1. It is not my usual practice to provide reasons for orders that I make at a directions hearing but this is an unusual case and it is desirable that the parties and the member of the Tribunal who next hears this matter understands the reasons behind the directions I have given and what they were intended to achieve.

2. These two proceedings concern the construction of two units which are said to contain defects, including defects arising from problems with the foundations. The underlying issues are said to be the same in each case, save for the identity of the applicant.

3. The Fourth Respondent ("Vero") is sued in each case as the domestic building insurer. On 29 July 2004, Vero sought and obtained an order from the Tribunal joining as a further respondent to each case (inter alia) the Fifth Respondent Civil and Soil Pty Ltd ("Civil"). Civil is a company through which a soil engineer, Mr Bolwell, conducts his practice. Mr Bolwell was the engineer who provided the soil report prior to the construction of the two units.

4. In the affidavit seeking joinder, the deponent swears that Vero believes Civil to be responsible in whole or in part for the Applicants' losses. In support of this belief he refers to a report of one Russell Brown which, according to the affidavit, "...indicates a number of deficiencies with the soil report relevant to the damage claimed." Mr Brown's report, the soil report and copies of the proposed Points of Claim were exhibited to the affidavit. On the faith of this material the Tribunal made an order joining Civil as Fifth Respondent.

5. On 5 September 2004 Mr Bolwell wrote to the Tribunal asking that Civil be "struck from the proceedings" (sic.) at a directions hearing "to be called immediately". He states that the grounds of the application are the matters raised in his Points of Defence which are set out in the same document.

6. The Sixth Respondent, who was the building surveyor, initially made a similar application but it has been withdrawn.

7. Pursuant to the request, it seems, of the Sixth Respondent, both proceedings were listed for directions before me at 10 o'clock on 14 September. There were other outstanding matters to be dealt with and all parties apart from the First and Second Respondent were represented at the hearing. Altogether, there were seven parties in attendance, being Mr Bolwell, Counsel for Vero, Mr Andrew, and solicitors for five other parties.

8. I was handed some draft directions to which those present, apart from Mr Bolwell, agreed, extending time for the Sixth Respondent to attend to certain interlocutory steps. I was then informed by Mr Andrew that there remained the application by Mr Bolwell in regard to Civil being struck from the proceedings. I indicated that the other parties need not remain, apart from Mr Andrew, Mr Bolwell and Mr Guthrie, the solicitor for the Seventh Respondent who had been joined at the request of the Fifth Respondent. All of the solicitors for the other parties nonetheless remained at the bar table and I proceeded to hear Mr Bolwell's application.

9. The application brought by Mr Bolwell was, to use his words, for Civil to be "struck from the proceedings". He did not identify in his application any particular section of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act") that he relied upon, nor did he articulate his claim in accordance with legal principles. Nevertheless, this Tribunal is intended to be accessible to unrepresented persons. I do not believe that Parliament intended that such persons should be required, as a pre-condition of accessing the Tribunal and its remedies, to prepare formal pleadings to articulate what they want according to legal forms and practices, apart from those specifically required by the Act or the rules. What is required is that the relief they seek must be clearly set out in sufficient detail to give the party against whom such relief is sought full and fair notice of the case that has to be met. It is for the Tribunal to determine whether the claim has any legal basis and whether the relief sought can, as a matter of law and on the proven facts, be granted.

10. An application for summary determination by a Respondent is made pursuant to s.75 of the Act. That section is in the following terms:

"75. Summary dismissal of unjustified proceedings

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

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

(2) If the Tribunal makes an order under sub-section (1), it may order the applicant to pay any other party an amount to compensate that party for any costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding.

(3) The Tribunal's power to make an order under sub-section (1) or (2) is exercisable by--

(a) the Tribunal as constituted for the proceeding; or

(4) An order under sub-section (1) or (2) may be made on the application of a party or on the Tribunal's own initiative.

(5) For the purposes of this Act, the question whether or not an application is frivolous, vexatious, misconceived or lacking in substance or is otherwise an abuse of process is a question of law"

11. Considerable guidance as to the application of this section is to be found in the Tribunal's decision of Norman v Australian Red Cross Society (1998) 14 VAR 243 where, after considering the decision of the Court of Appeal in State Electricity Commission v Rabel [1998] 1 VR 102, the learned Deputy President set out the relevant principles as follows:

"(a)The application is for the summary termination of the proceedings. It is not the full hearing of the proceeding.

(b) The Tribunal may deal with the application on the pleadings or submissions alone, or by allowing the parties to put forward affidavit material or oral evidence. The Tribunal's procedure is in its discretion and will depend on the circumstances of the particular case.

