would be brought against him by the Chiropractic Board and, to the extent that the Board sought to reframe its allegations in a manner which Dr Hooper believes is inconsistent with that position which was agreed upon before Hicks J, this was inappropriate and impermissible.
6. In November, Dr Hooper, now assisted by Mr Little who is a qualified lawyer but does not, as I understand it, hold a practising certificate, filed a lengthy document entitled Application to Set Aside Applicant's Final Revised Notice of Allegations dated 15 October 2012. A Tribunal member had made an order in chambers authorising the modification of the allegations but reserving to Dr Hooper the ability to seek to vacate that order if he was so advised. Dr Hooper believed that the modification of the allegations was legally impermissible in the events that had occurred. He was dissatisfied that, with a final hearing fixed to commence early in the new year, this application was not brought on for hearing before the Tribunal promptly. Ultimately, it came on for hearing before Senior Member Davis on 21 December 2012.
7. Judge Hicks had made orders relative to the persons who might be the subject of witness summons under Section 104 of the Victorian Civil and Administrative Tribunal Act 1998. The effect of Judge Hicks' rulings was that a large number of potential witnesses whom Dr Hooper wished to call as his witnesses in the course of the proceeding were relieved of the opportunity of compulsory attendance upon subpoena. Only two were left. These two applied to the Tribunal to have the subpoenas or witness summonses against them set aside and, come 21 December, before Senior Member Davis were not only the application filed on 8 November 2012 but also the various summonses.
8. Mr Davis set aside those summonses on the basis that the various witnesses, who appeared by legal representative and with affidavit material, asserted that they were unable to give evidence as to the matters which would be at stake in the Board's proceeding against Dr Hooper. Significantly, one of the witnesses who was excused, a chiropractor by profession, said that he would be able to offer evidence on the subject of subluxations.
9. Subluxations will bulk large in the determination which I am now giving, so I need to say something more about them now. In orthodox medicine a subluxation is no more and no less than a dislocation. If my shoulder were dislocated, a doctor might describe it as subject to a subluxation. In chiropractic, however, the expression has a far wider aspect than this. For present purposes, I am not fully informed as to the significance of the concept of subluxation in Chiropractic, but it is a matter of great importance. Some couple of years ago a chiropractor was the subject of stern disciplinary action relative to treatment which he gave which, according to the registration authorities was excessive, said to be in treatment of subluxations. The practitioner was Dr Pearson-Gills.
10. When Mr Davis set aside the summons relative to the practitioner who said that he could give evidence about subluxations, implicitly Mr Davis was ruling that the issue of subluxations was irrelevant to the proceeding involving Dr Hooper. Since Dr Hooper had foreshadowed asking this witness about subluxations, it is clear that Dr Hooper disagreed with this.
11. The proceeding came on for hearing before a panel presided over by Senior Member Davis and commenced last month. It has proceeded over some 13 days and evidence has been heard from the patient involved, whom we describe as QS, who is also referred to as 'the notifier'. Only one expert witness has been completed and the period of the hearing has been taken up substantially with relatively short examination-in-chief of witnesses called by the Board through its counsel, Dr Freckelton, and far more lengthy cross-examination by Dr Hooper.
12. On the 13th day Dr Hooper sought to cross-examine a witness on the subject of subluxations. Senior Member Davis upheld an objection on the part of Dr Freckelton for the board that subluxations were irrelevant to the matters before the Tribunal. The matter was stood down for a brief time to enable Dr Hooper to confer with Mr Little. When the matter resumed, Dr Hooper continued to ask questions of the witness about subluxations.
13. Mr Davis reminded Dr Hooper of his ruling and required him to move on to another subject. At that point, Dr Hooper made application that Mr Davis disqualify himself from further sitting in the proceeding on the basis of apprehended bias. Dr Hooper explained that his objection was directed solely to Senior Member Davis and not to the chiropractor panellists who sat with him. Mr Davis heard the application which was mounted by Dr Hooper who was representing himself in fairly narrow compass, saying in substance that he was being blocked from a vital line of cross-examination and that to block him on such a vital matter was in itself indicative of bias. Mr Davis did not accept that submission.
