1. The application for disqualification on the basis of bias or for reconstitution pursuant to s.108 of the Victorian Civil and Administrative Tribunal Act 1998 is dismissed.

2. Liberty to apply.

Mr Garde Q.C., with Mr Fox, instructed by the Victorian Government Solicitor.

Mr North S.C., with Mr Nugent and Mr Hopper, instructed by Mitrakas Savas & Co., Lawyers & Consultants.

Mr Hammond Q.C., with Mr Reilly, instructed by Cornwall Stodard, Lawyers.

1 In this matter, which has been the subject of two earlier rulings by me in addition to orders and rulings by Senior Member Davis, Deputy President Aird and Deputy President Macnamara, I am asked to disqualify myself from further hearing it on the grounds of bias. Whilst it was not spelt out in the application, I assume that such general application was made in addition to, or as part of, an application for reconstitution of the Tribunal pursuant to s.108 of the Victorian Civil and Administrative Tribunal Act 1998 ("the Act"). This application has been made by Mr North SC, who with Mr Nugent and Mr Hopper, appeared on behalf of the first respondent, Bradto Pty Ltd ("Bradto"). The application was opposed by the State of Victoria (the "SOV") which was again represented by Mr Garde QC and Mr Fox. Tymbook Pty Ltd ("Tymbook") was again represented by Mr Hammond QC and Mr Reilly. Mr Hammond indicated that he had no instructions to say anything on behalf of his client in relation to this part of the proceeding.

2 The background to this matter is now well known and I have discussed it in my earlier rulings of 7th September 2005 and 13th October 2005. As is apparent from the transcript, the background to the matter was also ventilated at some length before Deputy President Macnamara in the hearing conducted before him on 21st, 24th and 25th October last. It need not be outlined again here.

3 In making this ruling, I have endeavoured to approach the matter in as dispassionate a manner as possible. Obviously there is a natural tendency to feel more comfortable listening to submissions which contain praise and support for the decision-maker rather than those which are critical. However, the very nature of a bias application is such that appropriate and proper criticisms will and should be made. Bearing this in mind, I have attempted to approach the matter in a dispassionate fashion and apply the appropriate legal tests as set out in the authorities. The conclusion at which I have arrived is that I prefer the submissions advanced by Mr Garde and I do not intend to disqualify myself from further hearing this matter or to reconstitute the Tribunal pursuant to s.108 of the Act.

4 I shall not set out the submissions advanced by counsel under separate headings. Rather, they will be embraced in the ruling which I shall now give. This is to avoid considerable repetition which, in the circumstances of this application, would otherwise be necessary.

5 At times in the ruling which follows I have referred to page references from the transcript of this bias application. That could not be done in every instance or in relation to each example given. As can be seen from the transcript, due to a technical malfunction no recording was available for the "morning session" of 3rd November 2005. In this regard could I make two observations. Firstly, there was no application for the provision of a running transcript in this matter. Bradto, which requested transcript, and the other parties were reliant upon the Tribunal's own internal recording system and the recording of submissions then being forwarded to an authorised transcript service by this Tribunal. This shall be discussed later. Secondly, some of Mr North's submissions involved criticism of administrative actions taken by this Tribunal, almost as if there were a Tribunal-wide conspiracy against his client. This shall also be dealt with during the ruling. However, let me assure all concerned that the malfunction which caused there to be no recording of submissions on the morning of Thursday, 3rd November caused there to be no recording made of the cases proceeding in the 43 hearing rooms in this building. Normally all are recorded. Bradto, or the parties, opted to use the internal recording system which unfortunately malfunctioned during one "session". Nothing sinister is to be read into that. In some instances I have used page references from the transcript. In others, I have not.

6 I say at the outset that some of the submissions made by Mr North, which submissions lasted 1½ days, were irrelevant and I agree with Mr Garde that some were almost a nonsense. Some of the difficulties so encountered seem to me to arise from two basic misunderstandings of what is involved in an application such as this.

7 Firstly, what is to be demonstrated is bias, whether actual or apprehended, within the meaning of the authorities. Bias is not error unless, possibly, error is wilfully or maliciously made, which has not been suggested in the present case. The remedy provided in relation to an error of law is by way of appeal - apart from any general principles, this is clearly set out in s.148 of the Victorian Civil and Administrative Tribunal Act 1998. Time and time again I raised this issue with Mr North - see, for example, pages 33, 92, 106, 107 and 124. Alleged errors of fact or law contained in my rulings of 7th September 2005 and 13th October 2005 do not of themselves constitute the basis of a bias application. Errors of law may constitute the basis of an appeal. In passing, I note that the ruling of 7th September 2005, to which a very considerable amount of criticism was directed, is not, to the best of my knowledge, the subject of an appeal and the statutory time limit for any appeal has now expired. I shall deal with this erroneous approach at greater length, with some examples, shortly.

8 The second misunderstanding, which is in part related to the first, and which arose from time to time was the manner in which the test set out in many of the authorities, such as Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 and Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 is to be applied. The nature of this test shall be discussed subsequently, but could be summarised at this stage as follows:-

A judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved.

