1. The hearing of the proceeding will resume at 2:15pm on Wednesday

10 October 2012 at the William Cooper Justice Centre before Senior Member Smithers.

1. Costs of the application to reconstitute the Tribunal are reserved.

Mr Schorel-Hvlaka, was granted leave to appear for the Respondent

1. These reasons set out the oral reasons given following the hearing on

1. This is an application to reconstitute the Tribunal under s 108(5) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ("the VCAT Act"). Section 108(1) of the VCAT Act provides that at any time during the hearing of a proceeding, a party may apply to the Tribunal requesting that it be reconstituted for the purposes of the proceeding.

1. This morning, such an application was made to Senior Member Smithers by Mr SchorelHvlaka, who described himself as a "professional advocate" and who appeared on behalf of Mr Johnson. Senior Member Smithers dismissed the application for reconstitution.

1. Section 108(4) provides that if the Tribunal rejects an application under

s 108(1) for reconstitution, a party may make a request to the President that the Tribunal be reconstituted. Such an application has now been made in this matter.

1. If a request is made under s 108(4), the President may allow or reject the request for reconstitution with or without allowing the parties to make a written or oral submission. In this instance, I have allowed both written and oral submissions.

1. I now propose to make some brief observations about the nature of the discretion in s 108(5) before turning to the merits of the Respondent's application. On the basis of previous Tribunal decisions, three things may be said about the nature of the power vested in the President under s 108(5). First, it is a discretionary power. Secondly, the discretion is a broad discretion. The VCAT Act does not specify particular criteria to be taken into account, nor does it impose limitations on the exercise of a discretion. Thirdly, the power is designed for a wide range of circumstances.

1. In relation to the last point, Justice Kellam P in Metrospan Developments Pty Ltd v Whitehorse City Council[1] said that the power might be used when a member of the Tribunal becomes ill or retires or their term expires. The discretion must be construed in its statutory context and may be exercised where necessary to ensure that the future conduct of the proceeding complies with the rules of natural justice.

1. I now turn to the merits of the application before me.

1. In the argument that was advanced by Mr SchorelHvlaka in support of Mr Johnson's position, reference was made to the findings and order of Senior Member Smithers dated 24 September 2012. Reference was particularly made to [65] of that decision where Senior Member Smithers held that:[2]

it would be preferable for Mr Johnson to have been represented at the resumption of this hearing. However, no information was put to me which justified the conclusion that the matter should be further adjourned.

1. He also referred to [68] which deals with the reasons of Senior Member Smithers concerning the reconstitution application made under s 108 of the VCAT Act.

1. Reference was also made to [97] of the findings which is to the effect that Mr Johnson would be entitled to recover his legal costs of acting for himself if an order for costs in his favour was made and these were able to be properly quantified.

1. I was provided with a written submission that was presented this morning in this matter which is entitled "Address to Tribunal (for Hearing 5 October 2012)". Following the heading appears the words:

Address made and all supporting documentation supplied under strongest protest of (criminal) duress, bias and natural justice abuses by SM Jonathan Smithers and Michael Keith McGarvie (LSC), Mr Guy Gilbert and others.

1. I have generally looked through and reviewed this submission.

1. In addition to these written documents, reference was made in the course of the submissions on behalf of the Respondent to a number of other suggested deficiencies which it was said Senior Member Smithers had been responsible for.

1. It was contended that Senior Member Smithers had not followed proper legal procedures. It was contended that various comments that were made arising out of family law proceedings should not have been made. It was said that Senior Member Smithers should not rely on the same material from a different angle. It was said that Senior Member Smithers should have granted an adjournment. It was said that Senior Member Smithers should have allowed an adjournment for the purposes of legal aid and that the applicant had been placed in an unfair position. It was said that nothing had been done about an objection to jurisdiction which had been advanced on 3 September of this year. It was said that Senior Member Smithers was biased by not addressing legalities and it was contended that the Tribunal was without jurisdiction.

1. I have taken all of those contentions into account and I am aware, too, of the rights of a party to proceedings in VCAT to go to the Supreme Court for error on a question of law.

1. It was said by Mr Bowles, who appeared on behalf of the Legal Services Commissioner, that an application of this type is not an application in the nature of an appeal from the decisions and rulings of the Senior Member.