14. Following Mr Davis' ruling, Dr Hooper gave notice that he applied under Section 108(4) of the Victorian Civil and Administrative Tribunal Act 1998 for an order that the President reconstitute the Tribunal. Section 108 of the Victorian Civil and Administrative Tribunal Act 1998 is headed 'Reconstitution of the Tribunal' and empowers the President of the Tribunal to effect such reconstitutions. A party may apply for a reconstitution, and if the Tribunal which is asked to reconstitute itself or to agree to a reconstitution declines to do so under subsection (1), the party, if he or she continues to be aggrieved may apply to the President effect the reconstitution.
15. The presidential power as to reconstitution has been delegated by a written instrument to each Vice-President of the Tribunal of which I am one, and so the matter comes on for hearing before me. Section 108 of the Victorian Civil and Administrative Tribunal Act has been the subject of consideration in a number of written decisions of the Tribunal, most notably by Morris J as President of the Tribunal in State of Victoria v Bradto Proprietary Limited [2005] VCAT 2512; (2005) 23 VAR 475. What Morris J said in the Bradto case was that the section covers a wide range of possibilities and perhaps has as its most obvious operation where, for instance, a party believes that a particular expertise should be represented on the Tribunal, and the Tribunal should be reconstituted so as to include an expert Tribunal Member in a particular discipline.
16. He said however, that it was wide enough to cover the situation which we have here, namely, where a party invites a Tribunal Member to disqualify himself or herself on the ground of apprehended bias and the member declines to do so. When the matter was called on for hearing before me yesterday, it was obvious from a set of written submissions that Dr Hooper proposed making, that he sought to raise a number of matters in the application under subsection (4) which had not been canvassed last week before Senior Member Davis. I was initially impressed with the thought that the application made to the President or his delegate had to be the same application which had been refused under subsection (1).
17. For reasons that I then gave, however, I considered ultimately that the language of the section did not mandate that outcome. And so, if there was an application to reconstitute under subsection (1) which was rejected and which enjoyed, if you like, at least some overlap with what was then raised under subsection (4), it was competent for the wider range of matters to be relied upon.
18. Given that the narrative that I have mentioned, so far already sets up, if you will, the particular point that at least initially led Dr Hooper to make his application, I think it is appropriate that I turn to that matter first. Namely, the ruling which Senior Member Davis made blocking Dr Hooper from pursuing cross-examination of the witness who was in the box at the time and presumably other witnesses, on the subject of subluxation. First, it is necessary to say something a little bit further about the issues that are before the Tribunal as far as the Board is concerned. The Board says that Dr Hooper undertook a course of treatment with the devices which I described earlier, and in the case of QS, did not advertise them properly, made claims for their efficacy which scientifically could not be supported and so forth.
19. What has been at the heart of the dispute and the present application is the contention put by the Board that the treatments as offered by Dr Hooper were lacking in scientific efficacy for the benefits which the Board alleges Dr Hooper was offering with those treatments. Dr Hooper, of course, in a broad sense wants to contend that his treatments are in fact efficacious but he wants to make a further point. He says that there are elements of Chiropractic which are not scientifically efficacious or in accordance with evidence-based practice. Therefore, his contention is, how can the profession of Chiropractic as embodied in the Chiropractic Board of Australia call him to account on these issues of scientific efficacy with any credibility? He wants to demonstrate that Chiropractic as a profession has no credibility on these issues of scientific efficacy.
20. He says, and he refers to the characterisation of the sorts of proceedings adopted by Hicks J in one of the direction hearings, that a key step in any professional discipline entails a comparison between the subject practitioner and his colleagues. Dr Hooper says:

If I'm not scientifically efficacious which I do not necessarily accept, I'm not less lacking in scientific efficacy and value-based credibility than chiropractic generally with its reliance on the concept of subluxation amongst other things."

1. It may be that there would be other matters which, given the opportunity of a favourable ruling, Dr Hooper would wish to pursue along the same lines.
