7. Any application by a party for costs shall be filed by 23 August 2010.

1. The principal registrar shall fax this Order to the Applicant at 5981 9504 in addition to despatching the Order in the usual way.

1. On 14 and 15 July 2010 I heard the applications which were listed in paragraphs 1 and 2 of the Orders made by the Tribunal on 2 June 2010, namely the Applicant's application for reinstatement and the Respondents' applications under section 78 of the VCAT Act for the dismissal of the Applicant's claim and for an order on the First Respondent's Counterclaim, and the questions set out in sub paragraphs 1 (a) - (c) and 2 (a) - (c) of that Order.
2. The Applicant's application for reinstatement is made because the proceeding has been struck out by operation of Orders made on 28 April 2010, and is supported by an Affidavit of Bruno Strangio sworn 1 June 2010.
3. The Order made on 2 June 2010 required the Applicant to file any further Affidavit in support of the application by 21 June 2010, any Affidavit in reply to the Respondents' affidavits by 5 July 2010, and an outline of argument by 10 July 2010.
4. The Applicant did not file any further Affidavit or outline of argument.
5. Leaving aside formal parts, Mr Strangio's Affidavit comprises two paragraphs:

"2. I seek to have the Applicant's proceeding reinstated on the basis that the Respondents are seeking to prosecute their Counterclaim for relief against the Applicant even though this proceeding was previously struck out by reason of the self-executing Order" (that is, the Order of 28 April 2010), and

"3. I refer to and rely upon each of my previous affidavits filed in this proceeding in support of my application for reinstatement. I repeat that all of the alleged arrears of rent were previously paid to the respondents and the Applicant has not received any refunds of rental moneys and has not authorised any other person to receive any such moneys on behalf of the Applicant".

1. The "alleged arrears of rent" are the sums which the Applicant undertook to pay to the First Respondent, recorded in paragraph 1 of the Order made 29 March 2010. Those arrears included the sum of $3,300.00 which by consent the Applicant was ordered to pay, in paragraph 2 of the Order made 28 April 2010.
2. Paragraph 2 of Mr Strangio's Affidavit is a submission rather than evidence. Drawing it out a little, the Applicant suggests that the Respondents cannot prosecute their Counterclaim because the proceeding has been struck out; and that if the case is reinstated so that the Respondents are in a position to prosecute their Counterclaim then the Applicant's claim would also be reinstated.
3. Paragraph 3 of the Affidavit is a narrow assertion of fact: that arrears of rent have been paid to the First Respondent. The second part of the paragraph, "the Applicant has not received any refunds of rental moneys and has not authorised any other person to receive any such moneys" alludes to the submission that its solicitors Starnet Legal were not authorised to receive money paid to the Applicant.
4. The application for reinstatement, then, was put on a very narrow basis. The Order made 2 June 2010 teased out the application by identifying these questions:
   • (a) whether by virtue of paragraph 2 of the Order made 28 April 2010 both claim and counterclaim have been struck out,
   • (b) whether the Applicant's claim should be reinstated, and also the counterclaim if it has been struck out, and
   • (c) whether the applicant's claim must be reinstated before the Tribunal has jurisdiction to consider the Respondents' applications under section 78.
5. Mr Strangio represented the Applicant on 14 and 15 July 2010.
6. I pause to dispose of one argument at the outset. Paragraph 1 of the Order made 2 June 2010 said that the application for reinstatement was fixed for 14 July 2010 "at which the Tribunal will hear and determine" the three questions above. Paragraph 2 said that the Respondents' applications were fixed for 15 July 2010 and again used the words "at which the Tribunal will hear and determine" issues. Towards the end of the hearing on 15 July 2010, after the Respondents' submissions on their applications under section 78 of the VCAT Act had concluded and Mr Strangio had made several points in reply on behalf of the Applicant, Mr Strangio submitted that the Order made 2 June 2010 required that there be a determination of the Applicant's reinstatement application before there could be any argument on the Respondents' applications under section 78 of the VCAT Act, and on that basis sought an adjournment of the section 78 application. I refused the adjournment application.
7. In the course of applying for the adjournment, Mr Strangio said that the Applicant had retained lawyers to prepare written submissions in opposition to the section 78 application. I invited Mr Strangio to have those submissions faxed to the Tribunal so they could be considered - even though this would have been an indulgence to the Applicant having regard to paragraph 5 of the Order made 2 June 2010. Mr Strangio declined to do so, saying that if I granted an adjournment, he was "pretty sure" the Applicant's lawyers would attend.
8. The Order of 2 June 2010 simply did not have the meaning contended for by Mr Strangio. The parties' applications are interwined and it would make no sense at all to defer consideration of the Respondents' applications until the Applicant's application was determined. The Order simply recognises one of the Applicant's submissions, that unless the proceeding is reinstated an Order cannot be made in favour of the Respondents under section 78(2)(a). In any event, at the foot of the Order are the words, "Note: the member hearing this matter on 14 and 15 July 2010 may at their discretion, alter the sequence of hearing the applications or questions to be determined".
9. The Respondents' applications are made under section 78 of the Victorian Civil & Administrative Tribunal Act 1998 which states:

