Santamaria v Secretary to Department of Human Services [1998] VSC 107

Supreme Court of Victoria|1998-10-15|Before: Balmford, J.

ADMINISTRATIVE LAW - plaintiff sought an order in the nature of certiorari to quash a decision of the AAT on the grounds that the Tribunal failed to hear the plaintiff's application for an adjournment fairly or in accordance with the rules of natural justice or failed to accord the plaintiff a proper opportunity to be heard - plaintiff had expressed his unwillingness to proceed without legal representation - Tribunal directed he had closed his case - consideration of case law regarding the obligations of a court or tribunal to an unrepresented party.

Santamaria v. Secretary of the Department of Human Services [1998] 2 VR 296

City of St Kilda v. Evindon Pty Ltd [1990] VicRp 67; [1990] VR 771

National Companies and Securities Commission v. News Corporation Ltd

Bausch v. Transport Accident Commission (1996) 11 VAR 117

Markovic v. Ford Motor Company [1998] 1 VR 235

State of Queensland v. J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146

Spano v. Estate Agents Board (Full Court, unreported, 4 December 1986)

R v. Magistrates' Court at Lilydale; Ex parte Ciccone [1973] VicRp 10; [1973] VR 122

R v. O'Sullivan; Ex parte Clarke [1967] WAR 168

Ex parte Dunn [1906] VR 584

Re Forster and Latrobe University (1990) 4 VAR 138

This is a proceeding by originating motion. The firstnamed defendant, having entered an appearance, informed the Court prior to the hearing that in accordance with usual practice it would not take an active role, but would abide the decision of the Court save any decision as to costs. An affidavit was filed by the solicitor for the secondnamed defendant to the effect that the thirdnamed defendant, namely the Director General to the Department of Human Services, no longer exists, and all of the functions and responsibilities of the Director General are carried out by the secondnamed defendant, namely the Secretary to the Department of Human Services. There was no appearance for the fourthnamed defendant. Accordingly I will, for convenience, refer to the secondnamed defendant as "the defendant".

The plaintiff seeks a number of different remedies. I propose to deal first with the claim for an order in the nature of certiorari to quash the decision of the Administrative Appeals Tribunal ("AAT") made on 17 March 1998 in proceeding number 1995/38833 ("the Decision") on the grounds that the Tribunal failed to hear the plaintiff's application for an adjournment fairly, or in accordance with the rules of natural justice or failed to accord the plaintiff a proper opportunity to be heard.

On 28 November 1995 the plaintiff applied to the AAT for review of what he described as "a decision made by Health & Community Services not to act to protect my child who, I believe, is in serious risk of abuse". "Health & Community Services" is the former name of the Department of which the defendant is the Secretary. That application was struck out "for want of jurisdiction" on 14 March 1996 by the AAT. On 12 May 1997 the Court of Appeal reversed that decision (Santamaria v Secretary of the Department of Human Services [1998] 2 VR 296). The Administrative Appeals Tribunal Act 1984 ("the AAT Act"), pursuant to which those proceedings took place, was repealed with effect from 1 July 1998 by section 310 of the Tribunals and Licensing Authorities (Miscellaneous Amendments) Act 1998 ("the Tribunals Act"), but it is convenient in referring here to the provisions of the AAT Act to use the present tense and I will do so unless it is necessary to do otherwise. The combined effect of the Tribunals Act and the Victorian Civil and Administrative Tribunals Act 1998 is, speaking broadly, to replace the AAT by the Victorian Civil and Administrative Tribunal ("VCAT"). The jurisdiction invoked by the plaintiff is now conferred on VCAT, as it was formerly conferred on the AAT, by the provisions of section 122 of the Children and Young Persons Act 1989 ("the Children Act"), which were amended by the Tribunals Act with effect from 1 July 1998.

Directions as to the hearing of the application were given by the AAT on 29 May 1997 and further directions on 18 July 1997. On the latter occasion the directions were given by the part-time Presiding Member who constituted the AAT for the purposes of the hearing, and to whom it is convenient to refer as "the Tribunal". The matter was set down on that occasion as a 21 day application. On 29 July 1997 the plaintiff was advised that the hearing date was fixed for 22 October 1997. The hearing was subsequently adjourned by consent to facilitate the obtaining of legal aid by the plaintiff.