9 On more than one occasion Mr North made references to what a fair-minded observer sitting in the back of the court might think of, for example, alleged game playing by the SOV - see page 23 of the transcript; what such observer might make of the decision of the SOV to permit the inspection of some documents by Tymbook whilst challenging the right of Bradto to inspect same (page 32) and what the same observer would make of some errors allegedly made by me, such as the defining of the relevant issues (page 20). Another example of the misapplication of the test relates to what a fair-minded observer would make of a comparison between the application before the Tribunal and the statement of claim which had been filed in the Supreme Court of Victoria (page 21). There are numerous other examples scattered throughout the transcript. What such observer might make of the behaviour of the parties is not to the point. What such observer might make of alleged errors of fact and law is also not to the point, unless such observer is also sitting on the Court of Appeal. It is the reasonable apprehension that the decision-maker might not bring an impartial and unprejudiced mind to the resolution of the question before him or her that constitutes the test, and it is for that reason that such matters as comments by the decision-maker which might indicate a pre-judgment are examined.

10 These two misconceptions, whilst separate, are at least partially linked as each involves the blurring of the distinction between bias and error. That blurring surfaced many times during Mr North's lengthy submissions. Both in addition to, and as illustrating the basic misconceptions underlying at least part of Mr North's submissions, I would draw attention to the following examples where such submissions were irrelevant, erroneous or, at times, were based on inaccuracies which had the potential to create a false impression or lead one to an incorrect conclusion. They are not dealt with in order of importance:-

(i) It was put that I had, in both rulings, improperly confined the issues to be determined. Indeed, it was put more than once that I had confined those questions to one issue alone. This was stated frequently - see, for example, pages 50, 59, 86 and 109 of the transcript. Two observations can be made in this regard. Firstly, the defining of relevant issues by a judge or decision-maker is hardly a novel proposition. If the issues have been wrongly defined and, for example, relevant defences, or discovery in relation to them, excluded, that may be corrected by way of appeal. In support of his submission, Mr North referred me to the decision of McColl v Lehmann [1987] VicRp 46; [1987] VR 503. In that case, the procedure adopted was in fact by way of an appeal and a retrial subsequently ordered. The refusal to grant access to documents in relation to a relevant issue was treated as an error of law which was corrected by way of the appeal process. Secondly, it is factually incorrect to state that Bradto was confined to one issue in the presentation of its applications. In his original written submissions, Mr North, on behalf of his client, defined the three principal issues to be determined, and set them out as follows:-

"(a) whether the scope of the alleged "inspection" which has been proposed, which includes drilling holes in the ground and drilling for asbestos and other hazardous materials, and which is expected to take in the order of a week or so, falls within the definition of "examine contained in the lease";

(b) the related question of whether proposed inspection is for the purpose authorised under the lease or for a collateral purpose;

(c) if such an expression is otherwise permitted, whether the persons who are to perform the inspection are properly agents of the landlord or other parties or are acting for reasons unrelated to the tenancy."

I made it quite clear in my ruling of 7th September 2005 that I was permitting to Bradto the opportunity of access to documents in relation to the three issues. As stated, these issues were derived and adopted directly from Mr North's submissions.

(ii) It was suggested by Mr North that I had in some way misapprehended the issue put before me in relation to access by "inspectors" to the site in order to test for the presence of asbestos or other hazardous materials - see for example pages 12, 109, 121 and 144. Criticism was levelled because of the use of the word "inspectors". Exception was also taken to the reference to testing for asbestos. Mr North claimed that I had gone beyond even the position put by the SOV.

This submission concerns me. In relation to the statement that I had gone beyond any position put by the SOV, I would refer to page 1 of the transcript of 6th September 2005, when Mr Garde, at the commencement of opening his case submitted the following:-

"Our instructors have requested the tenant on a number of occasions to grant access to Noel Arnold and Associates who are an agent of the State, having been so appointed in writing and otherwise, to permit testing to occur of the premises for asbestos which of course is dangerous to health, both on the part of employees and members of the public and also to permit soil contamination testing to occur."

What is perhaps more disturbing is that references to both inspection and inspection for asbestos are to be found in Mr North's own written submissions prepared for and submitted at the hearing commencing 6th September last. These references are set out above. In other words, an issue concerning which I have allegedly gone beyond the bounds of the position even advanced by the SOV is one which was in fact advanced not only by the SOV but defined as an issue by Bradto. It is of interest that, in Mr North's second set of written submissions for the hearing commencing 11th October, the issues are redefined in terminology close to that employed in the original definition of issues, except that the reference to asbestos and hazardous materials is now excluded.

I have indicated that I may require an explanation as to why, in a case where there are volumes of documents and the bench is awash with them, I was not told that the references to inspection and asbestos, concerning which there was considerable criticism, can be found in Mr North's own original written submissions.

In my opinion it is also something of a nonsense to suggest, as a ground for bias, the fact that I have referred to those whom the SOV wish to introduce to the premises as "inspectors", as opposed to "consultants". This appears in the transcript as early as at page 12. Apart from the fact that Mr North's own definition of the issues contained in his original written submissions refers to "inspection", in my ruling of 7th September 2005 I referred to these individuals as "inspectors or examiners". Realistically, this is an issue scarcely worth consideration and, during the course of this application, I dealt with it at page 110 of the transcript.