1. In Victoria v Bradto Pty Ltd,[3] Judge Bowman VP, refused to disqualify himself for bias. The matter was then referred to Justice Morris P, then the President, who declined to reconstitute the Tribunal pursuant to s 108(5).[4] His Honour made a number of observations with which I agree. They included that:[5]

[21] The crux of the matter is this. Judges must make rulings. Judges must make decisions. When a judge makes a ruling or a decision, more often than not someone will be displeased. In the course of a lengthy proceeding there will often be rulings at an early stage which will not only affect the future course of that proceeding but will be displeasing to one or other of the parties. If one were to take an unduly sensitive approach to the consequences of rulings, it would make the administration of justice impossible. A robust view must be taken. It must be accepted that when a judge makes a ruling during the course of a case, that does not mean that the judge is incapable of fairly and impartially making future rulings, or a final decision, in the case. Certainly I am not satisfied that the circumstances of the present case are such that if I was to refuse to constitute the tribunal this would be very likely to produce the result that there would be a breach of natural justice in the future.

[23] Another matter relied upon was the manner in which Judge Bowman's ruling of 10 November 2005 was expressed. Certainly the reasoning is forceful, as well as being comprehensive. The suggestion was, in effect, that the forceful manner in which the reasons are expressed reinforces the apprehended bias which was the subject matter of the ruling. I do not agree. Judges are entitled to express themselves forcefully. As a senior judge of the Court of Appeal observed in another context "we do not want the law to nurture a nation of ninnies". Those involved in litigation are entitled to make robust and forceful submissions. Equally judges determining matters are entitled to give robust and forceful reasons. The day when colour goes out of the law will be a sad day. The fact that a ruling or judgment is expressed forcefully, even colourfully, is not a basis for concluding that the judge is not impartial or should be apprehended to be biased.

Those observations apply not only to judicial officers but also, in my view, to legally qualified Senior Members of the Tribunal.

1. The position is now that these professional misconduct proceedings are very advanced. By the written determination published on 24 September 2012, Mr Johnson was found guilty of two charges of professional misconduct. The determination by Senior Member Smithers extends over some 108 paragraphs.

1. Following publication of this determination, Senior Member Smithers has allowed Mr Johnson, as a matter of fairness, to be heard on the question of what orders should follow from the determination. Whilst Mr Johnson did not attend personally, as I understand the position this morning, the hearing proceeded and he was fully represented by his advocate.

1. As I understand the position, given that the proceedings are now up to the stage where orders stand to be resolved as being the orders which follow from the determination, the hearing cannot be all that far from completion.

1. Under s 108 of the VCAT Act, I have a discretion as to whether or not the Tribunal should be reconstituted. Given that substantive findings have now been made and having listened carefully to the arguments advanced by Mr SchorelHvlaka, it is, in my opinion, that it is clearly desirable that the matter proceed to final orders.

1. Noone is better placed than the Senior Member who heard the substantive proceedings to do this.

1. In so doing, I bear in mind that Mr Johnson is not deprived of his rights. In the event that he later demonstrates that Senior Member Smithers has made an error on a question of law in the Supreme Court, then the potential arises for the decision under review to be set aside. So the position is that Mr Johnson does have the opportunity of coming to the Supreme Court to seek to obtain leave and then to demonstrate that there is an error on a question of law. It is open to him to make such an application if he is so minded.

1. It has been suggested that Senior Member Smithers is biased or that there is a reasonable perception of bias. In my opinion, for the reasons that I have given, I am not satisfied that this is the case. It has not been demonstrated that there is either bias or a suspicion of bias. It is not sufficient to point to the decisions and rulings which have been made in the published written determination.

1. Accordingly, I am of the opinion that no basis has been shown as to why I should seek to reconstitute the Tribunal, and in the exercise of my discretion, I reject the application.

1. As a result, the position is that the proceedings before Senior Member Smithers will resume and I direct that those proceedings resume at 2:15pm on Wednesday 10 October 2012. This is a time where the parties have indicated that they are available. I appoint the venue for the conduct of those proceedings to be the William Cooper Justice Centre. I will so order.

1. It is my view that the question of costs in relation to these proceedings ought to be considered as a whole and what I propose to do in the circumstances is to reserve the costs relating to the reconstitution application before me for determination before Senior Member Smithers on or after Wednesday 10 October at 2:15pm. That will permit Senior Member Smithers to consider all of the costs applications that might arise in relation to these proceedings and to make a decision accordingly.

[1] (Unreported, VCAT, Justice Kellam P, 21 August 2000) [11].

[2] Legal Services Commissioner v Johnson [2012] VCAT 1426.

[3] [2005] VCAT 2447.

[4] Re State of Victoria and Bradto Pty Ltd [2005] VCAT 2512; (2005) 23 VAR 475.