(c) If the Complainant indicates to the Tribunal that the whole of his or her case is contained in the material placed before the Tribunal, the Tribunal is entitled to determine whether the complaint lacks substance by asking whether, on all the material placed before it, there is a question of real substance to go to a full hearing. However, if a Complainant indicates to the Tribunal that there is other evidence that he or she can call to support the claim and the Tribunal, on the application, does not permit that evidence to be called, then the Tribunal cannot determine the application on the basis that the Complainant's material contains the whole of his or her case.

(d) An application to strike out a complaint is similar to an application to the Supreme Court for summary dismissal of civil proceedings under RSC r23.01 (see also commentary on this rule Williams, Civil Procedure Victoria). Both applications are designed to prevent abuses of process. However, it is a serious matter for a Tribunal, in interlocutory proceedings which would generally not involve the hearing of oral evidence, to deprive a litigant of his or her chance to have a claim heard in the ordinary course.

(e) The Tribunal should exercise caution before summarily terminating a proceeding. It should only do so if the proceeding is obviously hopeless, obviously unsustainable in fact or in law, or on no reasonable view can justify relief, or is bound to fail. This will include, but is not limited to a case where a complainant can be said to disclose no reasonable cause of action, or where a Respondent can show a good defence sufficient to warrant the summary termination of the proceeding.

(f) On an application to terminate a complaint summarily, the Tribunal must clearly distinguish between the complaint itself and the evidence which is to be given in support of it. A complaint cannot be struck out as lacking in substance because it does not itself contain the evidence which supports the claims.

(g) The test for determining whether a complaint is frivolous, vexatious, misconceived or lacking in substance is different from that applied in other Australian Anti-Discrimination jurisdictions where the legislative context is different from Victoria. It is similar to that applied by the Supreme Court in civil proceedings for the purposes of RSC r23.01.

(h) The Tribunal should not apply technical, artificial or mechanical rules in construing a complaint or coming to a view about the case a Complainant wishes to advance."

The Court of Appeal's decision in Rabel from which these principles were derived concerned the power of the Equal Opportunity Board to strike out proceedings pursuant to s.44C(1) of the Equal Opportunity Act 1984. However the learned Deputy President considered them to be equally applicable to an application under s. 75 of the Act and I respectfully agree. Indeed they have been applied in numerous such cases since (see also Pizer "Annotated VCAT Act" 2nd Ed. para 3174 et seq.).

12. Mr Bolwell went through his Points of Defence, two editions of the Australian Standards, his original report and Mr Brown's report.

13. Mr Brown has prepared two reports, the first of which is dated 2 September 2003 and the second dated 9 July 2004. I was taken by Mr Bolwell to page 9 of Mr Brown's report where he acknowledges that he has not seen the soil test Mr Bolwell carried out. I was also taken to the last page of the report where Mr Brown says:

"...it would appear that the initial testing and investigation of the site has understated (1) the degree of ground re-activity, and (2) the overall affects of normal moisture conditions, which is more than amply covered by Australian Standard 2870.1966, clause 1.3.3 and as a consequence clause 2.4.4."

14. Since Mr Brown acknowledged not having seen the soil report the basis of this conclusion is unclear but in any event, as Mr Bolwell was at pains to out in his submission, the reference to Australian Standard 2870.1966, should be Australian Standard 2870.1996 and that even allowing for this as a typographical error, that standard was not in force at the time that he prepared his report.

15. Mr Bolwell took me to the relevant Australian Standard at the time the report was prepared which does not require abnormal moisture conditions to be taken into account in classifying the site, unlike the more recent standard AS2870.1996 which is in different terms.

16. I was also referred to relevant paragraph in the Points of Claim by Vero against Civil articulating the claim that is made against it. The claim is founded in contract and tort and particulars of the breach of duty alleged are to be found in paragraph 13, as follows:

"In the expert opinion of Russell Brown the soil report fails to properly address key issues concerning moisture and the presence of large trees. A copy of Mr Brown's expert report is in the possession of the solicitors for the Fourth Respondent and may be inspected by prior appointment."

Considering the date of this document, it would seem that the report referred to is that in which Mr Brown acknowledged not having seen Civil's soil report that is said to have failed to address the issues referred to.

17. The hearing of Mr Bolwell's submission took a considerable amount of time. When he had finished I asked Mr Andrew what the claim against Civil was in view of what Mr Bolwell had said. Mr Andrew then objected to the form of the application and said that an Affidavit ought to be sworn and filed in support of it. I asked him whether he needed to obtain instructions but he acknowledged he had instructions to meet the application.

18. If a respondent to an application wishes to take objection that the application is not in proper form or that an affidavit in support of it should be filed and served before it is considered, he ought to take that position before the application is heard, not two thirds of the way through the hearing. Representatives of five parties had sat patiently at the bar table for a considerable period while Mr Bolwell presented his submission and it was only after Mr Andrew had heard Mr Bolwell's case that he raised any objection to the form of the material.

