9. When the hearing commenced on 6 June 2013, Councillor Muto, appearing in person for himself. He made applications seeking delay of the commencement of the hearing of the case and when those applications were refused, he renewed an application he had made at a Directions Hearing on the previous Friday 31 May 2013. On that occasion he had sought adjournments and when that application and another were not successful, he then had sought a reconstitution of the Tribunal for the hearing of these proceedings on the basis of his allegations that each of us was biased against him or might not bring unbiased minds to the determination of the proceedings. That application had been refused on the previous Friday and was refused again when renewed on Thursday 6 June 2013.
10. At the conclusion of the hearing on the Friday, he had said that he would apply to the President of the Tribunal for reconstitution of the Tribunal for the purpose of these proceedings on the basis of such alleged bias or ostensible bias. Arrangements were made by the Tribunal for the hearing of such a foreshadowed application on the afternoon of Tuesday 4 June 2013. As the President of the Tribunal was on leave or otherwise absent from the Tribunal during that week, arrangements were made for the Acting President, Vice President Judge Michael Macnamara, to hear that matter. The other parties' representatives made themselves available but Councillor Muto declined to appear and take advantage of that opportunity to make his application.
11. On 6 June 2013, after we had refused his application for reconstitution and had refused to disqualify ourselves on the basis of actual or ostensible bias, the case was stood down to enable Councillor Muto to make such application to the Acting President. In the event, we were informed, when the hearing resumed before us, that he declined to have Judge Macnamara deal with the matter because, he alleged, the Acting President was also biased against him. Judge Macnamara had heard an application Secretary to the Department of Planning and Community Development v Muto[1] in relation to Councillor Muto after the Ross decision. We will refer again to that decision later in these reasons. Ultimately, Judge Jenkins, a Vice-President of this Tribunal, heard Councillor Muto's application under delegation from the President. The application for reconstitution was dismissed and an order for costs was made against Councillor Muto on the basis that the other parties had been unnecessarily disadvantaged by his vexatious conduct of the application, the unreasonable prolonging of the proceedings and having regard to the application having had no tenable basis in fact or law. Her Honour ordered that the case should proceed before ourselves.
12. Upon the resumption before us, Councillor Muto expressed dissatisfaction and, while gathering together his papers and materials, declared that he was leaving to seek an injunction from the Supreme Court. Before he left, he was informed that the hearing would proceed in his absence unless and until it was restrained.
13. The hearing then proceeded in his absence on that day and also on 7 and 12 June 2013.
14. Approximately halfway through the morning on 7 June 2013, Ms Jema Cooper, barrister, appeared for Councillor Muto to seek an adjournment. She did not have a brief but informed us that she appeared on instructions of Voitin Lawyers of 114 William Street, Melbourne, for the limited purpose of seeking the adjournment. The basis of that application was that Councillor Muto was in hospital. The case was stood down to afford her an opportunity of obtaining evidence to support the application. Upon the resumption, the only further evidence available was a medical certificate from a medical general practitioner in Shepparton. It was clear that Mr Muto was not in hospital at all. A ruling was given that the case was to proceed because the basis for seeking an adjournment did not warrant an adjournment in the circumstances. Ms Cooper then withdrew and thereafter the hearing proceeded with no further appearance by or for Councillor Muto.