Plaintiff v Defendants

Supreme Court of Victoria|2014-12-12|Before: WILLIAMS J

[2014] VSC 619, First revision: 27 March 2015

ADMINISTRATIVE LAW - Victorian Civil and Administrative Tribunal - Leave to appeal - Findings of gross misconduct and serious misconduct under Local Government Act 1989 - Whether denial of natural justice - Alleged bias - Whether breach of Local Government Act 1989 s 76 - Whether breach of Victorian Civil and Administrative Tribunal Act 1998 s 62, s 82, , , , , , , - Leave refused

1 The plaintiff, Mr Muto, is a municipal councillor of the City of Greater Shepparton. He seeks leave to appeal from orders of the Victorian Civil and Administrative Tribunal ('VCAT') made on 10 July 2013 in VCAT proceedings B82 and B87 of 2012. Senior Member Byard and Member McNamara were the Tribunal Members who made the impugned orders.

2 In VCAT proceeding B87 ('the gross misconduct proceeding'), the Secretary to the Department of Planning and Community Development obtained a finding of 'gross misconduct' against Mr Muto under s 81E of the Local Government Act 1989.

3 In proceeding B82 ('the serious misconduct proceeding'), the second to seventh defendants, a group of six of Mr Muto's fellow councillors ('the councillors'), obtained a finding of 'serious misconduct' against him. They had been authorised to bring the proceeding by a Councillor Conduct Panel ('CCP') under s 81J of the Local Government Act.

4 The Secretary to the Department of Planning and Community Development was joined as a party to the serious misconduct proceeding on 31 December 2012, when the Tribunal made an order under s 82(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998 ('VCAT Act') that the two proceedings be heard together. It should be noted that they were not consolidated under s 82(1)(a).

5 Because Mr Muto raises the issue of the identity of the defendant Secretary, I will explain the effect of the Administrative Arrangements Order 2013.[1]

6 On 1 July 2013, by virtue of changes made under cl 6 of that order, the first defendant Secretary to the Department of Transport, Planning and Local Infrastructure, as a 'New Body',[2] succeeded to the Secretary to the Department of Planning and Community Development, being an 'Old Body',[3] in the two VCAT proceedings.[4] This meant that the serious misconduct proceeding and the gross misconduct proceeding each continued as if the change had not been made and the litigation could be given effect to, or enforced or completed in relation to the Secretary to the Department of Transport, Planning and Local Infrastructure in the same way as it would have been in relation to the Secretary to the Department of Planning and Community Development.

Saving of existing transactions

If a transaction happened in relation to an Old Body before this Order takes effect -

(a) the transaction shall continue in the same way it would have continued if this Order had not been made; and

(b) the transaction may be given effect to, or enforced or completed, by or in relation to the New Body in the same way as it would have been given effect to, enforced or completed, by or in relation to the Old Body if this Order had not been made.

8 Given the effect of the Order, I will refer to each of the Secretaries as 'the Secretary' in these reasons.

9 On 10 July 2013, the Tribunal found that Mr Muto had engaged in conduct constituting 'gross misconduct' under para (b) of the definition in s 81A of the Local Government Act and conduct amounting to 'serious misconduct' under para (c) of the s 81A definition of that term.

10 Those definitions in s 81A were these:

serious misconduct by a Councillor means -

(c) conduct by a Councillor that contravenes the Councillor conduct principles after the Councillor has had a previous finding of misconduct, serious misconduct or gross misconduct made against them by ... VCAT in the last 4 years;

gross misconduct by a Councillor means behaviour that -

(a) contravenes -

(i) the Councillor conduct principles; and

(ii) a section of this Act, the contravention of which has a penalty of at least 60 penalty units; or

(b) demonstrates that a Councillor is not of good character or is otherwise not a fit and proper person to hold the office of Councillor;

11 The 'Councillor conduct principles' referred to in the definition of serious misconduct were set out in ss 76B and 76BA as follows:

76B Primary principle of Councillor conduct

It is a primary principle of Councillor conduct that, in performing the role of a Councillor, a Councillor must -

(a) act with integrity; and

(b) impartially exercise his or her responsibilities in the interests of the local community; and

(c) not improperly seek to confer an advantage or disadvantage on any person.

76BA General Councillor conduct principles

In addition to acting in accordance with the primary principle of Councillor conduct specified in section 76B, in performing the role of a Councillor, a Councillor must -

(a) avoid conflicts between his or her public duties as a Councillor and his or her personal interests and obligations;

(b) act honestly and avoid statements (whether oral or in writing) or actions that will or are likely to mislead or deceive a person;

(c) treat all persons with respect and have due regard to the opinions, beliefs, rights and responsibilities of other Councillors, Council staff and other persons;

(d) exercise reasonable care and diligence and submit himself or herself to the lawful scrutiny that is appropriate to his or her office;

(e) endeavour to ensure that public resources are used prudently and solely in the public interest;

(f) act lawfully and in accordance with the trust placed in him or her as an elected representative;

(g) support and promote these principles by leadership and example and act in a way that secures and preserves public confidence in the office of Councillor.

12 Having made its findings of gross and serious misconduct, the Tribunal went on to make the following orders against Mr Muto under s 81K of the Local Government Act:

Having found gross misconduct on the part of the respondent in proceeding B87/2012 we order that Councillor Milvan Muto of the council of the City of Greater Shepparton is disqualified as a councillor for four years from 1 July 2013 and that his office as councillor is vacated.
In relation to our finding of serious misconduct in relation to proceeding B82/2012, we order that Councillor Milvan Muto of the council of the City of Greater Shepparton is suspended from office as a councillor for a period of six months commencing on 1 July 2013 and that he is ineligible to hold the office of mayor or to chair a special committee of the council for a period of four years from 1 July 2013

13 This Court stayed the orders pending the determination of this appeal on 10 October 2013.

14 Mr Muto now seeks leave to appeal, out of time, from each of the orders under s 148 of the VCAT Act. If leave be granted and the appeals allowed, he also seeks orders that both proceedings be remitted for hearing by a differently constituted tribunal pursuant to s 148(7)(c) of the VCAT Act. He has represented himself in the appeal.

15 The councillors opposed Mr Muto's application for an extension of time to make his application for leave to appeal in the serious misconduct proceeding and resist his application for leave. Whilst they did not appear before the Court, they relied upon a 19 September 2013 affidavit of their solicitor, Ian Charles Ritchie, and written submissions.

