1. Each party has leave to be represented by a legal practitioner throughout this proceeding.
2. The respondent's application for summary dismissal is dismissed.
3. No order as to costs.
4. The applicant is given leave to file and serve Amended Points of Claim by 12 September 2025.
5. The principal registrar is directed to produce this file to me for examination on 15 September 2025.

1. There is no doubt that the respondent showed serious deficiencies in the applicant's case as pleaded, which might result in dismissal of the proceeding after a contested hearing, perhaps with an order for costs under Part 4 Division 8 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), but that his application for summary dismissal of the proceeding must fail because the bar to succeeding in such an application is so high.
2. The applicant and the respondent own adjacent housing blocks of land in Echuca, on the Murray River. The blocks have been described as 'lifestyle properties', on which prestigious residences are constructed and which give access to the river.
3. To identify the parties' properties by using their relevant street numbers, the respondent owns no.s 224 and 222, which are at the north end of the street, and the applicant owns 218 which is the southern neighbour of 222.
4. South of no 218 are no.s 216, 212, 208, 206 and 202 which are owned by other people. There are no properties with street numbers 220, 214, 210, or 204.
5. As shown on an extract of a VicPlan Map around the properties, which has been exhibited to an affidavit, a bit north of No 224 a billabong runs east off the river. That billabong winds south and runs across no 224 and ends on no 222. Separate from the billabong, a lagoon which is about 80 metres wide and 150 metres long, is situated from about the centre of no 222 to about the centre of no 208.
6. The lagoon bisects no.s 218, 216, and 212. Numbers 222 and 208 are not fully bisected, enabling their occupants to walk down to the river. There is an embankment on the north of the lagoon, on no 224, and in the embankment is a pipe and a mechanical valve which can be opened and closed. The lagoon and the embankment have been present since at least 1989, years before the parties purchased their respective properties.
7. The applicant has a planning permit, under which he could build a floating pontoon across the lagoon, thus allowing him to walk to the river. He has not built the pontoon, though.
8. The applicant sold no.s 224 and 222 to the respondent in January 2017.
9. In this VCAT proceeding the applicant seeks to change things so that the level of the lagoon can rise naturally, such as when the river floods, and drain into the river. This would mean the lagoon could be empty from time to time.
10. The means by which the applicant seeks to bring about this change, is to sue the respondent under the Water Act 1989 (Vic), alleging that the respondent has taken or used water in an unauthorised manner or in unauthorised quantities and by doing so has caused injury or damage to the applicant within the meaning of section 15(1) of that Act; and alternatively that the respondent has caused a flow of water from his land to the applicant's, which is not reasonable and which has caused injury or damage to the applicant within the meaning of section 16(1) of that Act. In the latter allegation, the applicant asserts that the respondent has pumped water into the lagoon and kept the valve in the embankment permanently closed.
11. The applicant seeks injunctions to restrain the respondent from causing water to flow onto the applicant's land, and to compel the respondent to remove the embankment between the lagoon and the billabong. The applicant also seeks damages.
12. The respondent submits that the applicant's claims under the Water Act 1989 (Vic) are misconceived and lacking in substance, both of which expressions are specifically mentioned in section 75(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). Unfortunately for the respondent in the context of this application, the respondent raises matters which are defences, and so essentially calls for a final hearing at which the claims and defences and the evidence relating to them can be heard, and the proceeding determined. In summary, the respondent submits that if it was established that the respondent had closed the valve, that act would not cause a flow of water within the meaning of section 16(1) of the Water Act 1989 (Vic). Opening that valve would not be a reasonable step within the meaning of section 16(5) because releasing water from the lagoon would be unlawful, as the lagoon is a waterway within the meaning of section 8(1) and various persons have the right to take water from it. The respondent denies the applicant's allegations that he has pumped water into the lagoon and the respondent notes that the applicant has not given particulars of the allegation, but this presents a contest over allegations of fact which is precisely the situation in which summary dismissal is not to be ordered.
13. The applicant prepared the initiating Application by which this proceeding was commenced. It was received by the Tribunal's registry on 20 February 2024. The initiating Application was made on a printed form, completed in handwriting but also annexed to a typed document which basically repeated the handwritten text. Paragraphs 19 and 20 of the printed form called on the applicant to describe the orders sought, the legislation relied upon, and the reasons for the Application. To paraphrase what the applicant wrote in hand in these paragraphs and in the typed annexure:

An order to compel the respondent to remove unauthorised retaining wall in "natural depression on land" (ie, the lagoon), or provide suitable piping in the retaining wall to allow stormwater and flood water to flow from the lagoon and return to the river.