The hearing commenced on 10 November 1997. The following passage at pages 10-11 of the Decision of the Tribunal describes what occurred:

Apparently the parties had come to an agreement prior to the hearing whereby what I would consider to be an unusual course was adopted, by the respondent presenting its evidence first. Because this course was by consent I allowed it to be followed. At the commencement of the hearing, the applicant announced that he was appearing for himself and Mr Fanning of counsel announced his appearance on behalf of the respondent. The applicant further stated that he would continue to appear for himself until later in the day when a Mr Perkins of counsel would be available. I informed the applicant that I would permit this course to take place and would permit Mr Perkins to subsequently appear for the applicant, on condition that the hearing was at no stage held up as a result of convenience to Mr Perkins and that if the applicant wanted Mr Perkins to appear for him, in the event at any stage during the hearing Mr Perkins was not available, he would have to be ready to appear for himself when the matter was directed to be heard by the Tribunal and so the matter would proceed without Mr Perkins. The applicant then agreed to this condition and opened the case on his own behalf. At the conclusion of the opening of the applicant's case, Mr Perkins of counsel then announced that he appeared on behalf of the applicant. At that point, Mr Fanning commenced calling the respondent's witnesses.

There is some conflict in the evidence as to the dates on which the Tribunal sat, and I note that one of the hearing dates listed at the end of the Decision was a Sunday. However, it is clear that there were three substantial breaks in the continuity of the hearing. As to the first break, the plaintiff states in paragraph 70 of his affidavit that from 14 to 30 November the hearing was adjourned because counsel for the defendant was going on leave. The affidavit in reply of Mr Jordan, a departmental officer who was present for most of the hearing, states:

As to paragraph 70 of the plaintiff's affidavit, I say that the matter was adjourned from the 14th to 30th November 1997 because the time allowed for the hearing of the matter by the Tribunal was limited to 5 sitting days commencing on the 10th November 1997. The 10th to 14th November were the earliest dates available after the plaintiff had sought an adjournment of the hearing on 22 October. The hearing resumed on 30th November as this appeared to the Tribunal to be the earliest date available to the Tribunal after the hearing adjourned after 14th November.

That paragraph, which does not state the reasons why the dates between 14 and 30 November were not available for the hearing, is not inconsistent with the statement of the plaintiff. Had the adjournment not been related to the leave of counsel for the defendant, this could have been established. A statement by the plaintiff that an adjournment was granted in January because the wife of counsel for the defendant had telephoned him to say that she was sick is the subject of a conflict of evidence and I make no finding thereon. As to the third break, from 10 to 31 January, the plaintiff and the Tribunal both state that in that period the Tribunal had other commitments. I find that the first extended break suited the convenience of counsel for the defendant, and the third the convenience of the Tribunal. The second break was presumably attributable to the Christmas-New Year holidays.

After the passage cited in paragraph 5 above, the Decision continues:

The hearing of this application took some 30 days, which in my view was a time far in excess of what was needed. The excessive time that this application took was largely caused by the conduct of both the applicant and his counsel. The line of questioning asked by Mr Perkins would have been more appropriate to an enquiry into the working of the respondent rather than this type of application. I expressed this sentiment to Mr Perkins on many occasions, but such expression seemed to have little effect. Mr Perkins cross-examined the respondent's witnesses at length frequently asking irrelevant questions which did not pertain to the issue in dispute in the application. On many occasions, I would indicate to Mr Perkins that his questions were irrelevant, or not helpful. When I attempted to stop him asking further questions on a particular topic, he would frequently then make very lengthy submissions as to why he should be asking such questions. Such submissions usually did not assist the matter. Therefore, on many occasions, I decided, that even though the questions were irrelevant and/or not helpful, I did not stop the questions being asked because in order to do so would have taken far more time than allowing the questions to be put.

Further, Mr Perkins' cross-examination of nearly all the witnesses called to give viva voce evidence was repetitious and he frequently went back over the same topic on several occasions. When I would tell him to stop this conduct, again he made long submissions about the matter, so I again frequently decided that it would be quicker just to let the cross-examination continue.

On frequent occasions, either Mr Perkins or the applicant would arrive late at the Tribunal. On many occasions, such lateness would be up to 15 minutes. Even though I informed Mr Perkins that he should arrive on time and if he or his client were not going to be on time, the Tribunal should be informed. He nonetheless continued to frequently be late.

When Mr Fanning was either re-examining his own witnesses or cross-examining the only two witnesses that managed to be called by the applicant, there were frequent objections by Mr Perkins. Most of the time the objections were completely unfounded. However, he would argue the objections at length. As a consequence, it often became necessary for Mr Fanning to go back over matters which he had started to cross-examine in order to maintain continuity in his cross-examination.