(1) This section applies if the Tribunal believes that a party to a proceeding is conducting the proceeding in a way that unnecessarily disadvantages another party to the proceeding by conduct such as -

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

(b) failing to comply with this Act, the regulations, the rules or an enabling enactment; or

(c) asking for an adjournment as a result of (a) or (b); or

(e) attempting to deceive another party or the Tribunal; or

(g) failing to attend mediation or the hearing of the proceeding.

(a) order that the proceeding be dismissed or struck out, if the party causing the disadvantage is the applicant; or

(b) if the party causing the disadvantage is not the applicant -

(i) determine the proceeding in favour of the applicant and make any appropriate orders; or

(ii) order that the party causing the disadvantage be struck out of the proceeding;

1. Paragraph 2(c) of the Order made 2 June 2010 identified an application by the Respondents, that if its applications under section 78 were unsuccessful and the proceeding continued, that Mr Strangio not be permitted to represent the Applicant.

First issue: whether by virtue of paragraph 2 of the Order made 28 April 2010 both claim and counterclaim have been struck out

1. The Applicant's claim, but not the First Respondent's Counterclaim, has been struck out.
2. Paragraphs 1 and 2 of the Order made 28 April 2010 provided that in default of the Applicant taking specified steps by due dates, the proceeding would be struck out. The deadlines for performance were 4.00pm on 5 May 2010 under paragraph 1, and 4.00pm on 12 May 2010 under paragraph 2. The Applicant failed to comply with either paragraph.
3. The First Respondent did not file its Counterclaim until 6 May 2010. Accordingly, when the Order was made on 28 April 2010 the words "the proceeding be struck out" referred, and could only refer, to the Applicant's claim.
4. If it were necessary to do so, because the Counterclaim had inadvertently been struck out by the Order of 28 April 2010, I would not hesitate to reinstate the Counterclaim. This is so because the proceeding was struck out by the Applicant's non compliance with an Order. There could be no reason to strike out the Counterclaim where the First Respondent had not defaulted.