(iii) Criticism was made by Mr North of the fact that, on the Tribunal file, there are two newspaper clippings relating to the tendering process of the land in question and the hearing before this Tribunal. Both appeared in the public press some six days before the commencement of the hearing. Neither strike me as being in the slightest controversial. An attempt was made to link this to a statement by me in paragraph 4 of the ruling of 7th September as follows:-

"As is common knowledge, the SOV or its agents called for expressions of interest in relation to the development of The Triangle site. A list of some fifteen interested parties has now been reduced to a shortlist of three."

In some way, this sequence of events apparently has the potential to induce in the public a reasonable apprehension that I might not bring an impartial and unprejudiced mind to the resolution of the question involved. How it has potential so to do is something of a mystery, but I would make the following points:-

(a) Both the press clippings and my remarks are totally uncontroversial. The press clippings have no relationship to the issues, as defined by Mr North, that required determination, and contain no prejudicial material. To conclude that any observer might reasonably apprehend that they contributed to some prejudgment or preconception on my part is to draw a long bow indeed.

(b) In relation to the above statements contained in paragraph 4 of my ruling, these are no more than a brief summary of what is indeed common knowledge concerning The Triangle site. The situation has received considerable attention in local, state and national newspapers. As submitted by Mr Garde, surely it is no longer believed that judges live in a vacuum. It is hoped that we are not returning to the era when, in comic sketches, judges asked such questions as "What is a hamburger?".

(c) Further, I pointed out the following in paragraph 2 of my ruling of 7th September last:-

"Some of the following findings of fact are made solely for the purpose of dealing with these applications relating to an adjournment and to documents, and do not represent findings "on the merits". Some facts are non-controversial. Others, which relate specifically to these applications which I am now determining, are made as findings of fact. This is particularly so in relation to the procedural history of the matter."

(d) Apart from being uncontroversial, unprejudicial and common knowledge, the contents of the press clippings, and indeed my remarks in paragraph 4 as set out above, throw no light, positive or negative, on the issues to be determined in relation to the possible granting of the injunction sought.

(e) Mr North has argued that the existence of the press clippings on the file, combined with my observations as set out above, would lead the observer in the court to the reasonable apprehension that I had obtained information from an outside source. Apart from all that has been set out above in relation to the press clippings and my remarks, the most damning observation that can be made concerning this argument is this. Mr North submitted that no reference to the shortlist of three tenderers is to be found in the affidavit material of the SOV. Even if that be correct, it is to be found in the affidavit of 5th September 2005 sworn by Alan Evers-Buckland, the supplier of consultancy services to Bradto, such affidavit having been filed by Mr North's instructing solicitors. Paragraph 15 of that affidavit reads, inter alia:-

"The successful short-listed tenderers was announced by the City of Port Phillip in the media on 30th August 2005."

In other words, apart from being in the daily press, this information is attested to by, effectively, an agent of Mr North's own client in an affidavit filed and served by its solicitors prior to the hearing.

I agree that whether or not I in fact saw the press clippings or was in fact influenced by them is not relevant. However, I regard submissions such as these as a basis for disqualification on the grounds of bias as being fanciful in the extreme.

(iv) It is submitted by Mr North that, by finding in my ruling of 7th September 2005 (and I repeat that this ruling was not appealed) that Bradto operates the Palace Entertainment Complex on the land which it leases, I have made an erroneous finding and one which I have repeated in my ruling of 13th October 2005. I there stated as follows:-

"The Certificate of Title, if I can so describe it, speaks for itself. It is a 50 year lease commencing on 1st April 1956. It is pursuant to that lease and the chain of title described upon it that Bradto occupies the land."

Mr North has submitted that he made it clear that Bradto entered into a sub-lease with a company called Maztan Pty Ltd which in fact occupies the land. Thus, I have in some way prejudiced its position.

This submission suffers from one of the principal misconceptions already described and also has interesting factual connotations.

Firstly, if I have made an error in wrongly describing a party as being the tenant or occupier of the land in question, that is something which may form the basis of an appeal. It is not a proper basis for a submission of bias. Secondly, it is irrelevant. The Crown lease in question is one between the SOV and Bradto. It is a clause contained in that lease which, so I have been told from the outset, lies at the centre of this dispute. Thirdly, the Crown lease has been put in evidence before the Tribunal. As at 28th July 1992, Bradto is shown as the registered proprietor of the leasehold. That remains the situation. Pursuant to the lease, Bradto is the tenant. Indeed, in the affidavit of 5th September 2005 sworn by Jerry Pilarinos, a director and company secretary of Bradto, it is stated in paragraph 22 that:-

"The defendant (sic) is currently the lessee of premises colloquially known as the Palace Entertainment Complex or simply "The Palace" in St. Kilda."

Fourthly, whether or not there were passing references to Maztan Pty Ltd, the argument at all times before me has been presented as one between SOV and Bradto. Finally, I would again point to the statement that I made in paragraph 2 of the ruling of 7th September 2005. The findings of fact which I have made in the previous rulings were made for the purposes of the applications then before me - for an adjournment and access to documents - and did not represent findings on the merits.