At times when I made rulings in relation to objections or admissibility of evidence or other matters, after the ruling was made, Mr Perkins would argue with the same. Even though I would tell him that the ruling was made he frequently still continued to argue.

On Wednesday 11 February 1998 Mr Perkins informed the Tribunal that he would be unavailable for part of Friday 13 February, when he was listed in a part-heard criminal case, and on Monday 16 February when he was concerned in a costs matter. He also said that he had a personal matter coming on for hearing on Wednesday 18 February. The Tribunal indicated that he was very concerned about getting the matter finished, and reminded Mr Perkins of what he had said to his client on the opening day of the hearing, cited in paragraph 5 above. After discussion, the Tribunal said, "Certainly, the criminal matter, I will give you a couple of hours for that one. The rest, I will make no comment on at this stage . . . my inclination is it should run until it's complete." There was some more inconclusive discussion about how the rest of the hearing should be conducted, and the matter was adjourned.

When the hearing resumed on 12 February, and again just before the luncheon adjournment, the Tribunal asked Mr Perkins what time he would need the next day, but Mr Perkins was unable to assist him. At the end of the day one of the plaintiff's witnesses, Dr Gajzago-Smith, was being cross-examined by counsel for the defendant.

When the hearing resumed on the morning of 13 February, neither Mr Perkins nor his client appeared. Counsel for the defendant indicated that Mr Perkins had rung him to say that he was at Heidelberg Magistrates' Court and expected to be at least a couple of hours. The matter was adjourned until 2.15. When the hearing resumed neither Mr Perkins nor his client nor the witness was present. There is no suggestion that Mr Perkins' instructing solicitor was present or expected to be present at any relevant time. The Tribunal ordered that the matter be adjourned until Monday 16 February at 10 a.m., with costs of the defendant thrown away by the applicant's non-attendance on the afternoon of 13 February to be reserved against Mr Perkins. The Tribunal directed that copies of those orders be faxed to Mr Perkins and his client. The plaintiff received the fax and discussed it with Mr Perkins.

When the hearing resumed on Monday 16 February, neither Mr Perkins nor the witness was present. In paragraph 89 of his affidavit, which is uncontradicted, the plaintiff says that the Tribunal:

chastised me for not being at the Tribunal on 13 February 1998. I sought to explain my understanding of his directions. He did not allow me properly to address him. He criticized my barrister. He was angry. He raised his voice and yelled at me and assumed an aggressive posture, leaning over his table towards me.

The first three pages of the transcript (pages 236-238) read:

The Tribunal: Yes, I gather Mr Perkins is not here, Mr Santamaria.

The Tribunal: You're aware of the orders that were made on Friday?

Mr Santamaria: I became aware of that on Friday evening.

The Tribunal: Why weren't you here at 2:15, Mr Santamaria?

The Tribunal: I don't recall excusing you, Mr Santamaria.

Mr Santamaria: I don't understand what you're saying. I didn't...

The Tribunal: The situation, when you have got a hearing, when you have got a part-heard matter, you come unless you're excused and you be prepared to go unless you're excused with your witness. It has been very inconvenient by you not being here.

Mr Santamaria: My understanding was that we were to have the tribunal informed as well as...

The Tribunal: The understanding was Mr Perkins could have 2 hours and he used his 2 hours in the morning. That was the clear understanding, Mr Santamaria - clear.

The Tribunal: Have you got any witness ready to go now?

Mr Santamaria: I would be seeking adjournment today, sir.

Mr Santamaria: That I do not have representation and I believe it is unfair and unjust to proceed having the matter part-heard, having the matter where a witness is in cross- examination that has not been completed. I think it is highly inappropriate for me to continue under this basis.

The Tribunal: Is that your submission, Mr Santamaria?

The Tribunal: Is that your submission for an adjournment?

Mr Santamaria: There are a number of matters. We are clearly wanting this matter to proceed as early as possible and as quick as possible.

The Tribunal: What's that to do with an adjournment? Look, speak relevant to the adjournment, don't speak - there's no need to pad out your application.

The Tribunal: Well, if you speak to the matters relevant to the adjournment.

Mr Santamaria: It would seem that there are a number of cases that I could cite where it would be unfair and unjust to proceed without counsel representing myself for this application.

The Tribunal: Mr Santamaria, your counsel has chosen not to be here.