Second issue: whether the Applicant's claim should be reinstated

1. The claim has been struck out as a result of the Applicant having defaulted under Orders, and the Applicant has the task of showing why its claim should be reinstated.
2. The application for reinstatement raises issues of the reasons for the defaults, the prejudice suffered by the Respondents and whether that prejudice can be remedied by an award of costs, and the merits of the case.
3. As I said above, Mr Strangio's Affidavit sworn 1 June 2010 puts the application on very narrow grounds. He does not depose to the reasons for the defaults, save for asserting in relation to one of them that Starnet Legal was not authorised to receive money paid to the Applicant. He does not address in his Affidavit the issues of prejudice or the merits.
4. It is appropriate to set out the manner in which the Applicant's claim came to be struck out.
5. The proceeding in VCAT was commenced on 29 September 2009, by Starnet Legal solicitors on behalf of the Applicant. In substance the initiating Application brought to the Tribunal the application for an injunction which had been filed in the Supreme Court on 28 September 2009, as proceeding 9239/2009. Mr Strangio had sworn two Affidvits in that proceeding on 26 September 2009, and in paragraph 4 of the former he deposed to an agreement for lease between the Applicant and the First Respondent having been made in discussions over the telephone in April 2009. The Supreme Court had granted the Applicant an interim injunction the effect of which was to enable the Applicant to remain in occupation of a shop at the Chadstone Homemaker Centre. As the Applicant has possession, delay in the proceeding is to its advantage.
6. The Tribunal listed the proceeding for a hearing in relation to the injunction on 29 September 2009. At that hearing the Applicant was represented by Mr Boden solicitor, of Starnet Legal. Orders were made by consent, including at paragraph 2 the continuation of the injunction and the Applicant's giving of the usual undertaking as to damages. A timetable was set for the exchange of Affidavits and the matter was listed for hearing on 17 December 2009, with an estimated hearing duration of 2 days.
7. The parties failed to comply with the timetable, and a Directions Hearing was conducted on 9 November 2009. The Applicant was represented by Mr Boden solicitor, of Starnet Legal. The dates for the service of Affidavits were extended. The hearing date of 17 December 2009 was confirmed.
8. On 16 November 2009 the Respondents filed an Affidavit of Domenic Sciglitano sworn 16 November 2009, pursuant to the adjusted timetable. Mr Sciglitano denied that an agreement for lease had been entered into.
9. Shortly before the scheduled hearing date of 17 December 2009 the Applicant applied for an adjournment, and this led to a second Directions Hearing being conducted on 15 December 2009. The Applicant was represented by Counsel. The hearing date was cancelled and a new date of 29 March 2010 was scheduled, with a revised estimated hearing duration of 4 days. Orders were made for the exchange of pleadings. The proceeding was referred to a Compulsory Conference on 21 January 2010, and leave was granted to the parties to be represented by professional advocates at that Conference. The Applicant was given until 29 January 2010 to file any application to join other parties.
10. On 17 December 2009 the Applicant's Points of Claim were filed, pursuant to the Order made 15 December 2009. It was signed by Counsel and filed by Starnet Legal. The document only pleaded claims against the original Respondents.
11. In paragraph 5 of the Points of Claim the Applicant alleged that an agreement for lease had been made between the Applicant and the First Respondent, which was partly oral and partly implied. It pleaded that to the extent it was oral "it consists of a telephone conversation between Mr Bruno Strangio, on behalf of the Applicant, and the second Respondent, as agent of the first Respondent in or about the first week of April 2009". In paragraph 6 of the Points of Claim the Applicant alleged that in that same telephone discussion certain terms were expressly agreed, or alternatively representations made. Thus the alleged telephone conversation is central to the Applicant's claim.
12. At the Compulsory Conference on 21 January 2010 Mr Strangio represented the Applicant. Paragraph 7 of the Order made that day required Mr Strangio to disclose to the Respondents, by 28 January 2010, the location of the telephone or telephones on which were conducted the conversations in April 2009 referred to in Mr Strangio's Affidavit of 26 September 2009. Mr Strangio did not do so by 28 January 2010.