16 The Secretary appeared to oppose the applications.

17 Before referring to the reasons for the Tribunal's orders,[5] I will state my findings as to some background and contextual facts.

18 In about 2011, the Secretary had previously sought a finding of 'gross misconduct' against Mr Muto. The proceeding had resolved by agreement that there had been 13 instances of 'misconduct' by him as a councillor and that certain orders were appropriate.

19 'Misconduct' is defined under s 81A of the Local Government Act in this way:

misconduct by a Councillor means -

(a) conduct by a Councillor that is in breach of the Councillor Code of Conduct; or

(b) the failure of a Councillor to comply with a direction of a Councillor Conduct Panel where the Panel has not made a finding of misconduct against the Councillor;

20 Accordingly, on 4 March 2011 VCAT President, Ross J, found that Mr Muto had engaged in 'misconduct' under s 81K[6] and ordered that he be reprimanded for the misconduct, make a public apology in specified terms, and take a month's leave of absence from 4 March 2011. Ross J also ordered that the orders be tabled at a March 2011 council meeting and recorded in the meeting minutes.

21 Mr Muto gave an undertaking to VCAT to the effect that he would not perform any duties as a councillor from 5 April 2011 to 5 September 2011, other than attend monthly public council meetings and meetings of a 'Shepp Show Me' committee. He also made this public apology:

In 2010 proceedings were commenced against me by the Secretary to the Department of Local Government alleging gross misconduct.

Those proceedings against me have now been resolved. As part of that resolution the Secretary has agreed not to pursue the allegations of gross misconduct and I have admitted 13 counts of misconduct as set out in a further amended notice of allegations dated 3 March 2011. The remaining allegations from earlier notices have not been proceeded with.

I wish to publicly acknowledge any disruption and damage which my conduct has caused to the proper functioning of the Council and to its standing in the Greater Shepparton Community.

I apologise to all affected by my conduct, including my fellow Councillors, the CEO and general managers, other Council staff, and to the Greater Shepparton community. To the extent that any words I used which might be considered as racist, that was never my intention.[7]

22 On 23 August 2011, noting Mr Muto's impending return to the Council, the second defendant and then mayor, Cr Dobson, emailed him on behalf of the councillors. In the email, he suggested a mediation focussing on the Council's Councillor Code of Conduct, in the interests of establishing a co-operative and professional relationship to benefit all 'stakeholders'.

24 Cr Dobson emailed him again on 28 November 2011, alleging further breaches of the Councillor Code of Conduct. This email noted that mediation was to be the first option under the Code to address councillor disputes. It stated that Mr Muto's failure to respond had been treated as a rejection of the offer of mediation. Cr Dobson sought Mr Muto's response to the breach allegations before asking the Council's chief executive officer to appoint a CCP.

I think you are all correct I have a healthy Disrespect for liars and cheats and for councilors (sic) That have their own agendas, especially Councilors (sic) that do not respect the wishes of their community. I think you would all be better of (sic) trying to do something good for our community rather than wasting time and money on a childish witch hunt. Grow up might be a better way of putting it.

26 On 8 December 2011, the councillors applied for the appointment of a CCP and sought its authority under s 81B of the Local Government Act to apply to VCAT for a finding of 'serious misconduct' against Mr Muto. They alleged ten instances of misconduct between 6 June 2011 and 29 November 2011.

27 On 7 March 2012, the CCP authorised the councillors to commence the serious misconduct proceeding.

28 On 13 April 2012, the Secretary commenced the gross misconduct proceeding.

29 On 4 June 2012 at the first directions hearing in both proceedings, counsel represented Mr Muto in the serious misconduct proceeding, but he represented himself in the gross misconduct proceeding. VCAT Deputy President Lambrick made orders under which :

(a) a hearing date of 27 August 2012 was fixed in the serious misconduct proceeding;

(b) a hearing date of 30 August 2012 was fixed in the gross misconduct proceeding;

(d) Mr Muto was directed to file witness statements by 23 July 2012 in the serious misconduct proceeding;

(e) the councillors were directed to serve a tribunal book containing all the witness statements to be relied upon in the serious misconduct proceeding upon Mr Muto by 6 August 2012; and

(f) the Secretary was directed to serve a tribunal book on Mr Muto in the gross misconduct proceeding by 24 July 2012.

30 On 12 June 2012, in accordance with the orders, the Secretary filed and served witness statements of:

(a) Julie Salomon, acting chief executive officer of the council from July 2011, detailing complaints about Mr Muto's behaviour at council meetings on 19 July 2011, 4 October 2011, 15 and 29 November 2011 and 7 December 2011, and alleging that he had sent inappropriate emails and made inappropriate telephone calls to her and other council officers between 19 September and 21 December 2011;

(b) Tina Zappala, executive assistant to the chief executive officer, alleging that Mr Muto had made an abusive call to Ms Salomon on 21 December 2011;

(c) Dean Rochford, the council's General Manager of Sustainable Development, in relation to the alleged 21 December phone call to Ms Salomon and Mr Muto's accusation of corruption on Mr Rochford's part, at a 6 December 2011 meeting; and

(d) Councillor Cherie Crawford, making allegations about Mr Muto's behaviour at and immediately after the 6 December meeting and after another meeting on 20 December 2011.

31 On 26 June 2012, the councillors filed witness statements in the serious misconduct proceeding of:

(a) Councillor Dobson, making allegations about Mr Muto's behaviour at meetings and briefing sessions from 7 June 2011 to 6 December 2011, sending inappropriate email correspondence to councillors and council staff and the general public, and displaying signs on an electronic billboard at the Shepparton Hotel; and

(b) Councillors Michael Polan, Cherie Crawford, Chris Hazelman, Jenny Houlihan and Kevin Ryan, adopting Councillor Dobson's statement.

32 Mr Muto failed to comply with the orders and did not file witness statements in either proceeding.

33 In those circumstances, the Secretary sought further directions hearings which were held on 11 July 2012. Mr Muto was self-represented in both matters. Another VCAT Senior Member extended the time for him to file his material in the gross misconduct proceeding to 10 August 2012 and changed the hearing date to 27 August 2012. In the serious misconduct proceeding, the Senior Member extended the time for Mr Muto file his material to 20 September 2012 and changed the hearing date to 12 November 2012.