The Tribunal: Well, he has chosen not to be here. He has got a hearing part-heard, it's in the running. He could have applied for an adjournment elsewhere, which may or may not have been given. He has chosen not to be here. You knew, because I told you at the very beginning of this hearing, Mr Santamaria, that if you employed Mr Perkins as counsel I wasn't going to put up with him coming and going. I made this very clear last week again, and I don't believe this application has any grounds. The matter will proceed.

Mr Santamaria: Well, I cannot proceed, Your Honour.

Mr Santamaria: I seek to renew the application for adjournment.

The Tribunal: No, you can't renew it. You have made your application and your application for an adjournment has been dismissed.

Mr Santamaria: I renew that application, sir, and I seek ...

The Tribunal: I don't want to hear the cases, Mr Santamaria.

The Tribunal: No, I'm not taking a submission in writing. I have heard your application for an adjournment.

Mr Santamaria: You have not heard my application, sir. I have not completed my application.

The Tribunal: Well, I have heard it and I have dismissed the application for an adjournment, Mr Santamaria.

Mr Santamaria: I would like to renew my application against ...

The Tribunal: It's dismissed, you're not renewing it. Could you call your witness, please.

Mr Santamaria: I think you're being highly unfair, sir.

The written submission referring to a number of cases, which the Tribunal refused to receive, is before the Court as exhibit AS 9.

The Tribunal then asked the plaintiff to call his witness. When he replied that he could not, the Tribunal said to counsel for the defendant "Do you have an application to make?" an expression which is unlikely to have had any meaning for the plaintiff. The plaintiff asked leave to get some legal advice, and this was refused. That request was repeated and again refused. At no stage did the Tribunal ask how long an adjournment the plaintiff would require to obtain legal advice. The offer from the Tribunal to counsel for the defendant was repeated. The Tribunal reiterated several times that the plaintiff's application for an adjournment had been rejected, and that the plaintiff could have five minutes, solely for the purpose of arranging to get the witness, who, the plaintiff had explained, was on standby in Carrum, to the Tribunal.

The matter was stood down, but the plaintiff was unable to reach the witness. At the resumption, there was some discussion and the plaintiff indicated that he had six more witnesses to call. The Tribunal suggested he proceed with his next witness and the plaintiff said that he did not think it was appropriate for him to continue without counsel. The Tribunal replied that the matter was going to proceed until the conclusion of the evidence. After discussion, the matter was stood down for fifteen minutes. The plaintiff established contact with his witness, and the matter was stood down again pending her arrival.

When the hearing resumed, the transcript reads:

Mr Santamaria: Sir, in the break I have considered my position and I think it is highly unlikely that I would be able to proceed without counsel representation for the complex issues involved. I ask again - - -

The Tribunal: No, you're not getting an adjournment. That application has been dealt with.

Mr Santamaria: There are a number of cases that I just wish to cite - - -

The Tribunal: Look, the situation is that - I'm familiar with the cases on this matter, Mr Santamaria.

The Tribunal then proceeded to refer to the behaviour of Mr Perkins. The plaintiff reiterated his application for an adjournment, which was again rejected. The Tribunal directed the plaintiff to call his witnesses, and he said that he could not proceed without counsel. This dialogue was in effect repeated several times. The plaintiff suggested that leeway had been given to counsel for the defendant in respect of leave, (and the other matter which is denied by a witness for the defendant, as to which see paragraph 6 above) and the Tribunal replied:

Well, your counsel has also been given a lot of leeway earlier on. He got leeway because he needed to go to Canberra in a matter, he got leeway to do other matters in other places. There has been equal leeway given, Mr Santamaria, and I made it clear last week that nothing further would be given.

After discussion between the Tribunal and counsel for the defendant, the Tribunal put to the plaintiff that he was not calling further witnesses, and the plaintiff said that that was not his position, but that he had considered it inappropriate for him to have no representation. The Tribunal said that if that was the plaintiff's position, he took it that he was not calling any further evidence, that either the evidence would finish that day or he would be allowed to call evidence that day. The plaintiff said that he had indicated his position.

The Tribunal then told the plaintiff that he had formally closed his case. After discussion as to the manner of making submissions it was ordered that each party file and serve written submissions on or before 2 March 1998 and submissions in reply on or before 10 March 1998. The plaintiff took part in the discussions, agreed to the form of the orders as to written submissions, and took pains to understand what would be required, without, however, resiling from his position as previously indicated. The Tribunal indicated, in response to a query from counsel for the defendant, that he would provide his decision as expeditiously as possible. He thought that it would take at least four weeks from the filing of the written submissions , but if he could do it in two or three weeks the parties would have it then.