13. The Applicant did not file witness statements as required by the Order of 15 December 2009 either.
14. The hearing on 29 March 2010 took place before me. It was intended to be the trial of the proceeding. However late on 25 March 2010 Starnet Legal had faxed to the Tribunal a notice of ceasing to act. Despite that notice, at the hearing a solicitor from Starnet Legal appeared for the Applicant, and applied for an adjournment.
15. The Respondents opposed the adjournment application.
16. The solicitor from Starnet Legal said that one of the grounds for the adjournment application was that the Police had seized documents belonging to the Applicant, including a diary and Starnet Legal's own files which it had delivered to the Applicant without retaining copies. The diary had not been discovered by the Applicant in its List of Documents. It also emerged that, despite filing its notice of ceasing to act on 25 March 2010, Starnet Legal maintained that it had withdrawn as solicitors prior to the Compulsory Conference on 21 January 2010. Mr Strangio then rose and said that, as "managing agent" for the Applicant, he had no idea Starnet Legal had withdrawn from the matter until that morning. However he also said that he had obtained Starnet Legal's files before the Police seized his documents, because he had decided to look for new lawyers.
17. It is difficult at best to reconcile Mr Strangio's statements that he had obtained Starnet Legal's files but believed until the morning of 29 March 2010 that they would represent the Applicant at the hearing. The Respondents sought orders which would require Starnet Legal to disclose the periods in 2010 during which it acted for the Applicant, and whether it had delivered its files to the Applicant or Mr Strangio.
18. Mr Strangio explained that in another VCAT proceeding the Applicant had filed an application for orders which would compel the Police to make the seized documents available, and that the application would be heard on 4 April 2010. I made Orders on 29 March 2010 which adjourned the hearing; recorded in paragraph 2 the undertaking by Starnet Legal to provide certain information to the Respondents, and recorded in paragraph 1 the undertaking of the Applicant to pay to the First Respondent the money and rent described in paragraphs 1(a) and (b) thereof respectively, as security for the undertaking as to damages that it had given to the Tribunal on 29 September 2009.
19. In paragraph 1 of the orders on the second page of my Orders of 29 March 2010, I ordered that any application to permit Mr Strangio to represent the Applicant in the proceeding be filed by 12 April 2010, failing which he would be precluded from representing the Applicant. No such application was filed.
20. In paragraph 2 of the orders on the second page of my Orders of 29 March 2010, I extended to 12 April 2010 the time within which Mr Strangio was to comply with the order of 21 January 2010, to disclose to the Respondents the location of the telephone or telephones on which were conducted the conversations in April 2009 referred to in Mr Strangio's Affidavit of 26 September 2009.
21. On 8 April 2010 Her Honour Judge Harbison made orders granting the Applicant's application for disclosure of documents by the Police. Paragraph 7 of Her Honour's Order confirmed my Orders of 29 March 2010. Mr Strangio represented the Applicant before Her Honour.
22. On 14 April 2010 the Respondents sought a compliance hearing, on the basis that Mr Strangio had not disclosed to the Respondents the location of the telephone or telephones. The compliance hearing was listed before me on 28 April 2010. The Respondents also served a summons to witness upon Mr Boden to attend that hearing.
23. As no application to permit Mr Strangio to represent the Applicant in the proceeding had been filed by 12 April 2010 (or at all), Mr Strangio was precluded from representing the Applicant on 28 April 2010. Nevertheless he was permitted to address the Tribunal in relation to paragraph 2 of the Orders of 29 March 2010.
24. In paragraph B of the Order made 28 April 2010, I noted that Mr Strangio had not disclosed to the Respondents the location of the telephone or telephones, in breach of the Orders made 21 January 2010 and 29 March 2010, and in paragraph 1 of the Order I extended to the time for compliance to 4.00pm on 5 May 2010 and ordered that in default the proceeding be struck out.
25. On 5 May 2010 Mr Strangio faxed a document to the Tribunal in purported compliance with this Order. The document said,