(v) The next submission of Mr North with which I shall deal also causes me some concern. It is based upon the discovery on the Tribunal's file of a letter dated 2nd September 2005 from the Victorian Government Solicitor on behalf of the SOV to this Tribunal. The letter contains certain submissions by the Victorian Government Solicitor as to its position in relation to the application to be heard by me on 6th September. It was hinted at, if not put more strongly, that there had been some form of clandestine correspondence between the SOV and the Tribunal, and it was further hinted, if not stated, that the findings which I ultimately made reflected what was contained in this letter. Mr North submitted that the view which I expressed in relation to abuse of process and the like:-

"... emanates from one source only, is not otherwise attended to by any documentary evidence which would justify the conclusions, but is found in the letter of 2 September 2005. You will remember the letter because it's the only source of the suggestion that an abuse of process could in fact be found where somebody seeks documents ... The letter in its term said, and this is a letter to the Tribunal of 2nd September 2005. It is clear from the reading of the proposed witness summonses that what is intended is an abuse of process of the Tribunal" - see page 44 of the transcript.

"The letter shouldn't have been written. It is in fact against every process of fairness in any Tribunal or Court to make a determination at the earliest period of time, that is, 6th September, based on that letter without anything else expressed ..."

Again, at page 59, it is said that Bradto's application in respect to documents had failed:-

"... because your Honour had narrowed the focus accepting the single-issue pieces put forward by the State of Victoria through the Victorian Government Solicitor's Office ..."

At page 69 there is reference to the Tribunal failing to advise Bradto that it was receiving submissions. Again, at page 102, it is suggested that:-

"... your Honour, a week after the matter had been listed, unfortunately accepted the sole issue thesis put forward by the State of Victoria through the Victorian Government Solicitor's Office ..."

This theme, in a slightly more ambiguous form, is repeated towards the end of Mr North's submissions at page 148 where it is said that:-

"... You had narrowed the issues to what your Honour was told were the issues and the way in which you summarised them in the written reasons."

Further, in his written submissions, Mr North referred to a circumstance that could lead to a reasonable apprehension of bias as including:

"Hearing or receiving representations from one party to proceedings unknown to the other."

"The Tribunal appears to have had verbal and written communications with the Applicant's legal advisers but (sic) were not conveyed to the Respondent or its legal advisers."

The submission immediately following relates to predetermination on my part of a number of issues.

I have set out extracts from these submissions at some length because of the clear inference which could be drawn that the Tribunal received some correspondence from the Victorian Government Solicitor upon which I based my ruling "at the earliest opportunity". In addition, it was also apparent, and I so stated (during the unrecorded session), that I was having difficulty in locating the letter the subject of the submissions.

What subsequently came to light and was pointed out by Mr Garde at the very start of his submissions was that this was no secret letter between the Victorian Government Solicitor and this Tribunal. It did indeed contain a brief outline of the position which would be adopted at the hearing by the SOV, but it is equally clear that a copy of it was sent to Mr North's instructors. This was before the hearing. The letter foreshadowed, in very summary form, the position that would be put, and indeed was put, by Mr Garde in open court at the hearing.

When questioned by me at the end of submissions, Mr North admitted that a copy of this letter had indeed been sent to his instructors and had been exhibited to an affidavit by Mr Mitrakas, his instructor. I may well require a further explanation from Mr North in relation to this. The whole impression created of clandestine activity was erroneous. It is unfortunate that, at the outset, I was not told that this letter, found on the Tribunal's file, was a letter a copy of which had been forwarded to Mr North's instructing solicitors by the Victorian Government Solicitor.

As stated, even if this had not been the case, the letter did no more than foreshadow the position which would be taken, and was in fact taken, by the SOV at the hearing commencing 6th September. In all the circumstances I fail to see how it can form the basis of a bias application.

(vi) The next submission of Mr North with which I shall deal is one which, frankly, as part of a bias application I consider to be a nonsense. It is that there is another application on foot, or about to be issued out of this Tribunal, which relates to the duration of the tenancy, and a fair-minded observer sitting in the court would ask why the matters were not being heard together. This seems to me to be an illogical and irrelevant melding of concepts. Firstly it has nothing to do with a bias application. Secondly, it confuses the test. Thirdly, no application has been made to me to hear anything other than the injunction application which is before me. Fourthly, until this bias application I was not even aware of the existence of the additional proceeding now on foot or contemplated. Fifthly, an application that there be one large hearing embracing all relevant issues was made not to me, but to Deputy President Macnamara in the application which commenced before him on 21st October last. He refused to make such an order. What any of this has to do with a bias application is beyond my comprehension.

(vii) I am equally confused as to how the submission based upon the allegation that the SOV gave to Tymbook access to documents which access it did not give to Bradto fits into a bias application. As earlier stated, Mr North again asked what a fair-minded observer would make of this. Apart from again confusing the test, this submission has little place in a bias application. If the SOV opts to behave differently towards its respective opponents, that may be a cause of dissatisfaction. What, if anything, it has to do with a bias application is another matter.

(viii) Apart from the complaint concerning the letter of 2nd September (?), Mr North also raised an additional issue which he said indicated some preferential treatment afforded by the Registry of this Tribunal to the SOV as compared to his client. Apparently, someone in the Registry indicated to the SOV that I would be hearing the matter commencing on the 6th September, but did not or would not give this information to Mr North's instructors. Further, it was submitted (at page 32 of the transcript) that the fair-minded observer might ask how it was that the Tribunal had permitted the service of the SOV's application against Bradto, but allegedly had not permitted service "yet" of some application brought by Bradto and Maztan against the SOV. Apart from again confusing the test to be applied, whether this latter submission, when combined with the earlier one, is meant to indicate some bias on the part of the entire Tribunal or to be indicative of a conspiracy is not clear. Even if these events have occurred, how they are even remotely suggestive of bias on my part is even less clear.