The retaining wall was constructed on no. s 222 and 224 in a depression to form a lagoon "many years ago". The lagoon was used to supply garden water for homes on no.s 224, 222, 218, 216, 202 and 208. When natural water was not available, water was pumped into the depression from the Murray River by the owner of 208. Due to ownership changes of these properties, no water has been pumped into or out of the lagoon since late 2016. Permits were not issued by Campaspe Shire and North Central Catchment Management Authority which "contravenes all rulings". The retaining wall restricts the natural flow of flood and storm water to the river.

Section 15 to 21 of Water Act 1989 outlines. Water flow onto neighbouring land unreasonable, which "contravenes all rulings".

The person causing flow of water is liable. Section 16(2) indicating an individual interfering with water flow is also liable.

I believe retained water is an environment and health hazard. All natural fish die in the stagnant water. Also water becomes a haven for mosquitoes to breed. Retained water also restricts land owners' ability to use areas of land covered by water.

1. The first directions hearing in the proceeding was held on 2 October 2024. The presiding Member identified irregularities in the Application form, and found that the Application did not clearly set out the claim. The Member ordered the applicant to file and serve Points of Claim, and set out in paragraph 5 of the Order the matters which should be addressed in that document.
2. On 29 October 2024, legal practitioners wrote to the Tribunal advising that they had been instructed to act for the applicant and that they would prepare the Points of Claim. The practitioners filed Points of Claim dated 21 November 2024.
3. The Points of Claim was in the form of a Court pleading, in separate numbered paragraphs. It set out a series of allegations of fact.
4. On 13 December 2024, a Senior Member scheduled a directions hearing. Due to various pressures on the Tribunal, that directions hearing was listed on 22 April 2025. The Senior Member ordered the applicant to file and serve Particulars of Loss and Damage, and any expert report/s on which the applicant would rely, by 28 March 2025. To date, the applicant has done neither.
5. By an Application dated 5 March 2025, the respondent applied for an order that the proceeding be summarily dismissed under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).[1] That document, and the submissions made in the hearing, show that the basis of the application is that the applicant's claim is misconceived and lacking in substance, which are expressions used in section 75(1) but are not all of them. The whole subsection says:

(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

(b) is otherwise an abuse of process.