"As per the orders off 29 march 2010 and 28 april 2010. as I said on both occassion I will say to my best, but will not commit myself to accurassey. Between 1 april 2009 and 15 april 2009 mrs hatch hilmi rang from a black tel which they was 3 black tel in the shop. Plus 2 mobile tel. I am not sure which one mrs hatch hilmi rang on but she rang from either the shop tel or her mobile tel which mrs hatch hilmi rang domenic from banchi lodge pty ltd. (signed) bruno strangio".

1. This document has been placed on the VCAT file and it seems that the Registry staff have taken it to be in compliance with the Order made 28 April 2010. In fact, it is not and the Applicant did not comply with paragraph 1 of the Order.
2. In paragraph 4 of his Affidavit sworn 26 September 2009 Mr Strangio deposed: "The agreement for lease was reached during discussions between the plaintiff (ie, Ilford Pty Ltd) and the second defendant (ie Domenic Sciglitano) in April 2009 at about the time at which the plaintiff purchased the business. The discussions were oral and occurred over the telephone and were witnessed by the previous tenants from whom the plaintiff purchased the business".
3. Mrs Hatch Hilmi is not an officer servant or agent of Ilford Pty Ltd; she is associated with the "previous tenants". The clear implication in paragraph 4 of Mr Strangio's Affidavit is that Mr Strangio participated in the telephone conversation, and this is confirmed in paragraphs 5 and 6 of the Applicant's Points of Claim. Mr Strangio's fax of 5 May 2010 does not disclose details of a telephone used in a discussion between Ilford Pty Ltd and the Second Respondent. The fax simply does not comply with paragraph 1 of the Order made 28 April 2010, and the proceeding was struck out on that basis after 4.00 pm on 5 May 2010.
4. In paragraph 2 of the Order made 28 April 2010 I ordered by consent of the Applicant, that unless by 4.00pm on 12 May 2010 the Applicant complied with the undertaking given to the Tribunal on 29 March 2010 by paying to the First Respondent $3,300.00 the proceeding would be struck out.
5. The Applicant did not pay the First Respondent $3,300.00. In paragraph 2 of the Order made at a directions hearing on 17 May 2010 the Tribunal noted that "by reason of the operation of the Order of the Tribunal on 28 April 2010 this proceeding is struck out, the sum of $3,300.00 not having been paid". I note that despite Mr Strangio being precluded from representing the Applicant under paragraph 1 of the Order of 29 March 2010, Mr Strangio managed to appear on behalf of the Applicant at the directions hearing on 17 May 2010 as its "agent".
6. Should I be incorrect in the view that that the proceeding was struck out after 4.00pm on 5 May 2010, it was certainly struck out after 4.00pm on 12 May 2010. In an application for reinstatement it was encumbent on the Applicant to address the defaults under both paragraphs of the Order made 28 April 2010. It has not done so.
7. Whilst this was not foreshadowed in Mr Strangio's Affidavit of 1 June 2010, at the hearing on 14 July 2010 he argued that the claim could not be struck out for breach of the Order to pay $3,300.00, because as a matter of law the undertaking to pay rent had not been given.
8. Leaving aside the fact that this submission is incorrect in fact, it is rendered irrelevant by the fact that the Applicant defaulted under paragraph 1 of the Order made 28 April 2010, as well as paragraph 2.
9. Nevertheless for the sake of completeness I will deal with the submission.
10. Whilst at the hearing on 28 April 2010 the Applicant was represented by Ms Connie Petrolo, and Mr Strangio was given leave to address the Tribunal only on an issue that concerned him, it was a different matter on 29 March 2010. Ms Rajasekaram solicitor of Starnet Legal appeared on behalf of the Applicant, solely to apply for an adjournment. She said that if the adjournment was refused, her instructions were to withdraw. She took instructions from Mr Strangio during the hearing. I suggested to Ms Rajasekaram that the matter be stood down so that she could speak to the principal of her firm. Mr Strangio then rose and made submissions for the Applicant. He said that he was the "managing agent" for the Applicant, that he had the authority to represent it, and that a letter of authority was on the Tribunal's file. He said he would speak over the solicitor. He made submissions about the events before Judge Harbison on 8 April 2010, in which he had appeared for the Applicant. He said that he had represented the Applicant at the compulsory conference on 21 January 2010 with the Respondents' consent. During submissions by Counsel for the Respondents, Mr Strangio interjected and made objections. He made an application on behalf of the Applicant that I remove myself from the hearing on the ground of bias, which I rejected. Mr Strangio actively participated in the hearing on behalf of the Applicant and in these circumstances, the argument that the Applicant did not give the undertaking recorded in paragraph 1 of the Order made 29 March 2010 is entirely without foundation.
11. Paragraph 2 of the Order made 28 April 2010, which was made by consent of the Applicant which was represented by Ms Petrolo, is perfectly clear. It simply required the payment of $3,300.00 by 4.00pm on 12 May 2010. The payment was not made.
12. The Applicant did not offer to pay the $3,300.00 at the hearing on 14 July 2010.
13. The Applicant has not presented any grounds warranting the reinstatement of its claim, and that application is dismissed.

Third issue: whether the Applicant's claim must be reinstated before the Tribunal has jurisdiction to consider the Respondents' applications under section 78.

