Plaintiff v Defendant

2 On 17 November 2014, during the investigation, Mr Beling commenced proceedings against the Commissioner seeking judicial review of aspects of the investigation. The Commissioner sought summary dismissal of the proceeding. Mr Beling sought leave to discontinue the proceeding.

3 On 22 April 2016, an Associate Justice dismissed the proceeding and ordered that Mr Beling pay the Commissioner's costs.[1] Mr Beling is now seeking leave to appeal the decision of the Associate Justice more than four years out of time.

4 In October 2019, Mr Beling commenced a proceeding seeking leave to appeal the Tribunal's orders determining the disciplinary charges. A Judicial Registrar heard the application for an extension of time, declined it, dismissed the notice of appeal seeking to leave to appeal out of time and ordered that Mr Beling pay costs.[2] Mr Beling has appealed the Judicial Registrar's orders, and that appeal is the second proceeding before the Court.

5 The two proceedings were listed for hearing on 26 March 2021, but Mr Beling sought their adjournment so that he could make three interlocutory applications and have them first determined. The Commissioner opposes the applications. The hearing of the three applications occupied the day on which the two proceedings had been listed for hearing.

6 Mr Beling's first application seeks leave to join the Tribunal as a second defendant to the proceedings. The second sought leave to serve interrogatories, which are directed to the Tribunal in the 2019 proceeding. The third sought leave to file and serve a notice to admit on the Tribunal in the 2019 proceeding.

7 Mr Beling seeks to join VCAT as a party in both proceedings, although primarily in the 2019 proceeding.[3] No valid reason was advanced as to why VCAT should be a party to the 2014 proceeding, which sought judicial review orders against the Commissioner in respect of conduct occurring before the Commissioner commenced disciplinary proceedings against Mr Beling in VCAT.

8 Mr Beling seeks leave to serve 13 interrogatories on the Tribunal in the 2019 proceeding.

9 They seek information about copies of the client file that Mr Beling produced to the Tribunal, including who prepared copies of it, the custody of the file, the differences between two copies of the client file, why copies of it 'almost perfectly match', how the client file was prepared by the Tribunal for the hearing, when the President, a Deputy President and the Senior Member saw missing documents, details of communications between the Senior Member and the President of the Tribunal and the Commissioner in his absence concerning the client file, their opinions on the 'forensic significance' of missing documents, which VCAT staff members heard and determined particular proceedings, why the client file was not numbered consecutively and had 'photocopied pages showing photocopied black versions of the Plaintiff's original handwritten page numbers on the bottom right-hand corner of the page' and why the plaintiff was not penalised for making a particular allegation in submissions about penalty.

10 There are also interrogatories on file directed to the Commissioner dated 21 January 2021 in the 2014 proceeding. It was unclear whether Mr Beling was seeking leave to serve them. They seek information about the persons who worked in the Commissioner's office during the disciplinary investigation, why the Commissioner's notice of decision did not analyse or decide various matters, the state of knowledge of a staff member about whether the Commissioner had obtained the former client's waiver of legal privilege to use his client file in the investigation, why two responses from the Commissioner did not analyse or decide Mr Beling's complaints about particular matters, whether particular allegations made by the Commissioner in the disciplinary investigation complied with professional standards in the legal profession, and the recollections of named persons about statements made by counsel and by the Associate Justice during a Supreme Court hearing in 2015.

Mr Beling's application for leave to serve a notice to admit on the Tribunal

11 The proposed notice to admit was directed to the Tribunal in the 2019 proceeding. It appears that notices to admit have already been served on the Commissioner in the 2014 and 2019 proceedings and that she had served a notice of dispute to all of the admissions sought save for three in the notice to admit in the 2019 proceeding.

12 The notice to admit to the Tribunal in the 2019 proceeding listed 16 assertions to which admissions were sought. A number sought admissions about the provenance of the version of the client file held by the Tribunal, the chain of custody of the file and when particular people first saw certain missing documents, including documents concerning Mr Beling's former client. It also sought admissions as to the version of the client file the Tribunal has possessed at various times and that it is not a true and correct version of his client file, which he filed with the Tribunal in 2013. It sought admissions about who prepared the client file, whether the Commissioner complied with professional standards in the legal profession in the disciplinary proceeding against Mr Beling, about VCAT staff members communications with the Commissioner to organise what is described as the 'alleged falsification and forgery of the Plaintiff's client file' in particular proceedings, that the Tribunal did not criticise or penalise Mr Beling for a particular allegation that he made during a hearing and that a particular Tribunal staff member did not hear or determine a particular VCAT proceeding.

