and the applicant's appeal with leave from her Honour Justice Mortimer on 3 October 2014 (yet to be instituted) in the Federal Court of Australia matter of Luck v The Secretary of the Department of Human Services, the Administrative Appeals Tribunal and Stephanie Ann Forgie (as Deputy President of the AAT) VID512/2013; VID65/2010 to the Full Court of the Federal Court of Australia, whereby one of the questions of law relies on the application of the disability Discrimination Act 1992 (Cth) to the way in which the Tribunal dealt with the applicant's review application.

Until the determinations by the HCA and FCA, of the constitutional questions of law relating to the disability discrimination and continued harassment of the applicant, because of her need for reasonable adjustments and to use assistive technology, as per her rights under the Disability Discrimination Act 1992 (Cth) (DDA), the Equal Opportunity Act 2010 (Vic) (EOA) and the Charter of Human Rights and Responsibilities Act 2006 (Vic) (CHRRA) and the continued failure, in breach of the DDA, EOA and CHRRA, of the Tribunals and Courts, to exercise their executive power to grant such reasonable adjustments to enable the applicant's equality before the law, the applicant is unable to ready her case for hearing, as those questions will inevitably arise prior to such a hearing and prevent the applicant's equality before the law, and cause the applicant disadvantage and detriment, if not determined beforehand.

1. Victoria Police filed a detailed submission including a chronology of this proceeding and related matters covering the period 31 December 2011 to 22 October 2014 and extending over some seven pages. Victoria Police submitted:

That the Tribunal should make orders giving some finality to this proceeding.

1. Victoria Police did not seek a listing for final determination, stating:

As the matter currently stands the Respondent would face irreparable prejudice if the matter is to be listed without the opportunity to lead additional evidence.

1. Victoria Police took Ms Luck to be seeking, in substance, an indefinite adjournment and contended:

that should the Tribunal grant the Applicant's request for an indefinite adjournment the Tribunal should make orders which reflect the disadvantage to the Respondent already caused by the Applicant. In summary, such orders should make it clear that the delay caused by the Applicant has led to a situation where the Respondent is unable to conclude its case without the need to engage in additional actions to update and amend its evidence. The Respondent is of the view that this additional work, which will cause significant additional expense, should not be required unless and until the Applicant is in a position to pursue her case efficiently.

1. Victoria Police submitted that the Tribunal should consider dismissing this proceeding pursuant to section 76 of the Victorian Civil and Administrative Tribunal Act 1998 which empowers the Tribunal to dismiss proceedings 'for want of prosecution'. Victoria Police then set out what they said constituted unreasonable delay by Ms Luck and prejudice to Victoria Police as grounds for making an order of dismissal. As a 'fall back' position it was submitted that an order by way of strike out should be made. Nevertheless, the Victoria Police submission stated:

However, it would continue to place the Respondent at risk of significant disadvantage if the matter were to be re-enlivened after a further lengthy delay. It would also pose potential administrative issues given that the proceeding is presently part heard before a Vice President of the Tribunal who might become unavailable by reason of other obligations.

1. In substance Ms Luck seeks to put this proceeding 'on ice' pending completion of the other legal proceedings which she mentions in her submission. In the present situation whereby this matter has been adjourned from time to time, it is unsatisfactory for the parties and the Tribunal. At each adjourned date it is necessary for the parties to file further submissions or appear at a further directions hearing. In a matter where there has already been a very large expenditure of costs it is inimical to the Tribunal's mandate to determine matters economically for these costs to continue.
2. It would be unjust to take any option which would now peremptorily terminate the proceeding. An order by way of strike out is appropriate. I do not believe section 76 of the Victorian Civil and Administrative Tribunal Act dealing with the Tribunal's powers of dismissal for want of prosecution is an appropriate basis for making a strike out order. The concept 'want of prosecution' has an extensive juridical history under the Rules of the Supreme Court of Victoria and other Australian and English courts.
3. An order of strike out does not terminate a proceeding, it merely removes it from the list of active matters, leaving open the possibility of reinstatement should justice require: Tanska v Transport Accident Commission [2000] VSC 56; New South Wales Insurance Ministerial Corporation v Anderson, Court of Appeal unreported, Butterworths Unreported Judgment Series BC9404890; R v McGowan [1984] VicRp 78; [1984] VR 1000, 1004; Bradd v State Revenue Office [2006] VCAT 867.
4. Since an order of strike out does not entail the peremptory dismissal of a proceeding it is an order which could be made under a power to give directions such as the Tribunal possesses under section 80 of the Victorian Civil and Administrative Tribunal Act, cf Excel v Excel [1984] VicRp 1; [1984] VR 1. Since this proceeding had reached the stage of final trial, the Tribunal also possesses the power to regulate its own procedure under section 98(3) of the Victorian Civil and Administrative Tribunal Act. Hence, there is ample authority to make an order of strike out without establishment of a 'want of prosecution' which would be necessary for the making of an order under section 76.

The applicant apprehends bias by the Tribunal (generally and by the Tribunal constituted by His Honour, Judge Macnamara) based on disability discrimination of the applicant in respect of this matter and her other matters before the Tribunal, constituted by his Honour and other Judges or Members of the Tribunal, and the failure to grant to the applicant, reasonable adjustments, particularly in relation to her use of assistive technology, by way of digital note-taker, as recommended to be used by her medical practitioner and supported by the applicant's provision on numerous occasions to the Principal Registrar, of her medical certificates, as requested by the applicant of that relevant executive officer of VCAT, in accordance with her rights under the Disability Discrimination Act 1992, which requests had not been processed or were refused, and therefore, in making decisions to deny or grant the requests for reasonable adjustments, his Honour would wrongly assume and exercise an executive power not vested in him as a judge of the Tribunal.

1. In a letter to the parties dated 11 November 2014, the Registrar of the Tribunal stated inter alia:

Ms Luck makes complaint of a refusal to allow her to employ a digital notetaker. No party is at liberty to use such a device without leave of the Tribunal.

If an application were made in open hearing BEFORE the device is activated leave may be granted to Ms Luck to use the device subject perhaps to certain undertakings.

1. Once the matters for which Ms Luck says this proceeding should be deferred are resolved, she remains at liberty to press her complaints as to bias should this proceeding be reinstated. I observe, however, her contention begins 'the applicant apprehends bias ...'. The test for apprehended bias requires consideration, not of the perceptions of the litigant, but rather of an objective observer.

1. Ms Luck seeks an order that Victoria Police pay her costs in the proceeding 'and then incidental proceeding'. Ms Luck represented herself. Apart from any filing fees or hearing fees, she has not incurred any of what the law regards as costs: Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403. The appropriate order for costs at this stage is that they be reserved.