19. I refused Mr Andrew's request that I require Mr Bolwell to file any more formal application than he had, or file an affidavit. There are no formal requirements for such an application in either the Act or the Rules. The only factual material upon which the application was based were the two Australian Standards, the original soil report and Mr Browns' reports, none of which were contentious. Indeed, the reports were the basis of Vero's case against Civil. Nonetheless, Mr Andrew persisted that an affidavit should be filed. Mr irritation at the position adopted by Mr Andrew was apparent and he commented on it.

20. I thereupon directed Mr Bolwell to enter the witness box in order to prove on oath the documents upon which he had made his submission. These were Australian Standard AS2870-1988, the Supplement to Australian Standard AS2870-1988, Australian Standard AS2870-1996, the Supplement to AS2870-1996 and Civil's Soil Report.

21. I informed Mr Andrew that I did not propose to direct Mr Bolwell to file any more formal application than his letter of 5 September which stood as his Points of Defence which clearly set out what his submission was. Mr Bolwell had made his submission in accordance with this document and had given sworn evidence formally proving the documents upon which it was based. I add that these were documents which should sensibly, by their nature, have been admitted.

22. Following Mr Bolwell's proof of these documents Mr Andrew asked me twice on whose behalf I had called him and I told him on each occasion that I had called him of my own motion. I asked Mr Andrew whether there was any indication in the later report that Mr Brown had read the soil report upon which the claim against Civil was based. He said that Mr Brown might well have read the report. A brief glance at the second report, which is all that I have had, discloses a list of new documents that he has seen since his earlier report. Mr Bolwell's report does not appear on that list, so that it would seem that even by the time of his second report he had not seen it. I was not however aware of this at the time of the directions hearing.

23. I asked Mr Andrew why the proceeding against the Fifth Respondent should not be struck out if, as it appeared, the criticism by Mr Brown was based on the wrong standard and apparently without having read the report that he was criticizing. Mr Andrew thereupon made a number of submissions relating to the significance of litigation, that it was inappropriate to dispose of it in such a summary way when the case depended upon factual matters which would have to be decided at the hearing. He suggested that if Mr Bolwell had a difficulty with Mr Brown's report he could put in his own report. It seemed to me, as I pointed out to Mr Andrew, that what he was asking Mr Bolwell to do was to prepare a report not as to the subject premises but rather, as to the quality of Mr Brown's report.

24. After hearing Mr Andrew's submissions I determined that I should give the Fourth Respondent an opportunity to put its house in order by providing proper particulars to paragraph 13 of the Points of Claim in each application. Since it did not appear to me that the claim, if there is one, has been properly particularized at this stage I stayed the proceedings as against the Fifth and, consequently, the Seventh Respondents until such time as the particulars were provided.

25. It seemed to me that, unless there was evidence of substance to support the allegation of breach of duty in the preparation of the soil report, the application should be dismissed. It is clear from the particulars in the Points of Claim as they now stand that the only basis for the claim is Mr Brown's report, and it is clear from Mr Brown's report that he never read the original soil report. It was therefore not apparent that there was any evidence available capable of supporting the claim against Civil.

26. Parties are not to be joined to proceedings lightly. Civil was joined to these two applications by the Tribunal on the basis of the affidavit referred to which appeared, on its face, to demonstrate that the case the Fourth Respondent wished to bring against it was arguable. However on closer examination, it seemed to me that there was no basis upon which the Fourth Respondent could bona fide conclude that it had any case at all against Civil. Cases in this list are notorious for the number of parties that are joined, largely for the purpose of taking advantage of provisions such as s.131 of the Building Act 1993. Mr Andrew pointed out, correctly, that it is every Respondent's right to join parties who might share in the responsibility for the Applicant's loss. That is so, but no joinder should take place unless there is a case and here, as things presently stand, it seems to me that there is none.

27. The directions that I gave required the claim to be particularized in detail that is, the facts giving rise to it must be stated. It is not sufficient to simply allege that the report was prepare negligently. The facts establishing that negligence must be particularised and, to answer Civil's application, it must appear that there is evidence that, if accepted at the hearing, would prove those facts. If the case is then to continue against those parties, a further directions hearing can be sought.

28. Civil's application under s.75 is adjourned sine die. If, upon receipt of the particulars ordered Mr Bolwell still considers that there is no arguable case against Civil he may request that it be listed again. However, in due of the comments made during the hearing it is desirable that the application be heard by another member. It will in any event be a fresh hearing since any claim will by then, hopefully, be better articulated.

29. The copies of the Australian Standard that were tendered and received into evidence were, with Mr Andrew's consent, released back to Mr Bolwell on the ground that he needed them for his business. If the strike out application is relisted, these will need to be produced again.