2. Dr Freckelton, in argument before Mr Davis, said in effect that this was an attempt to put the profession of Chiropractic on trial and this was simply not competent in a proceeding of this type. Mr Davis seemed to accept that proposition. He did not rule at any great length, but when he was referred to a report by a Victorian Parliamentary committee apparently published in 1975 which called into question the credibility of Chiropractic and whether it could be regarded as science-based, Mr Davis referred to the fact that there is now Parliamentary legislation which recognises Chiropractic. What I took Mr Davis to mean by that was that, since Parliament has recognised Chiropractic as a profession and established a disciplinary regime for the registration and discipline of chiropractors, these matters require this Tribunal to approach Chiropractic on the basis that it is assumed to have credibility and that therefore the sort of attack that Dr Hooper wants to mount on it is simply impermissible.
3. I now return to Section 108(4). As I mentioned in my ruling yesterday, it is anomalous. If a litigant were in the Magistrates' Court and felt that a magistrate were exhibiting bias, it would not be competent for the litigant to apply to the Chief Magistrate for the reconstitution of the court. A litigant who is dissatisfied and felt that a judge of the County Court was exhibiting bias could not effectively approach the Chief Judge and seek a reconstitution. Someone who felt dissatisfied with alleged bias of a judge of the Trial Division of the Supreme Court could not approach the Chief Justice and ask for a reconstitution. In all cases in those institutions, the only way of achieving a reconstitution would be to obtain an order by way of judicial review or appeal from a court one step up in the hierarchy.
4. So, a judge of the Supreme Court could, and judges have, intervened by way of judicial review in the proceedings in the County Court based on these considerations and certainly they have done so relative to the Magistrates' Court. The Court of Appeal could no doubt similarly intervene in a trial in the Supreme Court Trial Division. In my view, what I am called to do requires me to apply the same principles as a judge sitting in a judicial review of that type would apply in considering whether apprehended bias as alleged by Dr Hooper has been demonstrated in the way this matter has been conducted.
5. There is however, in my view, one very important proviso to that. A court on some form of judicial review proceeding, whether it be under the Administrative Law Act, Order 56 of the Rules of the Supreme Court or a common law application for one of the prerogative writs (if such processes are still available at the State level) could, aside from intervening based on an issue of alleged apprehended bias, also intervene if it appeared that there was an error of law on the part of the court or tribunal which went to jurisdiction. The effect of the decisions of the High Court is that in a tribunal, as distinct from a court, almost any error of law is going to be regarded as a matter going to jurisdiction.
6. That would mean that a judge sitting in some sort of judicial review proceeding would be entitled not only to intervene if he or she were satisfied that there was a case of apprehended bias, but if there were a serious error of law it would be appropriate for the judge, if he or she felt it was in the interests of justice to do so, to intervene on the basis of jurisdictional error. The anomalous features of Section 108(4) to my mind do not give me the power to take that sort of action here. If we look at the analysis made by Morris J in the Bradto case and the other decisions to which his Honour makes reference, including a pioneering decision of Kellam J in Metrospan Developments v Whitehorse City Council [2000] VCAT 44, we find statements that section 108(4) is not an occasion on which some sort of internal appeal process can be availed of.
7. So therefore, the only ground which could justify me in the circumstances that exist here to make the reconstitution that Dr Hooper asks me to make is a finding that there has been exhibited what the law regards as apprehended bias. Dr Freckelton has referred me to a classic statement of the law by the High Court of Australia. There have been a large number of decisions on apprehended bias by the High Court of Australia in the last 30 years and I think it is fair to say that, whilst each of them has been illustrative of the application of a well established principle to a different set of facts, the principles that the Court has applied have remained constant over that period.
8. For present purposes, the formulation in Webb and Hay v The Queen [1994] HCA 30; (1994) 181 CLR 41 at paragraph 11 is appropriate:

The proper test is whether fair minded people might reasonably apprehend or suspect that the judge has pre-judged or might pre-judge the case.

1. The authorities elaborate upon that relatively broad brush statement of principle in a variety of ways, and without going to those authorities in any individual way, they make points such as that the apprehension must be real rather than remote, so a judge who owns shares in a litigant corporation will be the subject of apprehended bias if the outcome of the litigation could affect the value of the shares, but if not, the mere formal existence of the relationship of shareholder and corporation does not disqualify the judge based on apprehended bias. The reasonable bystanders who are the yardstick of the application of the principle are regarded as having some sort of knowledge of the operation of the legal system rather than being entirely ignorant of it.