13 Most of Mr Beling's submissions in support of his application shared a theme of allegations of impropriety, particularly about tampering with the client file held by the Tribunal. As a result of improprieties, he was not provided with a fair hearing and the decisions that he challenges cannot stand.

14 Mr Beling said that after it had been returned to him in July 2013, he had photocopied the client file, and at that point, the file was not tampered with. He paginated the photocopied file in blue pen and filed a copy with VCAT with his original handwriting written in blue pen on it. He alleged that the file tampering occurred after the Tribunal granted the Commissioner an adjournment of the proceeding. In the interval between the adjournment and the next return date, he requested to inspect the file maintained with the Tribunal and was told that the file needed to be reviewed to remove file notes of the Senior Member who heard the matter. This took a week. He said that an experienced member would not make personalised notes on a public file and considered that the Tribunal used the time between the request and the approval to tamper with the file and remove documents, including a deed of settlement. He made other allegations of impropriety associated with the Tribunal's hearing of the Commissioner's case against him.

15 In his affidavit, Mr Beling stated that the interrogatories were 'highly relevant' to his dispute with the Commissioner as well as to the administration of justice in the State of Victoria in general.

16 He made other allegations about the hearings in the 2014 and 2019 proceedings and about procedural rulings made by the Judicial Registrar, but it is unnecessary to detail them to decide these applications.

17 The Commissioner submitted that there was no basis for the joinder of the Tribunal. The appeal from the Judicial Registrar's orders was limited to whether time should be extended and it did not require the joinder of the Tribunal as a party. An extension of time was required in the 2014 proceeding for the appeal from the Associate Justice's orders. Mr Beling's motive for seeking to join the Tribunal as a party was to interrogate its officers and employees and further agitate his allegations of file tampering. The interrogatories and notice to admit sought to fish for further details of file tampering and were not relevant to whether time should be extended. In the 2019 proceeding, Mr Beling had made a forensic decision not to challenge the Judicial Registrar hearing the matter. Mr Beling's serious allegations against tribunal members and judicial officers were completely baseless and unsubstantiated. In any event, the Tribunal was not a party to whom interrogatories could be served.

18 The Commissioner submitted that granting Mr Beling's applications would lead to a further adjournment which would be inconsistent with the aims of the Civil Procedure Act 2010 of promoting the prompt disposition of proceedings. Finality of proceedings was important, as was observance of time limits in which proceedings can be commenced.

19 In fact, Mr Beling did raise issues of falsification of his file with the Tribunal, but it rejected the claims. Those claims of falsification were also raised before the Judicial Registrar.

Application to join VCAT as a party and to serve on it a notice to admit and interrogatories

20 The question of whether Mr Beling should be granted leave to file and serve the interrogatories and a notice to admit on the Tribunal only arises if an order is made that the Tribunal be joined as a party in the 2019 proceeding. This is because the Rules provide that interrogatories and notices to admit can only be served on 'another party'.[4]

21 There is no case for the Tribunal to be joined as a party to the 2014 proceeding as it played no part in it.

22 There is also no case for it to be joined as a party to the 2019 proceeding, which is an application for leave to appeal on questions of law from VCAT's orders determining the Commissioner's disciplinary charges against Mr Beling and an appeal from the Judicial Registrar's dismissal of the proceeding. Under s 148 of the Victorian Civil and Administrative Tribunal Act 1998, the questions of law have to concern, or arise from, the orders of the Tribunal. The Tribunal is not joined as a party to such applications for leave to appeal.

23 The discretion to allow joinder of persons is designed to bring to an end, as efficiently as possible, disputes between parties. There must be a basis to justify the joinder so that that the order is not futile. On that requirement alone, Mr Beling's application must be refused. His attempt to appeal the orders of the Associate Justice dismissing the 2014 proceeding made many years out of time has nothing to do with VCAT. In the 2019 proceeding, Mr Beling sought leave to appeal against VCAT's orders. The 2019 proceeding was out of time, and the Judicial Registrar refused to extend time and dismissed it. Mr Beling apparently commenced his appeal from the Judicial Registrar's orders within time. That appeal is a de novo appeal,[5] and so he does not have to prove error as his application is reheard. But he did not seek to have the Tribunal joined as a party before the Judicial Registrar and his explanation for not doing so, that he considered that it might be counterproductive to his interests because of the relationship between judicial officers, provides no justification for his failure to do so. His allegations of judicial impropriety and collusion were not supported by any evidence.