The defendant filed and served submissions on 2 March 1998. No submissions were filed or served by the plaintiff. This proceeding was issued on 5 March 1998, and the plaintiff's supporting affidavit filed on 24 March. The Decision of the Tribunal affirming the decision of the defendant and dismissing the plaintiff's application was delivered on 17 March. It is that decision which the plaintiff here seeks to have quashed.

I should make it clear that I am not concerned with the propriety of Mr Perkins' behaviour on the relevant days. I have not considered the evidence going to that matter, and I make no finding thereon. I am concerned with the application of the plaintiff, who on 16 February was, it must be emphasised, in the position of an unrepresented party to litigation. It has not been suggested that he had himself played any part in his being placed in that position. Section 34 of the AAT Act expressly provides that at the hearing of a proceeding before the AAT a party to the proceeding may appear in person.

Section 35 of the AAT Act provides that the procedure of the AAT, subject to that Act and regulations and any other enactment, is within the discretion of the AAT, and empowers the member presiding to give directions as to the procedure at the hearing, and to vary or revoke such directions.

In this case the Tribunal had, as set out in paragraph 5 above, given a firm direction at the opening of the hearing as to the manner in which he would proceed if Mr Perkins was absent on any occasion, and on 16 February he referred more than once to that direction. However, it is apparent from paragraphs 8 and 15 above that he had in fact not consistently conducted the matter in accordance with that direction, which he was in any case empowered to vary or revoke.

Section 35(1)(b) of the AAT Act requires that the proceeding be conducted:

with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit.

However, that provision does not absolve the Tribunal from observing the requirements of procedural fairness, and indeed the audi alteram partem rule is expressly imported into the AAT Act by section 44 which provides:

Subject to [certain provisions not here relevant] the Tribunal shall ensure that each party to a proceeding before the Tribunal is given a reasonable opportunity to present the case . . .

In terms of section 44, Ms Warren, for the defendant, submitted that, given the time which had already been devoted to the matter, the plaintiff had already, by 16 February, been given a reasonable opportunity to present his case. However, it is clear from the transcript that as at that date it was envisaged by all concerned that he would be calling more witnesses, and there was no suggestion that the Tribunal was of the view that he should be refused further time on that ground.

In City of St Kilda v Evindon Pty Ltd [1990] VicRp 67; [1990] VR 771 at 775-6 the Appeal Division of this Court (Kaye, McGarvie and Ormiston JJ) said, quoting Gibbs CJ in National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296 at 311-12:

The authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise. Moreover, as Stephen J said in Salemi v McKellar [No.2] [1977] HCA 26; (1977) 137 CLR 396, at p.444, the rules of natural justice `may also vary from case to case although each be conducted before one and the same tribunal or person'.

Looked at in that way there is nothing to suggest that the fairness required of the [Administrative Appeals] tribunal by the principles of natural justice is significantly different in nature from what would be required of the judges of a court hearing any proceeding. The statutory provisions give the tribunal a court-like function in hearing appeals. As in the case of a court, it is the duty of the tribunal within its area to administer justice according to the law. That duty carries particular obligations: . . .There is nothing about the nature of the tribunal, its inquiry, the power it exercises or the statutory provisions applying to it which would make it appropriate that the practices it should follow to accord natural justice be significantly different from those a court would be expected to follow: contrast R v Brewer; Ex parte Renzella [1973] VicRp 36; [1973] VR 375.

We apply to the decision of a member of the Administrative Appeals Tribunal the principles which apply to a judge. . . .

Practical precepts for the conduct of judges and other judicial officers in relation to the hearing and determination of cases have evolved from judicial experience over the centuries. Their primary objective is to ensure that not only do the parties receive a fair hearing and determination of their cases but that situations are avoided which are likely to produce reasonable doubt that a party will receive or has received a fair hearing and determination.

In Bausch v Transport Accident Commission (1996) 11 VAR 117 at 143 Eames J said:

As noted earlier, the particular principles of procedural fairness which apply to the Tribunal might vary according to many factors, including the circumstances of the case and the rules under which the Tribunal was acting: see City of St Kilda v Evindon Pty Ltd [1990] VicRp 67; [1990] VR 771 at 774. Although I do not decide this question, it may be thought that one relevant consideration bearing upon the content of the applicable rules of procedural fairness would be the fact that parties before the Tribunal are represented by experienced legal representatives . . .