2. So for instance, the reasonable observer is expected to know that a legal practitioner has a professional commitment, but without something more, no personal commitment to the cause of his client. So, a judge who has acted in the past for a corporate litigant is not disqualified from sitting on a case involving that corporation unless there is some issue as to, say, the credibility of an officer with whom he is acquainted or advice that he has given is called into question and so forth.
3. So how, then, do these principles apply to the present situation? I will turn immediately to the issue as to the cross-examination on subluxation. What Dr Hooper says here is that he has received an adverse ruling on a matter of single importance to him, and that this is just so wrong that no reasonable bystander could conclude anything other than that the person who gave it might have pre-judged the case against him. That is the essence of what I think Dr Hooper says on this point. I have already explained what I understand to be his rationale for pursuing - or wanting to pursue - a line of cross-examination about subluxation and I have explained what I understand was the rationale of the ruling given by Senior Member Davis. He made the further point that this was a case about hyperbaric chambers and Lokomat machines and not about subluxation. The issue now joined on the correctness of this ruling raises what I think is a difficult and sensitive point in connection with statutory regulation of what one might describe as alternative therapies such as Chiropractic.
4. Generally, the law favours orthodox medicine. When, under the Transport Accident Act, the Transport Accident Commission assesses the level or permanent impairment suffered by an accident victim and thereby creates an important set of entitlements, or lack of entitlement, for that individual it uses a book called the 4th Edition of the Guide to the Assessment of Medical Impairment published by the American Medical Association. That book includes a stipulation that 'only a physician' can give an impairment assessment. 'Physician', in this context, and the context of an American publication, means an orthodox medical practitioner.
5. So for these purposes and for the purposes of a review of such a determination in the Tribunal or the fixation of all sorts of things such as the availability or non-availability of common law damages, orthodox medical practitioners are in and alternative therapists like chiropractors are out. And generally, in court and personal injury matters, whilst alternative practitioners are given credence as to the narrative of what was done, their opinions as to diagnosis and prognosis are generally not given credence. Yet, the law now gives credence to many of these alternative therapies by the establishment of statutory regimes registering and providing disciplinary structures for them.
6. Again, to go back to the Transport Accident Act, injured people have an entitlement to medical or life expenses. And the definition of those expenses extends to treatments provided by the alternative therapeutic professions. What all this tells me is that our legal system's embrace of these alternative therapies is ambiguous. It seems to me that there is an argument for saying that someone in Dr Hooper's position should be able to put the profession that seeks to discipline him on trial itself. But on the other hand, it seems to me there are arguments that are relatively strong that, once Parliament has embraced Chiropractic to the extent that it has, approving it as a treatment modality under the Transport Accident Act, sanctioning its registration and disciplinary processes, we must assume, and conduct hearings such as this, on the basis that it is a credible profession which cannot be put on trial in an ordinary proceeding, that Parliament has made its decision and therefore no trial is possible.
7. I am inclined to the view that Mr Davis is right; but I accept that there are strong arguments to the contrary effect. The question is: is the giving of a ruling, even on a very important point which is arguably wrong in itself, the manifestation of something which could be regarded as bias in accordance with the test postulated by the High Court? In my view, this cannot be so. As Morris J said in the Bradto case: Judges and Tribunal Members are called upon to give rulings all the time. Regrettably, not all these rulings are ultimately approved of on appeal. Invariably - as Morris J notes - at least one party is going to be dissatisfied. The fact that there is a matter that may very legitimately be ventilated before the Court of Appeal does not, in itself, indicate that a member who rules the one way or the other way has conducted himself or herself in a way that would lead a reasonable observer to think that he or she might have prejudged the case.
8. Therefore, on this fundamental and main point which forms the basis of Dr Hooper's challenge and contention that there should be a reconstitution, I reject it. Dr Hooper, as I explained earlier, proceeded to raise a number of other matters in the conduct of the proceeding beyond those that he raised before Senior Member Davis. And in accordance with my ruling, I have allowed them to be argued as well. The first of this pertains to what occurred at the directions hearing on 21 December. I have explained the background that the Board contended that, in the circumstances, it was entitled to reformulate its case against Dr Hooper.