(ix) Another submission which mystifies me is that concerning the relation or similarity between the SOV's application against Bradto and the application against Tymbook, and the role played by the Tribunal in this regard. In Mr North's written submissions, this particular matter is dealt with under the heading "Similarity of Tymbook proceeding not disclosed to Tribunal". Earlier references are found to this issue when there is discussion concerning the proceedings in the Supreme Court of Victoria. Under the heading just described, it is stated that VGS, at the time that it commenced proceedings, advised the Registry that the proceedings were related and in fact requested that they be heard on the same day. Apparently, in the Tymbook proceedings, Deputy President Aird raised the question of whether the matters could be conveniently heard together. I raised the same issue, as is apparent from paragraph 7, 18 and 19 of my ruling of 7th September. I cannot recall any exception being taken to this. Indeed, in his affidavit of 5th September 2005, Mr Pilarinos, director and company secretary of Bradto, seems to be urging that this very course be adopted. Be that as it may, this submission was expanded upon orally by Mr North. What it has to do with bias on my part is beyond my comprehension.

(x) Yet another submission by Mr North which seems to me to be wide of the mark is that concerning the inadequate or unsatisfactory nature of the affidavit sworn by Ms Sally Jane Robertson, a solicitor in the employ of the Victorian Government Solicitor. In my ruling of 13th October last, I determined that I accepted the accuracy of her affidavit and that she had made available the relevant documents - see paragraphs 8, 24, 26, 27, 29, 32 and 33 of the ruling of 13th October 2005. It is now argued by Mr North that, subsequently, further documents have come to light. In this regard, he attempts to put the blame upon others rather than upon Ms Robertson. Wherever the blame may lie, if there be any, the fact that I accepted the accuracy of Ms Robertson's affidavit is not relevant. Even assuming that all of Mr North's submissions are correct, the fact that I accepted and preferred the sworn affidavit of a solicitor, which affidavit subsequently proved to be incorrect, is not an indication of bias. To determine a question on the basis of the material currently available is scarcely indicative of bias, even if, allegedly, facts come to light which demonstrate inaccuracy or error in the original material. I fail to see how this submission constitutes a ground for an allegation of bias.

(xi) It has also been submitted by Mr North that I have also demonstrated bias by stating, in my ruling of 13th October last, that Bradto and Tymbook "were effectively working in concert" - see paragraph 16(k) of Mr North's written submissions. In fact, in paragraph 20 I stated that:-

"... whilst Tymbook was not before me in September, given that Bradto and Tymbook were effectively acting in concert in this application and that there was quite frequent reference to my ruling of 7th September, it would be surprising indeed if those representing Tymbook were not aware of its existence or content."

The Australian Concise Oxford Dictionary defines, as the relevant meaning of "concert", "agreement, accordance, harmony". Butterworth's Concise Australian Legal Dictionary contains no relevant definition, "conduct engaged in concert", being a definition given in relation to a boycott. Particularly when the context in which I made this remark is considered, how it could be considered to be an indication of bias against Mr North's client stretches the limits of the imagination. It would be a difficult enough argument if Tymbook was claiming that it was, in some way, disadvantaged by being linked with Bradto, my having been allegedly critical of Bradto. Given that Bradto and Tymbook were seeking much the same relief, that Bradto had earlier been seeking that the matters be heard together, and that Mr Hammond and Mr North had effectively been supporting each other in their respective applications, to remark that they were effectively acting in concert for the purposes of an application alleging that the SOV had not disclosed all documents is hardly startling. Even if all of that were not so, a statement that two respondents were effectively acting in concert for the purposes of an application in which they are jointly attacking another party is scarcely the foundation for an allegation of bias against one of them.

(xii) Finally, another confusing submission is that the SOV raised a broader range of issues in its Supreme Court application than that raised before me. The submission in this regard commences at page 21 of the transcript, and is referred to subsequently. To some extent it is an adjunct to the submission referred to in (i). It strikes me as being totally irrelevant as a potential ground for a bias application.

11 Having dealt at some length with examples of submissions that were not to the point and which, in some instances, constituted nothing more than a waste of time, I turn now to what was described by Mr Garde as the four fundamental propositions contained in Mr North's written submissions, a description with which I agree.

12 Some of these overlap with matters already discussed.

13 The first of these is that, and I am here applying the test set out in the authorities, the public might entertain a reasonable apprehension that I might not bring an impartial and unprejudiced mind to the resolution of the question involved because I have made remarks which allegedly attribute to Bradto and its legal advisors an ulterior or improper motive. In other words, it is a submission based on preconception or prejudgment. In this regard, considerable attention was focussed by Mr North on remarks contained in my ruling of 7th September. I repeat that this is a ruling that was not the subject of any appeal and concerning which there was no complaint prior to or upon the commencement of the hearing of 11th, 12th and 13th October.