Mr Santamaria had, by 16 February, spent many days sitting in the AAT instructing counsel during the hearing of the matter with which he was concerned. Nevertheless, that does not mean that he was competent to proceed with the case without legal advice and assistance. He was, as I have said, on that occasion an unrepresented litigant, and as such in a difficult position.

In Johnson v Johnson (1997) FLC 92-764 the Full Court of the Family Court (Ellis, Baker and Lindenmayer JJ) had occasion to consider the obligations of a trial judge when a litigant in person appears in that court in a matter concerning children. I should say, that in the present matter Mr Perkins relied on the fact that the proceedings in the AAT concerned the welfare of a child, as relevant to the approach which this Court should take to the matter before it. I do not consider that matter to be relevant to the issue before me, and in citing the passage from Johnson v Johnson I do so because it sets out, in my view, an appropriate description of some of the obligations of a court or a tribunal to an unrepresented party, and not because it was enunciated in the context of proceedings concerning children. Their Honours said at page 84421 that those obligations were:

1. to inform the litigant in person of the manner in which the trial is to proceed, the order of the calling of witnesses and the right which he or she has to cross examine the witnesses;

2. to explain to the litigant in person any procedures relevant to the litigation;

3. to generally assist him or her by taking basic information from witnesses called, such as name, address and occupation;

4. if a change in the normal procedure is requested by the other parties, such as the calling of witnesses out of turn, to explain to the unrepresented party the effect and perhaps the undesirability of the interposition of witnesses and his or her right to object to that course;

5. if evidence is sought to be tendered which is or may be inadmissible, to advise him or her of the right to object to inadmissible material, and to enquire whether he or she so objects;

6. if a question is asked, or evidence is sought to be tendered in respect of which the litigant in person has a possible claim of privilege, to inform the litigant of his or her rights;

7. to ensure as far as possible that a level playing field is maintained at all times;

8. to attempt to clarify the substance of the submissions of unrepresented parties, especially in cases where, because of garrulous or misconceived advocacy, the substantive issues are either ignored, given little attention or obfuscated (Neil v Nott [1994] HCA 23; (1994) 121 ALR 148 at 150).

It is undesirable for legal advice to be given to the litigant in person, essentially for the following reasons:

(a) it may be unfair or have an appearance of unfairness to the other parties; and

(b) the advice given may not be with full knowledge of the facts.

There are other matters which I would add to that list, but as they would not be here relevant I will refrain from doing so.

In the present context, the most important of those obligations is number 7 - to maintain a level playing field. The plaintiff may well have felt, given the attitude of the Tribunal when the hearing resumed on 16 February, as appearing from paragraphs 12 and 13 above, that he would not receive from the Tribunal the kind of assistance contemplated by the Court in Johnson v Johnson, and that he should necessarily apply, as he did, for an adjournment to enable him to seek legal advice. I note that in paragraph 92 of his affidavit, which is uncontradicted, he says of his feelings when the Tribunal refused to allow him to make a submission in writing:

I was confused and upset. The case involves my son who I believed was, and is, at significant risk of abuse. I had been legally represented throughout the whole hearing. The Department had legal representation. I wanted to be legally represented. I did not want to risk running the case myself. I was afraid.

At that stage, it was envisaged that the cross-examination of the plaintiff's witness, Dr Gajzago-Smith, would proceed. Without legal representation, the plaintiff would have been prejudiced by his lack of knowledge as to when to object to questions, and as to his entitlement to re-examine. While the AAT is not bound by the rules of evidence (section 35(1)(c) AAT Act), it has been said by Judge Jones, then President of the AAT, that very often the hearing is conducted in a similar manner to a court hearing, and it is therefore appropriate that the AAT be guided by the procedures and principles that are followed by the courts (Re Forster and Latrobe University (1990) 4 VAR 138 at 146; see also Re Asmar and Transport Accident Commission (1989) 3 VAR 1 at 2 per Galvin DP). In the events which happened, that cross-examination did not proceed, and the value of the evidence of Dr Gajzago-Smith was thereby lessened. The Tribunal took this into account, and expressly stated at page 35 of the Decision that he would give her evidence limited weight. The plaintiff's remaining six witnesses were not called at all.