34 Mr Muto failed to file his material in the gross misconduct proceeding by the extended date and, on 14 August 2012, there was a third telephone directions hearing in that proceeding. Mr Muto did not appear, having advised VCAT that he was 'out of phone range for the week'. Nevertheless, an order was made extending the time for him to file his material to 20 August 2012.

35 On 16 August 2012, Mr John Barrett, a solicitor, commenced acting for Mr Muto in both proceedings.

36 On 21 August 2012, the County Court made an order under s 29(4) of the Local Government Act that Mr Muto take leave of absence from his office as councillor until a pending blackmail charge against him had been determined.[8]

37 Mr Muto failed to comply with the order that he file his material in the gross misconduct proceeding by 10 August 2012.

38 On 27 August 2012, the scheduled date for the commencement of the hearing in the gross misconduct proceeding, Mr Barrett represented Mr Muto before Senior Member R Davis and Member McNamara. At Mr Muto's request, the hearing date was adjourned to 14 November 2012 and the time for him to file and serve his material was extended to 30 October 2012.

39 On the same day, Senior Member R Davis vacated the 12 November 2012 hearing date in the serious misconduct proceeding. He listed the serious misconduct proceeding for directions on 11 September 2012.

40 At the directions hearing on 11 September 2012, Mr Muto was self-represented. A Senior Member ordered that the serious misconduct proceeding be set down for hearing not before mid-February 2013. Mr Muto was also given an extension of the time for filing of his witness statements to 21 December 2012.

41 On 24 September 2012, the solicitors, Lewis Janover, began to act for Mr Muto in both proceedings.

42 On 5 October 2012, Mr Muto filed an application for the striking out of the serious misconduct proceeding.

43 On 26 October 2012, he wrote to the Secretary seeking the adjournment of the hearing in the gross misconduct proceeding, in light of the criminal proceedings pending against him and his strike out application in the serious misconduct proceeding.

44 On 8 November 2012, the Secretary responded to Mr Muto. He refused to consent to the adjournment of the gross misconduct proceeding and indicated that if Mr Muto wished to have Ross J's orders set aside, he should appeal to the Court of Appeal, rather than mount a collateral attack upon the orders in a strike out application.

45 On the next day, 9 November 2012, two things happened. The Secretary wrote to the parties to the serious misconduct proceeding, seeking their consent to his joinder as a party for the strike out argument, and, in chambers, a VCAT Senior Member refused Mr Muto's written application for a stay of the gross misconduct proceeding, noting that he could make such an application at the 14 November 2012 hearing.

46 On 13 November 2012, Lewis Janover for Mr Muto filed witness statements in the gross misconduct proceeding of:

(a) Bruce Little, a private investigator, alleging that he had been with Mr Muto when the 21 December 2011 telephone conversation occurred and did not hear him swearing at the person to whom he was speaking; and

(b) Barry Smith, the then chairman of the 'Shepp Show Me' committee, stating that he was the person to whom Mr Muto had spoken on the telephone after leaving the meeting of 6 December 2011, and that he had not heard Mr Muto swear during that conversation.

47 On 14 November 2012, the gross misconduct proceeding was scheduled for hearing and the serious misconduct proceeding for directions. Mr Muto was represented by Ms Knowles of counsel before Senior Member Byard and Member McNamara. Mr Muto again applied for an adjournment of the gross misconduct proceeding until the blackmail charges against him had been finalised.

48 Senior Member Byard and Member McNamara refused Mr Muto's adjournment application, but the gross misconduct proceeding hearing did not proceed because Ms Knowles became unavailable. The Tribunal adjourned both Mr Muto's strikeout application and the Secretary's application to be joined as a party to the serious misconduct proceeding to 12 December 2012.

49 The Tribunal heard the strike out application on 12 December 2012. Mr Muto was represented by Ms Knowles of counsel and Mr S Morris QC. The Secretary was joined as a party to the serious misconduct proceeding. Senior Member Byard and Member McNamara reserved their decision.

50 On 31 December 2012, Senior Member Byard and Member McNamara refused Mr Muto's strike out application in the serious misconduct proceeding. They listed both proceedings for administrative mention on 19 February 2013 and for final directions on 18 March 2013.

51 At the 19 February 2013 administrative mention, the final hearing in each proceeding was adjourned by consent in anticipation of Mr Muto applying to the Court of Appeal for leave to appeal from Ross J's 3 March 2011 orders.

52 Mr Muto filed the foreshadowed application for leave to appeal on 28 February 2013.

53 On 4 March 2013, by consent, both proceedings were again adjourned for administrative mention: this time on 18 April 2013.

54 On 12 April 2013, the day before the scheduled administrative mention, the Court of Appeal granted Mr Muto leave to appeal from the orders of Ross J and went on to dismiss the appeal, although it did set aside one order requiring Mr Muto to take one month's leave of absence. [9]

55 For the purposes of the administrative mention on 18 April 2013, the Secretary and the solicitors for the councillors wrote advising VCAT of their readiness to proceed and sought a hearing date for both proceedings.

56 On 18 April 2013, Lewis Janover wrote to VCAT, advising that Mr Muto was not ready to proceed because he was seeking advice both about the Court of Appeal's decision and in relation to an issue in respect of indemnification for his costs. The Secretary did not receive a copy of Lewis Janover's letter until 29 April 2013.

57 On 3 May 2013, in chambers, Senior Member Byard fixed both proceedings for hearing on an estimate of five days commencing on 6 June 2013. Remarks appended to the orders state that the matters should proceed without avoidable delay and note that Mr Muto would have ample time to pursue the costs indemnity issue under s 76 of the VCAT Act in the meantime.

58 On 9 May 2013, the Secretary received notice that Lewis Janover had ceased to act for Mr Muto.

59 On 21 May 2013, Mr Muto filed an application in the High Court for special leave to appeal from the Court of Appeal's dismissal of his appeal from Ross J's 3 March 2011 decision.

60 On 23 May 2013, Mr Muto told the Secretary that he had emailed the Tribunal, seeking an adjournment of the hearing of the proceedings pending the outcome of his High Court application. The Secretary sought another directions hearing and both matters were listed for directions on 31 May 2013.