24 Mr Beling's submissions do not persuade me that the Tribunal should be joined as a party. I therefore refuse his application for that order.

25 That means that the notice to admit and interrogatories in the 2019 proceeding cannot be served on the Tribunal. In any event, their subject matter has no relevant connection with any issue that can arise in the proceeding. They are entirely an exercise in fishing, seeking to pursue unsubstantiated claims which are not relevant. They raise allegations of impropriety without any justifiable basis. They cannot be allowed. I also note that interrogatories and notices to admit are not usually permitted in judicial review proceedings or in appeals on questions of law from orders of tribunals.

26 As I mentioned, it is unclear whether Mr Beling was seeking leave to serve the 'plaintiff's interrogatories to defendant' dated 21 January 2021, which are on file and stated to be in the 2014 proceeding. But my summary of the contents of the interrogatories shows that they suffer from fundamental flaws and cannot be allowed. If leave had been sought to serve them, I would have refused it. First, they are fishing and are based on allegations of impropriety for which no basis is provided. Secondly, they have no relevant connection to the nature of the proceedings. Mr Beling could only succeed in the 2014 proceeding by obtaining an extension of time and then establishing legal errors in the reasons of the Associate Justice affecting the orders that he made.

27 Question arose about whether Mr Beling should be permitted to amend his notices of appeal. He and the Commissioner had signed minutes of consent orders permitting him to file three Amended Notices of Appeal. But that consent does not remove the Court's power to decide whether the amended documents should be permitted to be filed.

28 I do grant leave to Mr Beling to rely on the Notice of Appeal dated 18 January 2021 from the Judicial Registrar, which contains three pages and two grounds of appeal and which I have initialled and which will be placed on the Court file.

29 I do not grant leave to rely on the two amended notices of appeal dated 18 January 2021 from the Associate Justice or from VCAT as the proposed amendments contain allegations of impropriety without referring to supporting evidence. Moreover, the allegations contained in the proposed amendments possess no connection to any issue relating to Mr Beling's appeals or applications for leave to appeal.

1. The plaintiff's application to join the Victorian Civil and Administrative Tribunal as a second defendant is refused.
2. The plaintiff's application for leave to file and serve a notice of appeal from the orders of the Associate Justice in the form of the 12-page document dated 18 January 2021 is refused.

3. The proceeding be listed for hearing on a date to be fixed.

2019 proceeding

1. The plaintiff's application to join the Victorian Civil and Administrative Tribunal as a second defendant is refused.
2. The plaintiff's application to serve a notice to admit and interrogatories on the Victorian Civil and Administrative Tribunal are refused.
3. On or before 5:00 pm on Thursday, 8 July 2021, the plaintiff may file and serve an Amended Notice of Appeal in the form of the three-page document dated 18 January 2021 containing two grounds of appeal which has been initialled by the Judge and placed on the Court file.
4. The plaintiff's application for leave to file and serve a notice of appeal dated 18 January 2021 from the orders of the Victorian Civil and Administrative Tribunal dated 12 July 2017 and 27 September 2017 in proceeding J71/2015 is refused.

1. On or before 5:00 pm on Thursday, 8 July 2021, the parties are to file and exchange written submissions of no more than five pages on the question of the costs of and incidental to the applications heard on 26 March 2021.
2. On or before 5:00 pm on Thursday, 15 July 2021, the parties are to file and exchange written submissions of no more than two pages in reply to submissions served on them pursuant to the previous order.

[1] Beling v Legal Services Commissioner [2016] VSC 180.

[2] Beling v VLSC [2020] VSC 200.

[3] Transcript of Proceedings, Beling v Victorian Legal Services Commissioner (Supreme Court of Victoria, S CI 2014 04597; S ECI 2019 04627, Ginnane J, 26 March 2021) 4, 28.

[4] See Supreme Court (General Civil Procedure) Rules 2015 rr 30.02, 35.03.