The plaintiff has to discharge the burden upon him of establishing that on 16 February he was denied procedural fairness by the Tribunal, in that his application for an adjournment to obtain legal advice was rejected, and when he reiterated that application and expressed his unwillingness to proceed without legal representation he was directed that he had closed his case; and that he was similarly denied procedural fairness by the Tribunal's proceeding to determine his application following those orders. (See R v Marshall and Others; Ex parte Baranor Nominees Pty Ltd [1986] VicRp 2; [1986] VR 19.) I am satisfied that he has discharged that burden. As Brennan, Deane and McHugh JJ said, in the majority in the High Court in Sali v SPC Ltd [1993] HCA 47; (1993) 67 ALJR 841 at 845:

It is true that it is only in extraordinary circumstances that the interests of justice will be served by a refusal of an adjournment in a case such as the present where the practical effect of the refusal is to terminate the proceedings.

The majority there found that the refusal of the Full Court to grant an adjournment was justified in the circumstances of that case.

I should say that I do not consider that by acquiescing in the arrangements for written submissions, once those orders had been made, the plaintiff can be said to have acquiesced in the making of the orders. He had continued to object to the refusal of the adjournment, and to seek the re-opening of his application; and when it was put to him that in effect he was closing his case, he maintained his position that it was inappropriate that he proceed without legal representation. Once the orders were made, he was in the position, without legal representation, of having to deal with the situation in which he found himself, and he therefore participated in the discussion as to the times for lodging of written submissions. He did not in fact lodge any submissions.

In Sali v SPC (supra) the majority said at 843-4:

In determining whether to grant an adjournment, the judge of a busy court is entitled to consider the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties.

Toohey and Gaudron JJ, although dissenting on the matter before the court, were in agreement with that general view. The Tribunal, at page 15 of his Decision, referred to the comments of Tadgell JA in Markovic v Ford Motor Company [1998] 1 VR 235 at 239, where His Honour expressed concern at the length of the trial in the court below.

These considerations are, of course, important. However, they do not, in my view, justify the termination of a hearing at short notice and in anger, when the expectation of all concerned has been that it would continue for some time. And I would refer to State of Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 at 154 where Dawson, Gaudron and McHugh JJ said, after referring to Sali v SPC:

Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim.

In the passages from his Decision cited in paragraph 7 above, the Tribunal complained, in effect, of the difficulty which he had in controlling Mr Perkins and of the effect which that had in prolonging the hearing. I can only say that, in the course of the present proceeding, Mr Perkins accepted without hesitation my refusal to reconsider a ruling. I note the following passage from page 10 of the judgment of the Full Court (Crockett, O'Bryan and Tadgell JJ) in Spano v Estate Agents Board (unreported: delivered 4 December 1986):

. . .we consider that much greater control over and despatch of the appeal by the Board should have been displayed. . . . The repetitious and superfluous examination that proved needlessly time-consuming called for but did not receive ruthless elimination. The [Administrative Appeals] Tribunal must, of course, be ever mindful of the right of a party fully to present his case. However, recognition of that precept can be no excuse for the profligate use of time that occurred in the review.

I mention these matters because of the Tribunal's express inclusion of the material set out in paragraph 7 above and his reference to Markovic. It would appear that the unfortunate events of 16 February can be traced to the Tribunal's concern by then at the time which had already been taken up by the hearing, his view that the responsibility for that matter lay with Mr Perkins, and his disapproval of the behaviour of Mr Perkins on that and the immediately preceding days. This led him to action in which Mr Perkins's client, not Mr Perkins, was the one who suffered. It would seem that by including in his Decision the matters to which I have here referred, the Tribunal was seeking to justify his behaviour. While I am not without sympathy for the position in which he found himself, the results were unfortunate, and the situation might perhaps have been different had he taken a stronger line with Mr Perkins earlier in the hearing.

Ms Warren submitted that the Court should not exercise its discretion to grant certiorari to quash the decision of the Tribunal, because the plaintiff had taken no action to seek injunctive relief or a stay pending determination of this proceeding. By his inaction, she submitted, he had allowed the Tribunal to become functus officio, and certiorari did not lie for him. She relied on the decision of McInerney J in R v Magistrates' Court at Lilydale; Ex parte Ciccone [1973] VicRp 10; [1973] VR 122.

That case is authority for the proposition that certiorari should be refused if it is shown that with knowledge of the facts entitling him to object to a continuance of the legal proceeding, the applicant has not objected but has taken an active part in the proceeding right down to judgment. In that case the relevant facts occurred in the course of a view, prior to the commencement of the actual hearing, which then ran its full course, the applicant being represented by counsel and solicitor.