61 On 25 May 2013, the Tribunal Book was served on Mr Muto personally.

62 On 31 May 2013, Mr Muto appeared in person at the directions hearing before Senior Member Byard and Member McNamara. He unsuccessfully applied for adjournment on various grounds, including his need to prepare his High Court special leave application. He then applied to the Tribunal for it to be reconstituted under s 108 of the VCAT Act, on the basis of the actual or apprehended bias of the members against him. His assertions included that the councillors knew Member McNamara who had been 'hand-picked' for the hearing

63 Mr Muto sought to have the Tribunal order the transcription of CD recordings which he maintained substantiated his bias allegations. Counsel for the Secretary submitted that the issue of the use of the tapes was a vexed one, as Mr Muto faced charges in the Magistrates' Court and in the County Court relating, in part, to what police were alleging were illegally obtained recordings. The Tribunal should not permit Mr Muto to pursue the application without notice, as he had tried to do.[10] Senior Member Byard responded that, if the material were sought to be adduced, the issues would be dealt with when the case proceeded.[11]

64 When Senior Member Byard indicated that the hearing would proceed on Thursday 6 June, Mr Muto stated that he would make his reconstitution application on Monday 3 June and asserted that an adjournment of the 6 June date would be likely to be required as a result.

65 At the 31 May directions hearing, Mr Muto also told the Tribunal that he did not then have a car and that he travelled by train and could not attend on Thursday 6 June. Senior Member Byard indicated that the proceedings would start on that day. Subject to him being persuaded to alter his previous ruling, the gross misconduct matter would be heard first and relevant evidence in one matter need not be repeated. The fact that Mr Muto needed to attend a mention in a criminal matter on Tuesday 11 June was also discussed.

66 On 3 June 2013, at about 4.00pm, Mr Muto sent an email to the address: 'vcat-admin@justice.vic.gov.au', copied to the solicitors for the Secretary and the councillors. The email requested that the President of VCAT reconstitute the tribunal. It alleged bias on the part of Senior Member Byard and Member McNamara and referred to recordings in Mr Muto's possession allegedly of councillors' discussions of cases and evidence of interference with the selection of VCAT members. Mr Muto also stated that he was preparing his High Court appeal and had no time to prepare for the VCAT proceedings.[12]

67 VCAT arranged for his Honour Judge Macnamara, Vice President and Acting President of VCAT, to hear Mr Muto's reconstitution application at 2.00pm on 4 June 2013. Mr Muto informed his Honour's associate by phone that Judge Macnamara was also biased against him. Judge Macnamara's associate subsequently emailed Mr Muto at 12.10pm, noting their telephone conversation and indicating that the matter would remain listed for 6 June 2013.

68 On 6 June 2013, Mr Muto appeared at the hearing of both proceedings before Senior Member Byard and Member McNamara. He applied unsuccessfully for an adjournment and then for the Tribunal to be reconstituted. He then had the proceedings stood down so that he could apply to the VCAT President for the reconstitution. Acting President Judge Macnamara delegated the application to VCAT Vice-President Judge Jenkins.

69 Notes of the hearing before Judge Jenkins record her Honour stating that the hearing had been delegated to her. Mr Muto submitted that the solicitor, David Faram, had 'steered' the case because he was a good friend of the judge. Judge Jenkins stated that the Tribunal members had said that they did not know the lawyer. Mr Muto claimed that tapes in his possession evidenced that Mr Faram knew the judge and recorded conversations in which the participants were concerned about that fact becoming known.

70 Senior counsel for the Secretary objected that Mr Muto had stated that he did not know who made the tapes. He pointed out that Mr Muto had been served with the tapes before an interlocutory application on 27 August 2012 and yet had failed to make any allegations of bias against the Tribunal Members until 31 May 2013. The allegations of bias had been non-specific and on 6 June 2013 had been to the effect that the Members were corrupt.

71 Judge Jenkins dismissed the application, referred the matter back to the Tribunal for hearing and justified an award of costs against Mr Muto on the bases that:

(a) parties had been unnecessarily disadvantaged by the vexatious conduct of the application;

(b) there had been an unreasonable prolongation of the commencement of the substantive proceedings; and

72 The Tribunal hearing proceeded and Mr Muto unsuccessfully applied for an order that the Council pay his costs and for its joinder to the proceedings. He then sought a short adjournment to obtain legal advice about obtaining a Supreme Court injunction. The Tribunal refused his application and, at about 3.30pm, Mr Muto left the hearing room, saying that he was going to apply to the Supreme Court for an injunction. Senior Member Byard informed him that the hearing would proceed in his absence unless or until the Tribunal was restrained from continuing.[13]

73 According to Mr Muto's 9 September 2013 affidavit, he then went to the offices of Voitin Lawyers, where he was advised by a solicitor that the costs of an application for an injunction would be in the vicinity of $10,000. He left the solicitor's office and went to see his son, and from there went back to Shepparton with some friends.

74 On 7 June 2013, the second day of the hearing, Mr Muto did not appear in person. After the hearing had commenced, however, Ms Cooper of counsel, instructed by Voitin Lawyers, appeared on his behalf to make a further adjournment application, on the basis that he had been taken to hospital. The hearing was stood down to allow Ms Cooper to seek evidence in support of the application.

75 Upon resumption of the hearing, Ms Cooper informed the Tribunal that in fact Mr Muto had been at the surgery of his general practitioner in Shepparton. She produced a medical certificate which Mr Muto deposes and I accept was from Dr Glen Russell, certifying him unfit to attend VCAT that day.[14] The letter stated that he was 'quite agitated and hypertensive (bp134/108) and should not be on the roads', that Dr Russell did not 'feel that his mental state [was] well enough (sic) to represent himself adequately at present' and that he should be fit to resume in July 2013.

76 The Tribunal refused the adjournment application and the hearing continued. Ms Cooper, who had only been briefed to make the application, left.

77 Later, after the Tribunal had adjourned for the day, the Victorian Government Solicitor's Office emailed Mr Muto, advising that the next sitting date would be 12 June 2013, to accommodate his unavailability on 11 June 2013, and giving him an account of events at the hearing on 7 June 2013, including the unsuccessful adjournment application. The solicitor reported that Ms Salomon, Mr Rochfort, Ms Zappala and Ms Crawford had all given evidence and that it was expected that the Secretary would call Mr Polan and Ms Houlihan on Wednesday 12 June when the matter resumed.

78 As a result of an accident, there is no recording and no transcript of the 6 and 7 June VCAT proceedings. Nevertheless, I accept the accuracy of the notes of those days of the hearing made by Daniel McCredden of the Victorian Government Solicitor's Office which are exhibited to the affidavit of Matthew Carrazzo sworn on 18 November 2013.