9. Dr Hooper was contending, through Mr Little, that in the events that had occurred, there was an agreement before Hicks J which precluded the Board from doing that. Dr Hooper complains that a lengthy written document, to which I have made reference earlier, was filed, by him and was not considered by Senior Member Davis. Senior Member Davis denied having seen the document. Dr Hooper said he conducted a subsequent inspection of the Tribunal file and consulted with registry officers. This satisfied him that the document was on file and could have been read by Senior Member Davis. Dr Hooper went so far as to say, therefore, that Senior Member Davis had told a deliberate lie.
10. I was taken to various transcript passages and Senior Member Davis did deny having seen the document. He later seemed to modify his position, not so much to be a denial that the document had been filed but that to say he had not read it, not being aware that so extensive a body of material was there to be read for what was designated as a directions hearing. I regret to say I have frequently been in the position of saying that I do not have documents where a more diligent search has ultimately proven that the document is in the file. This is commentary upon my lack of perspicacity and sometimes my distraction. I have not, in those circumstances, told deliberate lies and I think it is overwhelmingly likely that this is the explanation for Senior Member Davis' misstatements as to the existence of this document.
11. But Dr Hooper, I think, made a more fundamental point. He said that a consideration of the transcript of what occurred on that day indicated that not only was the particular document not read and digested but that the arguments to be found in it, which Mr Little sought on a number of occasions to put, were brushed aside. Mr Davis proceeded on the footing, as I read what he said, that the complaint to be made against Dr Hooper was really a matter for the Board and the Board could complain about what it wanted to complain about. The Tribunal had broad powers of amendment and no amendment which the Board, as the party who was bringing the proceeding, wanted to make a reasonable time before the final hearing should be excluded unless it could be shown that there was some special prejudice.
12. Mr Little, as it seems to me, did not wish to engage on that point. The contention which he wished to put on behalf of Dr Hooper was that there had been an agreement before Judge Hicks and that the Board was simply precluded from departing from that agreement independently of Dr Hooper being able to point to any prejudice that he might suffer as a result of the departure. Amongst the cases which Mr Little sought to rely on were Aon Risk Management Pty Ltd v Australian National University (2009) 239 CLR 175 and the famous and controversial case of Verwayen v The Commonwealth (1990) 170 CLR 394. That case, said Dr Hooper and would have said Mr Little if he had had the opportunity, precluded the Board from departing from an agreed position.
13. Again, for the directions hearing to have gone off in the way that it did with Dr Hooper's objections, as he saw it, brushed aside and not given proper consideration, created a reasonable apprehension of bias such that Senior Member Davis should be removed. Now, there are a number of comments that might be made as to that. In the relatively short compass of this application in the middle of the hearing, a trial within a trial, if you will, I have not had the opportunity or, indeed, sought to avail myself of the opportunity to delve into all the nooks and crannies of the procedural history of this matter, and therefore, to the extent that I express some views on it, there must be a risk that I am not informed by every little detail. But I did invite Dr Hooper to read to me, and he said that he did, the words with which Judge Hicks parted with this proceeding on a directions hearing held on 29 October of last year.
14. Judge Hicks urged the parties to narrow the issues. He commended Dr Hooper to speak to Dr Freckelton whom he assures Dr Hooper he would find cooperative with a view to streamlining matters. This scarcely seems to me to be a statement which a judge would make if he felt there was already, if you will, a binding agreement between the parties. Secondly, when I asked Dr Hooper to identify, in terms of the Verwayen principle, what reliance to detriment he had engaged in to satisfy the requirements of the principles adopted in Verwayen's case and to make it unjust to allow the Board to go back on what it had allegedly agreed to, he did not, as best I could understand, identify anything in particular. He said that the Board had agreed to something. Reference to what Judge Hicks has said rendered me doubtful on that point.
15. In Verwayen's case, there was a Court proceeding which had been conducted for years and years upon the footing that the Commonwealth of Australia would not rely on the statute of limitations which would have given it an absolute defence. At a very late stage, the Commonwealth changed its mind and decided to rely on the statute. A divided High Court, by majority, said that the Commonwealth was in the circumstances estopped from changing its stance. I have heard nothing in this case that would suggest that anything of the sort happened in this proceeding.