1. The Applicant's claim does not have to be reinstated before the Tribunal has jurisdiction to consider the Respondents' applications under section 78.
2. This is so for two reasons.
3. First, the First Respondent's Counterclaim has not been struck out. As I said above, in the Order made 28 April 2010 the words "the proceeding be struck out" only referred to the Applicant's claim.
4. Secondly, the striking out of the Applicant's claim has the effect of taking the claim out of the list of cases to be determined. It does not prevent any step at all being taken in the proceeding. If that were the case, the Order of 2 June 2010 could not have been made. It would be absurd to suggest such a thing.
5. It follows that the Tribunal has jurisdiction to consider the Respondents' applications under section 78.

The Respondents' applications under section 78 of the Victorian Civil & Administrative Tribunal Act 1998

First issue: should the Applicant's claim be dismissed?

1. The Tribunal's task in dealing with the application for dismissal under section 78 is in two parts. The first is to consider whether the Applicant " is conducting the proceeding in a way that unnecessarily disadvantages another party to the proceeding by conduct" of the kind described, non exclusively, in sub sections 78(1)(a) - (g).
2. If so, the second task is to consider whether to make an order under section 78(2)(a) - (c).
3. There is no doubt at all that the Applicant has been conducting the proceeding in a way that unnecessarily disadvantages the Respondents. The injunction has left the Applicant in possession of the First Respondent's shop. Delay is to the advantage of the Applicant.
4. The Applicant has delayed the proceeding. It obtained the adjournment of the hearing listed for 17 December 2009, submitting that it would call seven witnesses and join additional parties. It has not filed witness statements by these witnesses. It has not applied to join additional parties within the time allowed under the Order of 15 December 2009.
5. Having pleaded in paragraph 5 of its Points of Claim that the agreement for lease upon which it bases its claim was comprised of a telephone conversation between Mr Bruno Strangio and the Second Respondent, it failed to comply with the Order of 21 January 2010 to disclose the location of the telephone or telephones on which that discussion took place; or within the extended time for compliance under the Order of 29 March 2010. When Mr Strangio purported to comply with the order for disclosure, on the last day for doing so under the Order of 28 April 2010, he failed to supply the information required by the Order.
6. The Applicant applied for the adjournment of the trial on 29 March 2010 on the basis, amongst others, that the Police had seized a diary which contained important evidence. The diary had not even been discovered.
7. The Applicant's conduct as described above has disadvantaged the Respondents. It has delayed the progress of the proceeding in circumstances where delay advantages the Applicant. It has caused the Respondents to incur additional costs.
8. Remarkably, the Applicant has not paid rent to the First Respondent, despite the undertaking of 29 March 2010 and the Order of 28 April 2010. Even in the context of seeking reinstatement of its claim, the Applicant did not offer to make those payments.
9. The manner in which the Applicant, through Mr Strangio, conducted itself during the hearing on 14 and 15 July 2010 disadvantaged the Respondents.
10. Mr Strangio represented the Applicant at the hearing pursuant to leave granted by paragraph 7 of the Order made 2 June 2010. That paragraph records that leave was granted "having regard to the certificate of authority from the Applicant", which is contained in a document dated 31 May 2010 on the letterhead of the Applicant signed by Teresa Dinc as director, in these terms:

" I, Teresa Dinc of Ilford Tower Pty Ltd hereby authorise Mr Bruno Strangio to represent and run the proceedings on the 1st of June 2010 and do whatever is required to be heard and give instructions and commit the company and settle any matters that is necessary. Mr Bruno Strangio is authorised to represent the company with my authority".