79 Mr Muto maintains that, on 11 June 2013, under cover of an email sent on his behalf by Ms Andrea Sfetcopoulos of Mickali Properties Pty Ltd, he wrote to Mr Jim Nelms, a Principal Registrar at VCAT, making another adjournment application. He also says that he forwarded a medical certificate from Dr Glen Russell to the effect that he was not well enough to attend the continuing hearing.

80 Ultimately, notwithstanding the evidence he adduces of what appear to be copy printouts of email receipts, I am not satisfied that either any letter from Mr Muto or a letter from Dr Russell were received by VCAT. Mr Muto gave confusing evidence as to the manner in which he said the letters were actually sent. In so far as I understood it, his evidence appeared to be to the effect that Ms Sfetcopoulos had typed a letter and printed it out for his signature and had scanned both it and Dr Russell's letter and transmitted them as part of an email.[15] I am not persuaded that the documents in evidence are printouts of emails to VCAT. As the Secretary points out, there is no reference to any attachment in any relevant document. Further, Mr Muto conceded that one of the exhibited documents relied upon to prove receipt appeared to be a composite of documents copied to form one page.

81 There is no direct evidence that the documents ever came to the attention of the Tribunal. Nor did Mr Muto include the Victorian Government Solicitor's Office, the Secretary's solicitor, as a recipient of any email, despite having done so on previous occasions.[16]

82 It is also significant that Mr Muto failed to call Ms Sfetcopoulos, without explaining her absence. As she was the alleged author of an email and said to be the person responsible for producing and transmitting the documents in question, she might have explained what happened. Mr Muto is the party who would be expected to have called her. In those circumstances, I infer that her evidence would not have assisted him.[17]

83 On 12 June 2013, the hearing continued in Mr Muto's absence. It concluded that day and the Tribunal reserved its decision.

84 On 10 July 2013, the Tribunal made final orders and published its reasons.

85 The reasons record the history of applications for adjournment and reconstitution of the Tribunal on 31 May, 6 June and 7 June.

86 As to the serious misconduct proceeding, they state the Tribunal's conclusion that Ross J's findings of misconduct[18] satisfied s 81A's requirement of a previous misconduct finding and that Mr Muto's subsequent behaviour contravened the Councillor Conduct Principles in s 76B and 76BA of the Local Government Act.

87 In relation to the gross misconduct proceeding, the reasons state that the Tribunal considered Ross J's decision relevant also to an assessment of Mr Muto's subsequent behaviour and his fitness and propriety as a councillor. Similarly, the Tribunal took account of the agreed terms of the apology he had made. The Tribunal considered that earlier misconduct finding relevant as to whether there was any subsequent change or modification to Mr Muto's behaviour. It was also relevant to a determination about his character and fitness and propriety in the context of allegations about his subsequent behaviour.

88 The Tribunal referred to pending charges of blackmail against Mr Muto and the fact that he had been on mandatory leave of absence under the County Court orders made on 21 August 2012. Notwithstanding that, he had been re-elected when his term had expired in November 2012. He had been unable to attend council meetings or participate in them as a councillor. Up to March 2013, he had attended council meetings as a member of the public.

89 The Tribunal summarised the councillors' allegations it found made out as to Mr Muto's behaviour in these terms in para [67] of the Reasons:

Claims of illegality.
Claims of the Council cheating and deceiving the electorate.
Abusing Cr Ryan for being "a joke" and "the biggest monkey in the room".
Accusing the CEO (Mr Pearce) of being "a joke" and "jumping ship" and the Council of being "a Mafia".
Accusing the Council of spending money on "themselves" and engaging in "corruption".
Accusing Mr Parker, a Council employee, of being "a joke".
Telling the Mayor the job was "slightly above your head" and calling him an "albino" and the Councillors "gooses (sic)".
Accusing the Mayor of "lying" and engaging in "a conspiracy".
Accusing Cr Houlihan of lying and referring to Cr Hazelman as "chubby", "obese" and "gutless".
Accusing the Mayor of being "a cheat, a dirty rotten cheat", "a joke, a joke", "cheating your ratepayers", "cheating the community".
Accusing the Mayor that he "couldn't give a shit" about confidentiality, proclaiming bullshit at a special Council meeting and accusing Council Officer Harriott of lying and the whole Council of being "cheats", "a bunch of cheats".
Asserting the Council parking inspectors had "some mental health issues".
Emailing the Acting CEO, Ms Salomon, that she should "shut up" and asserting that "every time this council makes a shocking deal for the rate payers it is deemed confidential. We shall see about that mmm".
Asserting in an email the Council was "dysfunctional" and "disgraceful" and had "personal agendas";
Asserting in an email that the Councillors were "fools";
Asserting in an email that Council officers were "incompetent" and had "personal agendas".
Being glad to see a Council Officer "had to do some actual work today".
Placing various inappropriate signs on his electronic billboard on the Shepparton Hotel.

90 The Tribunal went on in para [68] to summarise the allegations it found proven in relation to the Secretary's application as follows:

On 6 December 2011 at a Council briefing Cr Muto referred to a development contribution being in Cr Crawford's "backyard".
On 6 December 2011 at a Council briefing Cr Muto used a loud and aggressive tone toward Cr Crawford, resulting in her excusing herself.
On 6 December 2011 at a Councillor Short Discussion Session Cr Muto alleged that the General Manager Sustainable Development (Mr Rochfort) was "corrupt".
On 6 December 2011 after an Ordinary Meeting of Council Cr Muto stated when Cr Crawford walked past "mole, slut" and "Cherie Crawford, she's nothing but a fucking slut".
On 20 December 2011, after a Council Meeting, Cr Muto called Cr Crawford a "mole" as she left the Council offices.
On 21 December Cr Muto sent a series of text messages to the Acting CEO (Ms Salomon) making demands, complaints and abuse.
On 21 December Cr Muto telephoned the Acting CEO (Ms Salomon) and used a series of expletives and threatened her.
On 21 December Cr Muto sent the Acting CEO (Ms Salomon) a further text message referring to a "nice sign at the Shepp hotel".

91 In paragraph [81], the Tribunal found Mr Muto responsible for the following signs on an electronic billboard attached to the Shepparton Hotel:

18 April 2011

"Dear old mate, Mayor Dobson how about some

well paid jobs for some of

your mates. SHMUCK".

"Dear Mayor Dobson

You can shift from one diversion to the

next, but you can't divert from the truth,

GUILTY. SHMUCK".