14 Before going into other details of the submission, there is one aspect of Mr North's written submissions, adopted by him in oral argument, which causes me some unhappiness and disquiet. Paragraph 12 of his written reasons reads as follows:-

"12. In his judgment delivered on 7th September 2005 his Honour:

(b) Described Bradto's conduct (and implicitly, the conduct of its legal advisors), in seeking such documents as a "time wasting procedure adopted for commercial reasons."14

Footnote 14 directs the reader to paragraph 1 of my judgment. As is quite apparent from paragraph 1 of that judgment, I was not there so describing Bradto's conduct. The sentence in which the quoted words is contained in fact reads as follows:-

"The SOV opposes each such application, effectively alleging that this is a time wasting procedure adopted for commercial reasons."

Whatever the conclusion to which I ultimately came, it is quite clear that, in paragraph 1, I was doing no more than summarising, in very brief form, the case as put by the SOV. Whatever might be said elsewhere in the judgment, to omit parts of this sentence contained in paragraph 1 so as to create an incorrect impression is a distortion. When I asked for an explanation of this, the explanation which I received, which dealt basically with the merits, was unsatisfactory.

15 There is no argument but that, in the ruling of 7th September, I made some observations concerning the subpoenas which had been prepared, but not issued, on behalf of Bradto. I was not prepared to direct that such summonses be issued out of the Registry, and given the nature of them, I described them as oppressive and, in the form in which they were, an abuse of process. In addition, in paragraph 15 of that ruling, I stated as follows:-

"I regard the summonses as being oppressive. Further, such things as the request for the details of the bids of the various tenderers, successful and unsuccessful - an issue which may be of commercial importance to the respondent but has no relevance to the issues to be determined in this case - raises a considerable doubt as to whether the summonses have been issued bona fide and as to whether the documents specified are sought not for the purpose of this proceeding but for some ulterior purpose."

"As stated, I am prepared to adjourn the matter (thereby acceding to Bradto's request). Many would consider that the approach adopted by Bradto in relation to these documents and this adjournment smacks of obfuscation and delay for commercial purposes. Mr Garde, on behalf of the SOV submitted as much. Whether or not that be the case, there is certainly a flavour of pedantry of quite high order. However, in the interests of fairness, I propose to allow the respondent the opportunity of preparing a sensible list of documents or categories of documents which are or may be relevant to the issues as defined, and to which it seeks access."

17 Attention is also drawn to other remarks which I have made and which are set out in Mr North's written submissions. Some of these, such as my using the words "any further untoward delay" or "allegedly possess" do not seem to me to merit consideration.

18 In relation to the ruling of 13th October 2005, again exception is taken to various remarks. Again, as the basis for a submission of bias, several of these do not seem to me to merit consideration. Some seem to go to the re-arguing of matters already argued before me. Perhaps those of greater substance include a complaint by me that "this whole exercise has involved considerable wastage of [the Tribunal's] time" and that the provision of some discovery by the SOV has "led to the chasing of other irrelevant rabbits down their burrows". I was also critical of a "highly technical, if not nit-picking" approach that was adopted (although not confining that to Bradto). In paragraph 3 of this ruling, I also stated that:-

"This adjournment and opportunity to request, in a sensible fashion, access to relevant documents or categories of documents was not to be interpreted as an invitation to embark upon a fishing expedition or engage in an exercise which would be just as oppressive and irrelevant as the subpoenas which I refused to issue. The opposite is the case. I would have thought that was clear from the remarks contained in my ruling of that date."

19 The issue to be determined is whether the remarks made by me and listed by Mr North (and I have only set out what I believe to be the principal ones) should, when viewed in their entirety, require me to disqualify myself on the grounds of actual or apprehended bias. The test to be adopted is discussed at some length in Johnson. In the joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ the following is said at paragraph 11:-

"It has been established by a series of decisions of this court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias ... is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide."

Reference is then made to various cases. In paragraph 12, the following is added:-

"At the same time, two things need to be remembered: The observer is taken to be reasonable; and the person being observed is "a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial"."

20 In Gascor v Elliott [1997] 1 VR 332, Tadgell JA stated as follows:-

"Although the criterion of apprehension of partiality or prejudice is possibility, not likelihood, a reasonable apprehension is to be established to the court's satisfaction: it is reasonable and not fanciful or fantastic apprehension that is to be established; and the apprehension is to be attributed to an observer who is "fair-minded" - which means reasonable."

21 In Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; [2000] 205 CLR 337, the majority of the High Court said:-

"They [judges] do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case."

22 This observation, which was referred to by Morris J in Dental Practice Board of Victoria v Varnavidis (No. V10/2004) is similar to observations earlier made in Re J.R.L.; Ex Parte C.J.L. [1986] HCA 39; [1986] 161 CLR 342 at 352 as follows:-

"Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duties as set and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour."

23 Thus, there are various factors to be balanced. In my opinion, and viewing it as dispassionately as I can, it seems to me that the remarks which I made relate solely to the manner in which the application for adjournment and access to documents was initiated and pursued. Unlike the situation in many of the authorities to which I was referred (including Vakauta) I made no comment upon the credibility or reputation of any particular witness. There is not even any suggestion that I had any contact with, information about, or preconception concerning any witness or the credibility of such witness. In the principal comments to which I have been referred, as set out above, I have certainly expressed my views as to the manner in which a particular step - namely, discovery or access to documents - was being pursued. Given the manner in which such was pursued, I have expressed some doubt as to the bona fides of the application. In this context, such an expression of doubt is hardly novel.