1. There are a series of reported decisions which show that an applicant for summary dismissal faces an extraordinarily high bar, because the making of an order for summary dismissal deprives an applicant of their "day in court". A vivid example is the judgment of Kaye J in Forrester v AIMS Corporation.[2] It has not been overturned. It arose from a claim which was obviously weak.
2. Mr Forrester had been in gaol for 18 months. He complained to the Equal Opportunity Commission that during his term of imprisonment he was subjected to environmental tobacco smoke caused by the smoking of other prisoners, and that he was hypersensitive to tobacco smoke. Four of his complaints were referred to VCAT. The respondents applied for the complaints to be struck out_[3]_ under section 75(1)(a), essentially on pleading points to the effect that Mr Forrester had not made three allegations which were essential to establish rights under the Equal Opportunity Act 1995: he did not disclose a disability within the statutory definition; he did not allege that the respondents had treated him less favourably than a non-smoking prisoner; and he did not allege that in the circumstances that the respondents had unreasonably imposed a requirement condition or practice that Mr Forrester be exposed to environmental cigarette smoke.
3. The Tribunal struck out the proceeding, and Mr Forrester appealed.
4. At paragraph 12 of his judgment Kaye J quoted the Tribunal's written reasons, which included that Mr Forrester had not obtained medical evidence to establish that he has a medical condition that was an 'impairment' as defined in the Equal Opportunity Act 1995. The Tribunal had said that Mr Forrester's "assertions of 'hypersensitivity' and 'allergy' are self-diagnoses, and he is not qualified to diagnose himself[4] as having any underlying medical condition on the basis of the symptoms that he suffers", and that the Tribunal could not infer, simply on Mr Forrester's description of the symptoms that he suffers when exposed to tobacco smoke, that he suffers from any underlying conditions. The Tribunal said, "Without medical evidence to this effect, his case must fail".
5. The Tribunal had also said, "(Mr Forrester's submission) that a doctor can be called to give evidence on the basis of the complainant's description of his symptoms is insufficient, even in an application such as this. It does not appear that any inquiries have been made that any such evidence can be given or that any doctor is prepared to give such evidence.... even as a claim in indirect discrimination, it (Mr Forrester's claim) cannot succeed because it does not appear that there is, or will be, any evidence to establish that he has the attribute that he claims to have."
6. In State Electricity Commission of Victoria v Rabel and ors [5] the Court of Appeal considered a case in which the Equal Opportunity Board had summarily dismissed a case under a section of the Equal Opportunity Act which empowered the Equal Opportunity Board to do so when a case was "frivolous, vexatious, misconceived or lacking in substance". In paragraph 25 of Forrester v AIMS Corporation Kaye J said that these propositions emerged from that decision:
   1. In order to justify the summary dismissal of a proceeding ... the onus lay on the respondent to the complaint to show that the complaint is undoubtedly hopeless. That onus is similar to the burden imposed by courts when considering applications under Order 23.01 and 23.03 of the Rules of the Supreme Court.
   2. The task of the Tribunal is quite different to that which it might undertake upon the hearing of a no case submission after evidence has been heard upon the full hearing of a complaint. Of necessity the application (for summary dismissal) is of an interlocutory nature which is heard without the taking of full evidence.
   3. The power (to summarily dismiss or strike out) may not be invoked where all that is shown is that, on the material currently put before the Tribunal, the complainant may fail to adduce evidence substantiating an essential element of the complaint, at least where the complainant has not conceded that the material before the Tribunal constitutes the whole of the evidentiary material which the complainant intends to adduce on the hearing of the complaint. (emphasis added)
7. At paragraph 26 of Forrester v AIMS Corporation His Honour said that the pleading point that Mr Forrester had not disclosed a disability within the definition of impairment did not justify summary dismissal, because the real question was what evidence would be before the Tribunal on the full hearing of the complaint.
8. At paragraphs 29 to 33 of Forrester v AIMS Corporation His Honour said that the Tribunal had misdirected itself and applied the wrong test because it summarily dismissed Mr Forrester's application on the basis that he not could prove that he suffered from hypersensitivity to environmental smoke, examining "the evidence which (Mr Forrester) then had to determine whether that evidence could prove his case" when "it is not for the Tribunal, at least at an interlocutory stage of proceedings, to conduct a pre-trial assessment of the complainant's evidence to determine whether the complainant can prove his case. Such an approach is incorrect and inappropriate, at least unless the complainant clearly concedes that the material he has placed before the Tribunal contains the whole of the complainant's case".
9. His Honour also rejected the Tribunal's reasoning that Mr Forrester would only be able to call at a final hearing the evidence which had been disclosed at the time of the summary dismissal application. Additional evidence could come to light between the time the final hearing. At paragraph 38 His Honour said that in an interlocutory application the Tribunal was obliged to view the evidence in the light most favourable to Mr Forrester, and there was a basis in a note made by a doctor at the Melbourne Assessment Prison which could be construed as a medical diagnosis by that doctor Mr Forrester had "a medical need to be placed in a non-smoking cell in the future".
10. Indicating just how difficult it is for a respondent to succeed in a summary dismissal application, at paragraph 39 His Honour said:

on 26 August 2002 (Mr Forrester) saw Dr ... at Fulham Correctional Centre. Three days previously he had undergone a chest x-ray which was normal. In his affidavit (Mr Forrester) stated "Dr ... said that the ailment I have got would not show up on an x-ray." Thus, conceivably, (Mr Forrester) might subpoena Dr ***. If (Mr Forrester) was correct [and for the purposes of a strike out application his affidavit is assumed to be correct], Dr ... might give evidence that the appellant suffered from an ailment. (emphasis added)