"SHEPP NEWS LIES

MAYOR DOBSON NOT CLEARED

MAYOR DOBSON GUILTY

AS CHARGED".

29 August 2011

"Muto

Defies

the goose".

"Dear Ratepayers

selection of right CEO is imperative

for prosperity of our Municipality.

Disregard the fools".

5 September 2011

"Dear Councillors, we have

60,000 people to worry about in

Greater Shepparton not just me.

Wake up to yourselves! MM".

7 December 2011

"Ladies and Gentlemen

Like we told you

Out with the donkey

In with the shonkey".

We accept that Councillor Muto is responsible for the display and changing messages on these signs. Not only does he own the hotel and the sign equipment, but he has used other methods of communication to draw attention to the signs apparently to ensure that the victims should be aware of them.

93 Having accepted the evidence of the witnesses complaining of Mr Muto's behaviour, the Tribunal went on to say this about Mr Muto's behaviour:

This evidence discloses the characteristic behaviour of Councillor Muto as being repeated and habitually aggressive, threatening and intimidatory, including threats of personal violence. ... His behaviour and language is habitually abusive, insulting, disparaging, disruptive of meetings ... disrespectful and frequently inclusive of unjustified allegations of corruption or incapacity by councillors and professional staff. His behaviour, as disclosed in the evidence, is consistent with him habitually deriving enjoyment from shocking people by making extravagant and untrue statements and accusations in public.
Although there was a brief improvement upon his return to councillor duties following the constraints imposed by Ross J, this quickly deteriorated so that his previous behaviour was resumed and became worse. Attempts to conciliate him or counsel him orally or in written form particularly by the then mayor or the acting chief executive officer were treated with disdain.
The misuse and wider distribution of private Council emails led to constraints being imposed (after warnings) on his ability to use council communication equipment for such purposes. ...
Councillor Muto refused to respect confidentiality. When confidential papers were circulated for temporary use by councillors for purposes of a closed meeting of the council, Councillor Muto refused to hand back such papers, though all other councillors complied, and took them away retaining them in his own possession.

The behaviour of Councillor Muto became an increasing burden on those subjected to it and handicapped the efficient running of the Council, its administration and its formal and informal meetings. ...
Council staff became frightened, refused to attend briefing sessions or were excused attendance at briefing sessions because of the behaviour of Councillor Muto. Complaints were made through the relevant trade unions. Mr Muto was aggressively abusive about the way that matter was dealt with. Council officers and staff became timid and inhibited in relation to giving frank information and advice when Councillor Muto was present.
He, his conduct, and the Council itself became subject to public notoriety in the Shepparton community and in local government circles in the wider Victorian community. A lot of time was wasted and specifically time and money were wasted on seeking legal advice that would otherwise have been unnecessary. The acting chief executive officer became generally concerned about the occupational, health and safety implications of the behaviour of Councillor Muto towards staff. We accept that that concern was both genuine and justified.
We accept that his presence and behaviour was seriously disruptive and partially crippling of (sic) the attempts of the council, its councillors, staff and officers in carrying out the municipal business of the City of Greater Shepparton.

94 The Tribunal recognised the significance of local democracy and the seriousness of interference with the rights of elected councillors. But the 'heavy and compelling evidence' led it to conclude that Mr Muto was not a fit and proper person to hold the office of councillor. In light of his history, there was no reasonable prospect of change in his attitude or behaviour.

95 The Tribunal concluded that Mr Muto had also engaged in serious misconduct by repeatedly breaching his obligations under s 76B(a) to act with integrity, s 76BA(b) to act honestly, s 76BA(c) to treat all persons with respect, s 76BA(f) to act lawfully and in accordance with the trust placed in him as an elected representative and s 76BA(g) to support and promote the relevant councillor conduct principles to secure and preserve public confidence in the office of councillor.

96 Recognising that the proposed disqualification would prevent Mr Muto from standing at the next municipal elections, the Tribunal nevertheless concluded that that was appropriate.

97 The Tribunal made the orders it did in the serious misconduct proceeding under s 81K(3), suspending Mr Muto from office for six months and ordering him to be ineligible to hold the office of Mayor or chair a special committee for four years, in case its orders in the gross misconduct proceeding should be ineffective.

98 The Tribunal's decision was not the last fact relevant to this application under s 148 of the VCAT Act because Mr Muto sought an extension of time in which to make his application. I will now set out my findings as to subsequent events

99 On 17 July 2013, Mr Muto applied to VCAT for the reopening of the orders pursuant to s 120 of the VCAT Act, on the basis that he had not appeared at the hearing.

100 The application was heard on 26 July 2013 by her Honour Judge Davis, Vice President, and Member Bensz. Mr Muto appeared in person. The Tribunal reserved its decision.

101 On 9 August 2013, Mr Muto applied under ss 50, 118 and 149 of the VCAT Act for a stay of the Tribunal's final orders, pending the outcome of his 26 July 2013 application. He represented himself. His Honour Judge Bowman, Vice President, and Member Hewitt granted a 21 day stay with the option of applying for its extension if the decision in the s 120 application had not been handed down.

102 On 15 August 2013, Judge Davis and Member Bensz dismissed Mr Muto's application premised upon his non-appearance before the Tribunal. They concluded that he had appeared at the hearing and ordered costs against him.[19]

103 Between 15 and 26 August 2013, Mr Muto made various applications for the stay or re-opening of the Tribunal's orders.

104 On 26 August 2013, his Honour Judge Bowman and Senior Member Hewett heard the application for a further stay. Mr Muto, who appeared in person, also made an application for leave to make a second application for rehearing pursuant to s 120 of the VCAT Act. The Tribunal reserved its decision and granted a further stay for 14 days, pending the handing down of that decision.

105 On 11 September 2013, Mr Muto filed his application for leave to appeal in this proceeding.

106 On 13 September 2013, Judge Bowman and Senior Member Hewett dismissed Mr Muto's applications for a further stay and for a rehearing.[20]

107 On 10 October 2013, an Associate Justice of this Court ordered that the 10 July 2013 orders be stayed until 'at least, the hearing and determination of the application for leave to appeal out of time, and at the latest, the hearing and determination of the appeal'.

108 Mr Muto sets out the questions of law he raises in the appeals in his 'Draft Notice of Appeal' dated 11 September 2013.