24 A judicial officer or decision-maker may have some doubts as to the bona fides of a particular application or submission. The expression of that doubt does not amount to bias or, in my opinion, the reasonable apprehension thereof within the meaning of the test. It does not amount to a pre-judgment or pre-conception, either real or apprehended, in relation to the issue or issues to be determined. It is a comment upon, for example, the unsatisfactory way in which a preliminary step was conducted. It is not a pre-judgment of, or even a remark about, the credibility of a witness who might be called, and is thus vastly different from the situation in Vakauta. It is also a long way removed from the situation in, for example, Varnavidis or the situation in decisions such as Kay v Legal Profession Tribunal [2000] VSC 463, being another decision to which Mr Garde referred. In the present case there has been no reference to the credit of any individual witness, much less a situation where a person concerning whom adverse remarks have been made is again appearing before the same decision-maker.

25 I would also point out that, in the present case, one of the issues as specifically defined by Mr North was the "ulterior motive" issue. It is an interesting submission that, in a situation where I am invited to find an ulterior motive on the part of the SOV, it is an indication of bias if I find an ulterior motive on the part of Bradto, even assuming that I have so found. It is a somewhat bemusing concept that, a party having raised the issue of ulterior motives, such issue can only be commented upon insofar as it relates to other parties.

26 Be that as it may, in my opinion insofar as the issue of actual or apprehended bias by way of pre-judgment or pre-conception of the issue to be determined is concerned, I have done no more than express my views in relation to the manner in which a preliminary issue has been pursued, and expressed those views in a fashion no different from that frequently expressed in the courts. Similarly, by defining the issues which I consider to be relevant, I have not deviated from the path frequently and properly trodden by others. Whether it be in relation to the rulings of 7th September 2005 or 13th October 2005, or the separate determination which I made in relation to costs against Bradto, I am of the opinion that there was, to quote Mr Garde's submission, "Nothing remarkable about them", and I am of the view that there is nothing contained in them which would lead to the conclusion that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the question to be decided. In relation to the issue of comments which I have made and any arguments based upon pre-judgment or pre-conception, I am of the view that any apprehension of bias would be a fanciful and fantastic apprehension at which a fair-minded or reasonable observer would not arrive.

27 The second fundamental proposition is that there was found on the Tribunal's file extraneous material which may have influenced my reasoning. I have already dealt with this in some detail. For the reasons already expressed, I am of the view that it is a submission totally without foundation.

28 Allied to this is the submission that this Tribunal appeared to have had verbal and written communications with the legal advisors of the SOV which were not conveyed to Bradto or its legal advisors. I have already commented on this submission. Even assuming that it had some foundation, if it is a criticism of the Registry of this Tribunal it is an allegation which leads nowhere. If it is some sort of conspiracy allegation, presumably it should be accompanied by an application that the entire matter be heard elsewhere. That, of course, would be assuming that there was some basis for such allegation, a claim which I reject. As the basis of a claim of bias on my part, it is both irrelevant and lacking in any proper factual foundation. I have also commented upon the innuendo that a letter allegedly wrongfully received from the Victorian Government Solicitor and placed upon the Tribunal file in some way influenced my thinking. I need not return to this, as it warrants no further consideration.

29 In relation to the other allegations contained under the heading in Mr North's written submissions "Inspection of Tribunal's File", the submission that the Tribunal appears to have accepted an affidavit made by Sally Jane Robertson which was filed on 5th September 2005 but bears a date on 6th September 2005 is one which I regard as trivial in the extreme. The affidavit is clearly dated 6th September 2005. It also bears the date stamp "5 September 2005". Whether that be an accidental or deliberate error on the part of whoever stamped the document, its relevance to a bias application concerning myself is non-existent. I hasten to add that I am in no way persuaded that some deliberate error was made, as such would be pointless, but even if it were, its significance and relevance are not just minimal. They do not exist.

30 I have already commented upon the newspaper clippings found on the file. I need not discuss those again.

31 The final fundamental proposition which could be described as being of any substance made by Mr North related to delay in the obtaining of transcript. As I stated from the bench, when Mr Garde was referring to it as part of what could be described as the conspiracy theory, I can only assume that reference is made to this so as to excuse delay on the part of Bradto in making a bias application. The pronounced nodding in which Mr North engaged following my remarks would seem to indicate that my assumption was correct. As is well known, and has been discussed during the conduct of the matter, due to my movements and other factors, it took some time for the transcript of the matter to catch up with me for the purposes of revision. Indeed, when it first came to my attention, I was on circuit in Warrnambool and had no access to the discs which might assist in clarifying and revising some of the passages which were reported as being "indistinct".