16. So it seems to me open to question that there was a strong argument that matters could not be approached in precisely the way that Senior Member Davis did, namely, to ask, according to orthodox principle, whether there was any unfair prejudice which would affect Dr Hooper if the Tribunal exercised its undoubted and very wide discretion to allow amendment to the proceeding. But more pertinently than that, Dr Hooper has candidly said that he was so dissatisfied with the outcome of the directions hearing on 21 December that he gave serious consideration to lodging an appeal to the Supreme Court of Victoria. He had previously, in between two directions hearing before Senior Member Davis, brought an application for leave to appeal to the Supreme Court.
17. He had been told, in effect, that his appeal was premature and that the matters which he sought to agitate were, at least initially, for the Tribunal to determine as to the manner that the matter would go forward and not for the Court. What Dr Hooper at that stage had wanted the Court to do was to intervene and assert and enforce the agreement that he said had been reached at the hearing before Judge Hicks. Now, what happened after the directions hearing on 21 December was that the substantive hearing began and ran before a three member Tribunal for some 13 days. No doubt this has been a very expensive process, financially and emotionally for Dr Hooper and Mr Little. It has been financially expensive for the Chiropractors Board and it has consumed a lot of the Tribunal's resources.
18. Is it possible for someone who believes he has a good bias point to say, 'Well, on balance, I don't think I'm going to pursue this but I will reserve the right to bring it up later.' The law says that this is something that a party cannot do. In Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568, the defendant in a personal injury case was dissatisfied with intemperate remarks made by a Trial Judge as to some three medical practitioners who were expert witnesses for the defendant. At the time, counsel for the defendant made complaint but the Judge declined to take any action or to withdraw the comments. The matter then proceeded to a judgment against the defendant and it was sought to raise those matters on appeal.
19. The High Court held that it was not competent, in those circumstances, for the bias allegations I have described to be relied on where the party had identified them but allowed the case to continue to a final determination and verdict. The Court did ultimately, however, set aside the judgment on the basis of intemperate remarks which it identified in the judgment delivered by the Judge which, by definition, could not have been complained about by the defendant in the course of the trial. The directions hearing of 21 December was a distinct and separate thing, and once Dr Hooper decided not to seek Supreme Court intervention at that time, or to set in train some process such as the one that has brought us here today, and then allowed the matter to run for 13 sitting says, it was not competent for him now to seek to raise those matters and rely upon them.
20. In my view, the matters relied upon would not give rise to a reasonable apprehension of bias because, for the reasons which I have given, I believe Senior Member Davis' approach was legally sound. But if I were wrong in that, it is too late to complain about those matters now. If the matter were before a Judge of the Trial Division on some form of judicial review, he would not countenance those matters as grounds for intervening on the basis of apprehended bias. And so I put those matters to one side. I turn then to the other matters which were raised by Dr Hooper in the course of his application. He did a survey of the transcript of the relatively lengthy hearing that has taken place already.
21. He says that he ascertained upon that check that Dr Freckelton, on behalf of the Board, had made no less than 134, or was it 135, objections to Dr Hooper's cross-examination. Now, whatever the precise number, he said all but one of those objections was determined against Dr Hooper. Dr Hooper did not descend to an individual assessment of those objections. And certainly, having regard to the amount of time that would have been consumed if he had done so, I did not seek to convince him that he should. He relied simply upon the manifest imbalance in the outcome: 134 victories for Dr Freckelton, one victory for Dr Hooper. Dr Hooper said that a reasonable observer could not but apprehend bias in those circumstances.
22. Dr Freckelton said that the manner in which Dr Hooper had sought to conduct his cross-examination was unsatisfactory in a whole series of ways and the questions that he asked were legally objectionable. Dr Freckelton said it was his obligation, as counsel for the applicant, to object to those improper questions and it was the duty of Mr Davis, as the presiding member, to disallow those objectionable questions and the imbalance was indicative of how inappropriate Dr Hooper's cross-examination was, rather than something which should reflect upon the even handedness of the presiding member.