The position here is very different, as appears from paragraph 32 above. To the extent that the plaintiff participated in the discussion on 16 February as to the preparation of written submissions, he did so without legal advice, and there is no reason to suppose that he was aware of his entitlement to object, to a greater extent than he had already done, to the continuance of the proceeding. Once he had had the opportunity of consulting with his counsel, he took no further part in the proceeding, and lodged no submissions. The present proceeding was issued on 5 March and the Decision handed down on 17 March. I do not consider, in all the circumstances of this case, that failure to apply for injunctive relief or a stay of the decision, justifies the refusal of an order in the nature of certiorari to the plaintiff. In R v O'Sullivan; Ex parte Clarke [1967] WAR 168, to which Ms Warren referred, the decision of the Full Court of the Supreme Court of Western Australia to refuse certiorari was founded on the plaintiff's lack of merit as well as his delay.

Ms Warren submitted further that the conduct of the plaintiff throughout the hearing was such as to disqualify him from discretionary relief and referred to Ex parte Dunn [1906] VR 584 at 596 where Cussen J said:

It was further argued that the conduct of the applicants disclosed in the affidavits, which seemed to show that they had endeavoured to influence a juryman, disentitled them to the writ. But this was the very conduct in respect of which the Court of General Sessions purported to punish them. The conduct operating as a kind of estoppel which induces the Court to refuse a writ of certiorari is something to my mind altogether different from this, such as concealment or misstatement of facts, leading the Court to make the order which it in fact does make.

However, the conduct which led to the Tribunal to take the action which he took on 16 February was not conduct of the kind envisaged by Cussen J; and further, was the conduct of counsel for the plaintiff and not of the plaintiff himself. As I trust I have made clear, in my view that conduct did not justify the actions of the Tribunal and would not justify this Court in refusing discretionary relief to the plaintiff.

Given that the plaintiff still had six more witnesses to call, I must reject Ms Warren's remaining submission, that the decision of the Tribunal would necessarily have been the same even had the events of 16 February and subsequent handing down of the Decision not occurred.

Accordingly, for the reasons given, there will be an order for certiorari to quash the Decision of the Tribunal.

The plaintiff sought a declaration that the Tribunal was not constituted by a person who had or to whom it was open to the President of the AAT to consider had, experience in child welfare matters, as required at the relevant time by section 122(2) of the Children Act. In view of the conclusion I have reached, it is not necessary for me to determine that matter, and there is, in any case, no evidence before me which would enable me to do so. The amendments to the Children Act made as from 1 July 1998 by section 311 and Schedule 1 of the Tribunals Act have the effect that in proceedings before VCAT under section 122 of the Children Act there is no special requirement as to the manner of constitution of VCAT. Accordingly, it is not necessary for me to consider the plaintiff's application for an order requiring the appointment to hear the matter of a person with knowledge or experience in child welfare matters.

Section 119(1)(a) and (b) of the Children Act

The plaintiff seeks an injunction or orders requiring the Secretary to the Department of Human Services to comply, in respect of his child Lyndon Asher Cooper, with section 119(1)(a) and (b) of the Children Act. Those provisions read:

(1) Decisions made by the Secretary as part of the case planning process must, as far as possible, be made according to the following principles -

(a) the welfare and interests of the child must be given paramount importance;

(b) if the child is not living with his or her family, a primary goal is to reunite the child with his or her family if that is for the welfare and in the interests of the child;

Section 122 of the Children Act confers on the plaintiff, as the father of his child, a right to apply to VCAT for review of a decision made in a case plan. In view of the decision which I have reached on his principal claim in this proceeding, that avenue of relief remains open to him. That being so, it is not appropriate that I make an order of the kind which is sought, even if it were possible to formulate orders of sufficient precision to be enforceable, given the terms of the legislation.

The plaintiff seeks orders restraining proceedings by the defendant in the Family Court of Australia concerning his child and quashing or cancelling the Protocol between the Family Court and the Department of Human Services. This Court has no jurisdiction to intervene in proceedings of the Family Court, and there is no ground before me on which I could intervene in administrative arrangements between that court and a department of government of the State of Victoria.

There will be an order for certiorari to quash the decision of the AAT made on 17 March 1998 in proceeding number 1995/38833. The other applications of the plaintiff are dismissed. Counsel may wish to make submissions as to costs.

I certify that this and the 21 preceding pages are a true copy of the reasons for judgment of Balmford, J. of the Supreme Court of Victoria delivered on

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Licensing Authorities (Miscellaneous Amendments)_ Act 1998(Vic)ss 310, 311

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