109 He states the questions of law in relation to both the serious misconduct proceeding and the gross misconduct proceeding by raising issues in these terms:

1. Denial of natural justice s 98 VCAT Act 1998.

2. Tribunal did not act fairly contrary to s 97 VCAT Act 1998.

3. s 124 VCAT Act 1998, has not been applied properly.

4. s 108 VCAT Act 1998, has not been applied properly.

5. s 118 VCAT Act 1998, has not been applied properly.

6. s 102 VCAT Act 1998, has not been applied properly.

7. s 99 VCAT Act 1998, has not been applied properly.

8. s 82 VCAT Act 1998, has been overlooked.

9. s 62 VCAT Act 1998, has been overlooked.

10. Penalty manifestly excessive.

11. s 76 Local Government Act 1989 has been overlooked.

Orders made for the protection for a non-party to the proceedings contrary to common law.

13. Orders of the Tribunal were based on falsehoods.

14. Recordings of the proceedings were denied to the plaintiff.

110 He adds these additional matters in respect of the gross misconduct proceeding:

On the days the Orders were made the Applicant in B87/2012 did not exist.
The concept of entirety relied upon by the Members is a question of law.

111 He also raises the following issues as further questions of law in relation to the serious misconduct proceeding:

Orders made under s 81K(3), are contrary to the Local Government Act 1989.

16. Proceedings in B82/2012 are contrary to Councillor Code of Conduct.

17. On the day of the Orders the Applicant in B82/2012 did not exist.

112 The grounds of appeal which follow the statement of the questions are contained in some 64 paragraphs which need not be set out in full here. I will deal with the issues they raise when discussing the questions themselves.

(a) his affidavits sworn on 9 September 2013, 1 October 2013 and 2 November 2013;

(b) transcript of a VCAT directions hearing on 31 May 2013;

Mr Muto's affidavits include inadmissible statements of opinion and submissions. As he is self-represented, the Secretary properly treated this material as a statement of submissions and I do the same.

114 The Secretary relies upon the following affidavits (or their exhibits, where the affidavit material is objectionable):

(a) Alicia Mary Robson, solicitor for the Secretary, sworn on 19 September 2013 and 14 February 2014;

(b) Matthew Carrazzo, solicitor of the Secretary, sworn 18 November 2013;

(c) Ian Charles Ritchie, the councillors' solicitor, sworn on 19 September 2013; and

(d) Ross David Millard, Acting Chief Municipal Inspector of the Local Government Investigations and Compliance Inspectorate, sworn on 28 February 2014 and 8 April 2014

115 Mr Muto first successfully sought an extension of the 28 day time limit for the making of an application for leave to appeal imposed by s 148(2) of the VCAT Act. These are my reasons for granting the extension.

116 At the 9 August 2013 hearing of his first stay application, the defendants conceded that time for the filing of his application for leave to appeal commenced had to run on 16 July 2013: being the latest day upon which he would have received the Tribunal's orders.[21] The Secretary adhered to that concession before me.[22] The agreed time for filing the application therefore expired on 13 August 2013.

117 Mr Muto did not persuade me either that time did not commence to run until the 14-day stay granted by Judge Bowman had expired on 13 September 2013 or that the issue of extension of time had been 'wiped out' because Daly AsJ's order fixing the application for leave to appeal and appeal for hearing did not specifically refer to the extension of time. I also rejected his argument that the orders were not 'final' because of any application for their amendment under s 119 of the VCAT Act. I note that Mr Muto relied in this regard upon a copy letter dated 16 July 2013 from the VGSO to the VCAT Registry drawing attention to 'a minor slip' in the appearances as recorded in the Tribunal's reasons.

118 It was not disputed that the purpose of the Court's discretion to extend time is to do justice between the parties.[23] The relevant factors to consider include the length of the delay, the reason for it, whether there is an arguable case and the extent of any prejudice to the respondent.[24] It is also relevant to consider whether the delay was intentional, or the result of a bona fide mistake.[25]

119 Mr Muto filed his application on 11 September 2013, a little less than a month out of time: as it had been agreed. He submitted that the delay in filing his application was not considerable and that the reason for the delay was that he had been unwell. He relied on medical certificates.[26] He deposed, too, that he had believed that an effect of Judge Bowman's grant of a 14 day stay was to freeze the time for the making of any application for leave to appeal.

120 The Secretary submitted that there was no satisfactory reason for the delay and that Mr Muto had apparently made a conscious decision not to commence the proceeding in time. He had received a copy of the orders on 15 July 2013 and had understood that he had 28 days in which to apply for leave to appeal.[27] The filing of the application out of time was to be seen against the history of delays in the VCAT proceedings. Counsel for the Secretary further submitted that an extension of time would potentially occasion severe prejudice to the defendants, due to the nature of the proceedings and the stress and disruption that might be caused to the councillors in particular. Finally, the Secretary argued that Mr Muto had not demonstrated an arguable case.

121 Having taken into account all the written and oral submissions, I was satisfied that I should exercise my power under s 148(5) to extend time.

122 I accept that there was some uncertainty on Mr Muto's part as to the length of the relevant period. The application was also made only about one month out of time, which is not a long delay. Any prejudice to the defendants of the kind described by counsel for the Secretary would have been suffered equally had the application been made within the 28-day limit. Such prejudice results from the combination of circumstances, not from the delay itself. Further, the defendants were aware at least as at 30 August 2013 that Mr Muto believed that there were issues with regard to the period of time he had had to make his application.[28]

123 Whilst the application for leave to appeal had only very limited prospects of success, I took the view that some of Mr Muto's points were arguable and that, in all the circumstances, I should exercise my discretion to grant an extension of the time for the leave application.

124 Every application for leave depends on the justice of the particular case and the decision is discretionary.[29] Whilst the discretion cannot be fettered, the following principles nevertheless apply to applications under s 148:

(1) the applicant must identify a question of law arising out of the decision;

(2) the question must be such that if VCAT erred in respect of it, the applicant's claim would be advanced;

(3) the applicant must show that the VCAT decision is attended by sufficient doubt to justify the grant of leave or that there is a real or significant argument to be put on the question of law; and

(4) it must be just to all parties to grant leave.[30]

125 I agree with the Secretary that none of Mr Muto's proposed grounds of appeal gives rise to sufficient doubt as to the validity of the VCAT orders to justify a grant of leave.