32 Thus, there was delay in revision of some of the transcript. However, I would point out two things. Firstly, whilst this is purportedly a major commercial matter involving senior counsel and several juniors, there was no application made on behalf of Bradto or any other party that the proceedings be transcribed in the sense that an authorised transcription service would set up its equipment and provide a running transcript. Rather, as has been earlier discussed, reliance was placed upon the Tribunal's own internal recording system, with requests then being made by the solicitors for Bradto that the CD of the evidence then be forwarded to an authorised transcription service. The CD is not so forwarded unless and until a written request is received. This has the potential to cause delays which would not be encountered with a running transcript. For example, in relation to the hearing of this very application, the hearing concluded on the afternoon of Thursday, 3rd November. The request for transcript was not received until the afternoon of Tuesday 8th November. There are many demands upon the services of Messrs Spark & Cannon. The transcript was emailed to me for revision at Mildura, where I was on circuit, on Tuesday, 15th November, and the corrections faxed back on the same day. However, by the time a revised transcript was in the possession of the parties, some 12 days would have elapsed. I use this as an example in order to illustrate that delay in relation to the making available of transcript when this method is used is not necessarily indicative of fault on the part of the Tribunal or its members, much less being indicative of some type of conspiracy.

33 The second point which I would make in relation to transcript and delay is this. The bulk of the complaints made by Mr North concerning observations and errors of mine indicating bias come not from the transcript but from the rulings. Indeed, one of Mr North's submissions is, in essence, that I did not make sufficient comments during the conduct of the matter so as to indicate my thinking. The reasons following the September hearing - which reasons seem to have attracted the greater attention - were delivered within 24 hours of the conclusion of the matter. In relation to the October hearing, lengthy oral reasons were given on the same day as the matter concluded. They were quite detailed, and apparently of sufficient clarity for Mr North to immediately foreshadow this bias application. No such application was made either at the conclusion of the September hearing or at the commencement of the October hearing, despite the fact that the earlier written reasons had been available as of 7th September. In other words, I am not totally convinced that this application could not have been made at an earlier time, and that it was not so made because of delays associated with transcript. However, in the circumstances, I do not propose to take into account any tardiness on the part of Bradto in making this application.

34 Be that as it may, as I have made clear from the outset, I do not accede to Mr North's submissions. For the reasons set out above, I do not intend to disqualify myself on the grounds of bias nor reconstitute the Tribunal pursuant to s.108. Of course, insofar as my so ruling is a rejection of an application for reconstitution pursuant to s.108(4) of the Act, the matter may be referred to the President in accordance with that sub-section.

35 I also wish to make the following general observation, which is an observation quite separate from the above ruling on bias.

36 It is one which, at least in part, I have made before during the conduct of this matter. This is the Victorian Civil and Administrative Tribunal. Pursuant to s.98(1)(d) of the Act, it is obliged to conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of the Act and the enabling enactment and a proper consideration of matters before it permit. It is, of course, bound by the rules of natural justice, but it is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures. It may regulate its own procedure. It can inform itself as it sees fit. All of these matters are to be found in s.98. As was said by the then Attorney-General in the second reading speech when the Act was introduced:-

"The reform package gives effect to the Government's pre-election commitment to provide Victorians with a modern, accessible, efficient and cost-effective civil justice system ..."

"The Bill contains a range of measures that will assist VCAT to minimise costs and resolve applications quickly and informally. They will assist VCAT to make the most efficient and effective use of its resources."

37 This matter concerns an application for an injunction - now for an interlocutory injunction. The number of sitting days which it has consumed is now in the order of 14. An application for adjournment before Deputy President Macnamara took 3 days. This application for reconstitution occupied 2 sitting days. The actual hearing of the application for an injunction "on the merits" has still not commenced. On many of the sitting days, three senior counsel, four junior counsel and at least three instructing solicitors have been present. The legal costs involved must already be enormous. What has so far occurred seems a long way removed from the objects of the legislation as described in the second reading speech and from the provisions of s.98 of the Act.

38 Nor does it seem to me to be to the point to refer, as Mr North has done, to practices and procedures sometimes adopted in the Retail Tenancies List as if that List were somehow in a different category. I have previously discussed this type of submission in paragraphs 13 to 18 (and particularly in paragraph 18) of my ruling of 13th October last. I would repeat those observations.

39 Indeed, it could be argued that if matters in the Retail Tenancies List differ from those in other Lists in any way, the way in which they differ is that, when the enabling legislation is considered, there is an even greater emphasis upon informality, efficiency and cost-efficiency. In introducing the legislation, the Treasurer described the purpose of the Retail Leases Act 2003 as being:-

"... to establish a new regulatory framework for retail tenancies that promotes greater certainty, fairness and clarity in the commercial relationship between landlords and tenants of retail premises."

40 There is emphasis in the second reading speech upon mediation and the role of the Small Business Commissioner. Indeed, the Retail Leases Act, whilst not unique, is somewhat unusual in that, in s.92, it imposes restrictions in relation to the awarding of legal costs which are far more stringent than those found in s.109 of the Victorian Civil and Administrative Tribunal Act. Further, s.1 of the Retail Leases Act states that the main purpose of such Act is "to enhance ... the mechanisms available to resolve disputes concerning leases of retail premises". Whether or not this argument concerning a demand for less formality and greater cost efficiency in the Retail Tenancies List be correct, there is certainly nothing either in the Act or the enabling Act which suggests that cases brought to this Tribunal pursuant to the enabling Act are to be treated in a more formal way or as if they were proceedings brought in the County or Supreme Courts. As I have previously stated, in my opinion the correct approach is a case by case approach.

41 I can only again urge all concerned to remember where this case is being heard, the requirements of s.98, and the observations contained in the second reading speech, and bear those matters in mind in the future conduct of the application.