1. Concluding this part of the analysis at paragraph 40, His Honour said

There was debate before me whether (Mr Forrester) could establish the hypersensitivity as an impairment without calling medical evidence. It is important to bear in mind that the question before the (Tribunal) was not whether (Mr Forrester) would be likely to establish such an impairment. Without medical evidence, ordinarily a claim of the type made by (Mr Forrester) would be quite weak. However, on the material before it, I do not consider that the Tribunal could conclude that it would be impossible for the appellant to establish the existence of his condition without calling medical evidence. It might be most unlikely that he would. Nevertheless, it is possible to envisage some, albeit unusual, cases in which it might be possible to establish a reaction to exposure to a particular set of circumstances (as an "impairment") without calling medical evidence. Whether such a method of proof would be possible, or would be accepted, would depend on the facts. Those facts would have to be elicited by evidence at a full hearing. The Tribunal could only conclude that (Mr Forrester) could not establish, as a matter of proof, his impairment, after (Mr Forrester) had had the opportunity to adduce his proofs at such a hearing. Only then could the Tribunal decide whether, on the facts of the case, the evidence adduced by (Mr Forrester) could [and did] establish the impairment on which he relied.

1. The decision in Forrester v AIMS Corporation compels me to dismiss the respondent's application.
2. However, the applicant, who for some reason terminated the retainer of his legal practitioners before the hearing of this summary dismissal application, would perceive from the application and the strong submissions made by Counsel for the respondent, that as the matter stands today he appears to have very poor prospects of success. In his submissions in opposition to the summary dismissal application, the respondent presented as if he thought that VCAT was not a legal decision-maker in the style of a court, but that proceedings in VCAT allowed the parties to have a conversation and allowed the Tribunal to make practical decisions regardless of the law. Frankly I do not accept that the respondent has such a naïve view of matters, particularly as he had instructed legal practitioners to draw his inadequate Points of Claim. I would of course expect his legal practitioners to have made appropriate costs disclosures under the legislation that governs legal practitioners, and that the disclosures would have entailed advising the respondent of the Tribunal's power to order a party to pay another party's costs.[6]
3. At present the applicant is a self-represented litigant. The Tribunal has a role in reasonably assisting a self-represented litigant to facilitate a fair hearing, without of course assisting so much as to be unfair to the other party. Section 80 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) empowers the Tribunal to make directions for the conduct of the proceeding. Whilst the applicant did not seek leave to amend his Points of Claim, now that he has received the written submissions of the respondent's Counsel and heard further submissions orally, I consider that as a matter of fairness the applicant should have the opportunity to seek legal advice and amend his Points of Claim if so advised. He may, of course, be advised not to amend, and so I place a time limit on this opportunity.
4. Because the applicant is self-represented, he did not incur any costs in opposing the summary dismissal application. Even if he had, costs do not follow the event in the Tribunal.[7] I do not consider it fair to order the respondent to pay any costs of or incidental to his summary dismissal application.

[1] In fact, the Application form literally applied for a date to be set for the hearing of a section 75 application, and for a timetable for the exchange of submissions before that hearing. Attached to the application was a detailed letter from the respondent's legal practitioners to the applicant's legal practitioners setting out the basis on which the respondent submitted that the proceeding was misconceived and lacking in substance within the meaning of section 75(1)(a), and giving the applicant until 26 February 2025 to withdraw the proceeding or face an application for summary dismissal under section 75. The 26 February 2025 deadline had passed, and so the Tribunal construed the document as initiating an application for summary dismissal under section 75.

[2] [2004] VSC 506 In quoting passages from this judgment, words in (round brackets) have been inserted by me, and words in [square brackets] are in the original.

[3] Striking out a proceeding is less drastic than summarily dismissing the proceeding, because a proceeding which has been struck out is capable of being reinstated. The power to strike out or dismiss "part of" a proceeding empowers the Tribunal to strike out a pleading or other document filed by a party.

1. [4] It is uncontroversial to say that Mr Forrester did not qualify as an expert witness in relation to medical matters.

[5] [1998] 1 VR 102.

[6] This information is important to a party, both in the context of the costs which the party might recover from their opponent as well as the costs which the party might be ordered to pay their opponent. Clients of legal practitioners need this advice so that they can contemplate the potential "bottom-line" outcome of litigation.

[7] Section 109(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).