1. Mr Strangio is an undischarged bankrupt. Pursuant to section 206B(3) of the Corporations Act 2001 he is disqualified from managing a corporation.
2. During the hearing I drew to Mr Strangio's attention my concern that the authority signed by Ms Dinc was so wide in scope as to make Mr Strangio a director of the Applicant, within part (b) (ii) of the definition of that word in section 9 of the Corporations Act. I did so in order to give Mr Strangio the opportunity to make submissions on that question. He did not do so.
3. Mr Strangio's status as undischarged bankrupt is significant in this proceeding. The Applicant has given both the Supreme Court and this Tribunal an undertaking as to damages but there is no evidence before the Tribunal to show that the Applicant could pay under that undertaking. The formal director, Ms Dinc, has never attended a hearing in this proceeding, and has been described as a person who does not understand the proceeding. When Ms Petrolo appeared, she disclosed that she was not an officer, shareholder or employee of the Applicant. It would be an appalling state of affairs if an undischarged bankrupt was able to hide behind the veil of an impecunious company.
4. In Court proceedings, Rules of procedure require a company be represented by a legal practitioner. Legal practitioners are officers of, and have duties to, the Court. VCAT has no equivalent rule. In this case the Applicant's representative Mr Strangio has demonstrated he does not consider himself to have duties to the Tribunal and that the Applicant seeks to conduct this proceeding vexatiously and to cause an adjournment unnecessarily for tactical advantage.
5. I record the following aspects of the Applicant's conduct of the hearing on 14 and 15 July 2010, by its representative Mr Strangio which were abuses of process calculated to frustrate the determination of the proceeding:

• Failing to file an outline of argument as required by paragraph 6 of the Order made 2 June 2010.
• Filing two summonses to witness at 4.11pm on 8 July 2010 to Ms Nicola Saraceno and the Second Respondent respectively, calling for the production of "all business records and mobile phone records (of the respondents)" from 1 April 2009 to 30 June 2010.
• Filing on 12 July 2010 a purported application for directions, to be heard on 14 July 2010, seeking to join 4 further respondents. The application form itself makes clear to a person using the form, that an application for joinder must be accompanied by an affidavit in support and draft Points of Claim against the new parties; none were filed. The time for making such an application had been set in the Order made 15 December 2009, and has long expired.
• Filing a summons to witness at 4.02pm on 12 July 2010 to the Applicant's former solicitor Mr Kumani Boden, and purporting to serve it by facsimile transmission.
• Filing a summons to witness at 4.04pm on 12 July 2010 to Mr Paul Welling, solicitor of Clayton Utz, calling for the production of that firm's practicing certificate details under the Legal Profession Act 2004, the retainer agreement between the firm and the Respondents, written evidence of the firm's authority to act for the Respondents and written evidence of Mr Welling's authority to act for the Respondents.
• Filing a summons to witness at 4.06pm on 12 July 2010 to Mr Vince Anneta, a solicitor and partner in Clayton Utz, calling for - amongst other things - the Clayton Utz partnership agreement.

• Challenging the right of the Respondents to be represented by Clayton Utz and by Counsel at the hearing. I dismissed that application.
• Alleging that the Applicant's former solicitors, Starnet Legal, was a deregistered company which had breached the Legal Profession Act 2004. I note that paragraph 4 of the Order made 2 June 2010 had required the parties to file any further affidavits upon which they sought to rely by 21 June 2010, and that the Applicant had not filed an affidavit in relation to these allegations.
• Without prior notice, orally applying to join Mr Kumani Boden as a Respondent, in the absence of any affidavit in support or draft pleading.
• Applying for the arrest of Mr Kumani Boden.
• In describing the manner in which Orders were drafted on 28 April 2010 when Ms C Petrolo represented the Applicant and Mr Strangio attended, asserting that Mr Strangio had been coached into the Applicant giving the undertaking set out in that Order, that Mr Strangio agreed to the Order whilst protesting, that the Order should not have provided that in default the proceeding be struck out, and that the Order was procured by conspiracy, theft, defamation and negligence. Mr Strangio said that he knew what the words of the Order meant, and that he agreed with the Tribunal member (myself) but did not agree to the undertaking, so that he did not regard it as the giving of an undertaking. Later when referring to Ms Petrolo representing the Applicant at the hearing on 28 April 2010, Mr Strangio said that the Tribunal (myself) made misrepresentations and misled and induced her into giving the undertaking, which was a breach of natural justice, and that in fact Ms Petrolo gave an undertaking that was subject to conditions which were not reflected in the transcript of the hearing which was therefore itself suspect.
• Asserting on numerous occasions that Mr Strangio is not bankrupt, despite the overwhelming evidence to the contrary. This persistent denial of an obvious fact is most unusual and reflects a willingness on Mr Strangio's part to say anything that he perceives will advance the interests of the Applicant.
• Asserting that a subpoena to Starnet Legal had been drafted, but not issued, some 6 weeks before the hearing but that it had been pointless to issue the subpoena before 12 July 2010 because Mr Boden and Starnet Legal were uncontactable in that period, when on 4 June 2010 Starnet Legal had issued Supreme Court Originating Process no. S CL 2010 03096 for the Applicant. When shown a copy of the Originating Process Mr Strangio admitted that this "looked bad", but said that Starnet Legal must have acted as agent for the Applicant's new solicitor Rebab Associates. Mr Strangio also said that when swearing his Affidavit in that proceeding, he had not noticed that the first page identified the Applicant's solicitors as Starnet Legal.
• At the beginning of the hearing on 15 July 2010, seeking to call a witness, without having taken an affidavit as required by paragraph 4 of the Order made 2 June 2010 or giving any prior notice of any kind, who would give evidence of eavesdropping on a conversation between the Respondents' solicitor and Counsel. I refused the application to call this witness. Mr Strangio then called on me to withdraw from the case on the grounds of bias. I refused that application.
• Seeking to disclose the contents of without prejudice communications between the parties when I had directed that this not be done, which was a patent attempt to create a basis for an application that I disqualify myself from further hearing the matter.