23. As I have already indicated, I have not sought to delve into the 134 particular instances, but my thought is that Dr Freckelton's contention is the correct one and I do not accept that it is reasonable to apprehend bias merely based upon the circumstance of the imbalance in objections. This is a very difficult process for Dr Hooper and it would be unsurprising if he was, from time to time, straying from legal principle as to how a question should be asked, particularly of expert witnesses, and it would be unsurprising if Dr Freckelton would object.
24. I turn then to the further matters which have been relied on by Dr Hooper. Dr Hooper noted that Professor Ebrall agreed that the hyperbaric chamber treatments and the Lokomat treatments could be regarded as falling within the scope of chiropractic treatment. He then complained that, in light of that answer, it was inappropriate for Mr Davis to make the ruling that he did on 21 December. I have already indicated that, right or wrong, what happened on 21 December is not something that can be relied upon. My inclination is to think that there is a non sequitur in the alleged inconsistency between the two matters, but in the circumstances, it is unnecessary for me to elaborate further.
25. The issue of cross-examination as to subluxation, which, as I have sought to indicate, is a matter of central importance to Dr Hooper, crops up in many places in the course of his lengthy written presentation, which extends over 60 paragraphs. To the extent that I have dealt with that issue and the broader issue as to whether or not Dr Hooper can put the chiropractic profession on trial in this proceeding, I believe that I need say no more on those matters. Amongst the other matters that were the subject of complaint by Dr Hooper were a variety of matters relative to the general conduct of the hearing. He said, for instance, that Senior Member Davis misstated the evidence which ultimately emerged from QS, relative to the benefits which he had derived from Dr Hooper's treatment modalities.
26. Mr Davis put to Dr Churchyard that the upshot of the evidence was that no benefit had been sustained other than an improvement of QS' condition, which was in train before he undertook the treatment. Dr Hooper said that this was a misstatement of the evidence. Dr Freckelton took me to the various passages, where it is fair to say that there is perhaps some inconsistency in the evidence which QS gave. The overall effect might leave one somewhat confused. If Senior Member Davis was confused, then that is perhaps regrettable, but for a person to perhaps be slightly confused by confusing evidence does not, to my mind, manifest what would be regarded by a fair-minded observer as bias.
27. To state the obvious, it remained open to Dr Hooper, if you like, to redirect matters by taking Dr Churchyard to any passages in the evidence of QS which he felt Mr Davis had not done justice to. Mr Davis was also taken to task in a number of specific transcript references, in which he sought to redirect the questions put by Dr Hooper to something which represented what Mr Davis apprehended the case was about. Again, these matters are to my mind in the same category as the ruling which he gave on cross-examination relative to subluxation. There are arguments to say he took too narrow a view of what the case was about; but merely to be wrong on a point like this is not to exhibit bias, though in having said that, I am not to be taken as assenting to the view that Mr Davis was wrong.
28. Dr Hooper said that he was deprived of the opportunity to view the file held by treating general practitioner for QS, Dr Hodgson. Dr Freckelton took me to passages in the transcript which seemed to me to demonstrate that what Mr Davis had declined to do was to provide a photocopying service to Dr Hooper. Dr Hooper was given the opportunity to look at the file which was produced by Dr Hodgson. It is axiomatic that this is a Tribunal and not a photocopying service, and I am unclear as to how it could be said that these matters exhibit bias.
29. Again, Mr Davis seems to have ruled out reference to some official report or other document from the state of Queensland relative to the use of hyperbaric chambers outside the realm of hospitals. Dr Freckelton took me to the transcript passages, and certainly those passages did not make clear to me, nor did Dr Hooper's submission, as to precisely what significance should be attached to this document. It seems clear, and I cannot think it can be open to question, that it is proper for hyperbaric chambers to be used outside hospitals; I do not understand it to be contended otherwise. This was the view that Mr Davis took. Again, it might be right or it might be wrong, but I do not believe that it exhibited bias. My inclination is to think that it is correct. Dr Hooper complained he was deprived of an opportunity to cross-examine. Reference to the transcript shows that what he was prevented from doing was restarting cross-examination whilst Dr Freckelton was engaged in re-examination. I may be so bold as to say that this was quite a proper ruling.