Proposed grounds 1 and 2 - denial of natural justice and unfairness by failure to adjourn and bias, and proposed ground 6 - denial of opportunity to give evidence

127 It is convenient to deal with these proposed grounds together.

128 Mr Muto complains that he was denied procedural fairness or natural justice by the Tribunal's failure to adjourn the hearings on 6, 7 or 11 June 2013 and to give him the opportunity to adduce evidence and examine witnesses. It is the refusal of the adjournment which essentially underpins his arguments that he was denied these entitlements.

129 There is no doubt that the Tribunal was required to act fairly and in accordance with the substantial merits of the case under s 97 of the VCAT Act, to comply with the rules of natural justice under s 98 and to give Mr Muto a reasonable opportunity to adduce evidence and examine, cross-examine and re-examine witnesses under s 102.

130 The content of the rules of natural justice may vary according to the circumstances of the particular case.[31] As the Secretary submits, the Court must consider the realities of the situation when determining what fairness requires in those circumstances.[32]

131 In this case, the content of the rules of natural justice and the requirements of fairness must be considered in light of:

(a) the long procedural history of the VCAT proceedings;

(b) the numerous previous adjournment applications by Mr Muto;

(d) the fact that Mr Muto had been unrepresented at times.

132 I am satisfied that Mr Muto voluntarily withdrew from the hearing on 6 June after failing to obtain an adjournment or reconstitution of the Tribunal. He was aware that the proceedings would continue and indeed had indicated his intention to seek an injunction restraining the Tribunal from continuing.

133 The obligations of natural justice did not compel the Tribunal to ensure that he took best advantage of the opportunity to present his case.[33]

134 The granting of an adjournment is a discretionary remedy. No one set of considerations is determinative and the decision-maker has some latitude in relation to the decision. In Aon Risk Services Australia Ltd v Australian National University,[34] the High Court held that:

there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system.[35]

135 In Macdiggers Pty Ltd v Maria Dickinson & Peter Dickinson,[36] Warren CJ said this in a case where a litigant in person had been denied an adjournment:

Justice is the paramount consideration. Various factors will weigh in the determination of what is just in the circumstances, including of course 'the litigation strain' to all involved, the prejudice to the applicant if refused, the prejudice to the respondent if granted, and the appropriateness of a costs order. The decision whether to exercise the discretion to grant and adjournment is not a situation to punish an applicant for any mistake or otherwise but to ensure a fair and reasonable hearing.[37]

136 As the Secretary points out, by the time Mr Muto was requesting adjournments in May and June 2013, he had had the benefit of legal representation for the preparation of his case from early August 2012 to early May 2013, including at the time when witness statements had been filed. He had also had more than three weeks since his solicitors had withdrawn to prepare to represent himself in a case where he was the principal witness and had known all the allegations against him since April 2012.

137 I agree with the Secretary that the medical evidence Mr Muto relied upon on 7 June 2013 was not such that it could be said that the Tribunal had denied him natural justice in refusing an adjournment on the basis of it. Mr Muto had not referred to illness when he left the hearing on 6 June 2013 or beforehand. The letter upon which counsel relied on 7 June 2013, from the general practitioner, referred to him being 'quite agitated and hypertensive' and stated that he 'should not be on the roads'. As I have said,[38] Mr Muto's own statement to the Tribunal had been to the effect that he did not have a car at the time and travelled by train to Melbourne. Whilst the doctor said that he did not 'feel that his mental state is well enough to represent himself adequately at present', no further detail had been provided and there was no other evidence of a psychological or psychiatric opinion.

138 Significantly, there was a strong public interest in the proceedings against Mr Muto continuing. The reasons I have quoted state the Tribunal's findings that the proper operations of the Council were being hampered by Mr Muto's activities.[39] Council employees and others involved in local government were being deleteriously affected and the allegations related to a lengthy period of misconduct.

139 Nor was it submitted to the Tribunal that an adjournment was justified on the basis that evidence crucial to Mr Muto's case would shortly be available to him.[40]

140 In all the circumstances, Mr Muto has failed to establish the requisite arguable case that he was denied natural justice or procedural fairness when he was refused adjournments on 31 May or 6 June 2013 or was denied the opportunity to present evidence or cross-examine the witnesses called by the Secretary or the councillors.

141 As far as the continuation of the proceeding on 11 and 12 June is concerned, I am not satisfied that any application for an adjournment or material Mr Muto sought to rely upon was brought to the attention of the Tribunal. I note in this regard too that he did not appear, represented or unrepresented, to seek the adjournment or even attempt to bring relevant material and any adjournment application to the attention of the solicitors for the Secretary or the councillors.

142 In the circumstances, he has not made out a real or significant argument to be put on the questions of law relating to the Tribunal's failure to adjourn the hearings identified in proposed grounds 1, 2 and 6.

143 Mr Muto also alleges that the Tribunal was actually biased against him or that there would have been a reasonable apprehension of bias on its part. This was the basis for his argument for it to be reconstituted.

144 He relies upon the evidence of the Tribunal refusing to have regard to evidence he sought to adduce of that alleged bias by way of recordings of unidentified persons having conversation, the provenance of which he could not demonstrate. He submitted to the Tribunal that the alleged conversation referred to friendship between Mr Faram and a Tribunal member. The evidence is to the effect that the members had denied knowing the solicitor.[41] Mr Muto also submitted that it had been suggested in the conversation that Member McNamara had been 'hand-picked' to hear the cases. The Tribunal members denied any actual bias and concluded that there were no grounds for apprehended bias.

145 Mr Muto concedes that police had provided him with the tapes upon which he sought to rely to establish bias between the end of May and 1 July of the previous year: 2012.[42] The Tribunal had been constituted by Senior Member Byard and Member McNamara in the gross misconduct proceeding at least since the first hearing date in that matter on 27 August 2012. At that time, Mr Muto had been represented by Mr Barrett and had obtained an adjournment to extend the time for him to file his affidavit material in response to the Secretary's application and, despite having received the tapes, he had not made a reconstitution application on the grounds of bias or at all.

146 As the Secretary submits, this evidence from Mr Muto falls well short of establishing either actual bias or that there might be a reasonable apprehension that the Tribunal Members were biased. It is made up of his own unsubstantiated assertions about evidence considered inadmissible. Mr Muto has failed to demonstrate any real or significant argument in support of any ground based on bias or apprehended bias.

Proposed ground 3 - Tribunal's failure to apply s 124 of the VCAT Act and make declaration as to costs

At a glance

Court

Decision date

Before

Source

Judgment (347 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (10)