1. Finally, Mr Strangio made a telling comment whilst interjecting during a submission by the Respondents' Counsel that, if the case proceeds, the Applicant be restrained from being represented by Mr Strangio. The submission was that Mr Strangio had misled the Tribunal in order to create delay. Mr Strangio's interjection was to the effect that the Respondents would "have to put up with it". If any further evidence was needed that the Applicant has and intends to continue to abuse the processes of this Tribunal in order to create delay and remain in possession of the shop, Mr Strangio ably provided it.
2. In these circumstances section 78(2) is enlivened.
3. It is appropriate that the Applicant's claim be dismissed.
4. The Applicant's Points of Claim show that the Applicant's case rests on an alleged telephone discussion between Mr Strangio and the Second Respondent. The Applicant has the burden of proof. Mr Sciglitano's Affidavit sworn 16 November 2009 contains detailed denials of the Applicant's allegations. Mr Strangio has no credibility whatsoever. Without repeating points I have made above, Mr Strangio's denial of being an undischarged bankrupt, in the face of a Federal Magistrates Court sequestration Order and the evidence of Mr Boden of Starnet Legal that he acted for Mr Strangio in that proceeding, is sufficient to establish this. In considering this application under section 78 I am not purporting to determine the proceeding, but I am taking into account the relative strengths of the parties' positions in the light of the material in the case.
5. I conclude that the Applicant is merely seeking to delay the proceeding in order to remain in possession of the shop.

Second issue: should the First Respondent's Counterclaim be determined in its favour?

1. It is appropriate that the First Respondent's Counterclaim be determined in its favour.
2. There is no middle ground between the claim and Counterclaim. The dismissal of the Applicant's claim for orders which would give the Applicant possession of the shop and damages for the alleged interference with its rights, leads inevitably to the dismissal of any defence that the Applicant may seek to make to the First Respondent's Counterclaim for possession of the shop.

Third issue: if the claim or counterclaim in the proceeding continues, should the Applicant be permitted to be represented by Mr Strangio?

1. It remains necessary to answer this question because the dismissal of the Applicant's claim and the determination of the Counterclaim in favour of the First Respondent leaves open the possibility that an application for costs will be made. The proceeding may continue for that purpose.
2. Mr Strangio's conduct shows that he is not fit to represent the Applicant before this Tribunal. The Applicant is not to be permitted to be represented by Mr Bruno Strangio.

1. I will make Orders to give effect to these Reasons.
2. The Applicant's application for reinstatement of its claim will be dismissed, and the First Respondent's Counterclaim will be determined in its favour. Accordingly the Applicant shall be ordered to deliver up possession of the premises situated at and known as Shop 17, 2107 - 2125 Princes Highway Clayton Victoria to the First Respondent.
3. Any application by a party for costs shall be filed by 16 August 2010.
4. The Applicant sought a stay on any order in favour of the First Respondent, so that it might appeal. I will grant a stay of 14 days on the order for possession.