30. I was also referred to a passage in which he objected repeatedly to Dr Freckelton's re-examination by reference to documents which had been the subject of comment in evidence-in-chief. Dr Hooper quoted a passage from a work on expert evidence co-authored by Dr Freckelton and Mr Selby. I did not consult the work myself. My understanding is, whatever might be said in Dr Freckelton's book, that if a matter is canvassed in cross-examination, if it is a relevant matter, it is appropriate for re-examination. If Dr Freckelton's book says anything different, I would take liberty to disagree with it. I pointed out to Dr Freckelton that the work of a living author cannot be treated as an authority. For all these reasons, I do not sustain or grant the application that the Tribunal be reconstituted, as requested by Dr Hooper.

1. I've given my reasons for declining to exercise a delegated power under Section 108(4) of the Victorian Civil and Administrative Tribunal Act 1998 to reconstitute the Tribunal hearing this proceeding in which the Chiropractic Board of Australia is applicant and Dr Malcolm Hooper is respondent. As a result of that determination, Dr Freckelton, counsel for the Board, has sought an order under Section 109 of the Victorian Civil and Administrative Tribunal Act 1998 that Dr Hooper pay the Board's costs, thrown away by reason of this application and the necessary adjournment of the substantive hearing. Dr Freckelton concedes, I think, though he did not specifically say it, that Section 109 of the Victorian Civil and Administrative Tribunal Act 1998 which is the Tribunal's general costs power establishes a regime where the prima facie or default position is that costs lie where they fall.
2. It is only if it is demonstrated under subsections (2) and (3) that it is fair to depart from that default position by reference to the various matters referred to in subsection (3) that it is appropriate to make an order of costs against a party who is not victorious. To put it another way, the rule that operates in Court that costs follow the event does not operate in the Tribunal where this section applies. Dr Freckelton has noted that, by virtue of Section 109(2), the Tribunal may order that a party pay all or a specified part of another party's costs in a proceeding if it is fair to do so. Having regard to the matters set out in subsection (3) of the Act which he relies upon, are as follows:

(a) Whether a party has conducted a proceeding in a way that unnecessarily disadvantaged another party in the proceeding by conduct such as:

1. He also relied on subsection (3)(b), which invites a consideration of:

Whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding.

Finally, he places reliance on subsection (c), namely:

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.

1. Dr Freckelton says that this application was without justification and justly failed. The consequence is that further costs have been incurred for his client, and the progress of what was already a very protracted trial has been substantially disrupted. Therefore, says Dr Freckelton, it can be said that in the circumstances, Dr Hooper has conducted the proceeding in a way that unnecessarily disadvantaged the Board. Dr Hooper says that he, as a non-lawyer, representing himself, albeit with some legal guidance and support, was in a difficult position. He believed that the outcome of the directions hearing on 21 December last was unfair to him. Yet, having already been rebuffed once on an interlocutory appeal by the Supreme Court, he felt it was unrealistic for him to seek further appellate relief.
2. I determined that, aside from any other consideration, what took place at the directions hearing, in relation to which an appeal was contemplated but not pursued, could not be relied on in support of an allegation of apprehended bias, in circumstances where, having decided not to appeal, Dr Hooper allowed the substantive hearing to proceed for some 13 sitting days before seeking to place reliance on that issue of 21 December. He also noted that in the ruling that I gave I conceded that the line of cross-examination which he wished to pursue and the presiding member declined to allow him to do was, arguably, a valid line of cross-examination that might ultimately be approved by an Appeal Court.
3. I determined that to attempt to obtain an adjudication on that point under the guise of mounting a bias application was a misuse of Section 108(4), Victorian Civil and Administrative Tribunal Act, and I dismissed the major thrust of his application on that ground. With some hesitation, I believe that, in the circumstances described, that the Board has been unnecessarily disadvantaged by the manner of bringing this application since I have concluded that there was a fundamental misconception in this application. Using a relatively narrow bias issue, which can be raised under the anomalous provisions under Section 108(4) in a sort of internal appeal, as a more general opportunity for judicial review, this is an application that could not have succeeded and was therefore misconceived.
4. Accordingly, it was a process to which the applicant should not have been subjected, and therefore the costs thrown away by the making of this application and to the adjournment of a substantive hearing should be paid by Dr Hooper, and there should be assessed by the Costs Court in accordance with the County Court's scale in default of agreement.