Mr Tim North SC, Mr Peter Nugent and Mr Samuel G Hopper of counsel instructed by Mitrakas, Savas & Co., Lawyers and Consultants.

Mr Greg Garde QC, Mr M Clarke and Mr Peter Fox of counsel instructed by Victorian Government Solicitor.

Mr Jack Hammond SC and Mr Brendan Reilly of counsel instructed by Cornwall Stodart, Lawyers.

(given orally at the hearing and subsequently revised)

1 Section 108(5) of the Victorian Civil and Administrative Tribunal Act 1998 ("the Act") vests in the President of the tribunal a power to reconstitute the tribunal appointed to hear and determine a particular proceeding. Section 148 of the Act provides for an appeal, on a question of law, from an order of the tribunal in a proceeding to the Supreme Court of Victoria. The application before me raises the important issue of how the discretion to reconstitute should be exercised in circumstances where the matters relied upon are essentially matters that could be ventilated on an appeal.

2 The application is made in a proceeding in the Retail Tenancies List of the tribunal. The State of Victoria has brought an application against Bradto Pty Ltd ("Bradto") in which it seeks interlocutory injunctions to enable its agents to enter Bradto's premises at the Lower Esplanade, St Kilda for the purpose of conducting certain environmental inspections and tests. The State alleges that the lease held by Bradto will expire early next year; and that an injunction is necessary to enable it to ascertain relevant information as to the condition of the premises.

3 It is unnecessary for me to set out in detail the various steps which have been taken in the proceeding, save to say that they have been considerable and have occupied a number of sitting days before the tribunal. On 6 September 2005, his Honour Judge Bowman, who had been appointed to hear and determine that application, made certain preliminary orders. Judge Bowman made further orders on 13 October 2005, following a three day hearing. The matter was brought again on 26 October 2005, this time before Deputy President Macnamara because Judge Bowman was unavailable, and further a ruling was made. These hearings and decisions culminated in an application made by Bradto that Judge Bowman disqualify himself from further hearing the matter on the ground that he was biased or should be apprehended to be biased. That application was heard on 2 and 3 November 2005.

4 On 10 November 2005 Judge Bowman made orders, dismissing the bias application, supported by detailed reasons of 20 pages. Judge Bowman treated the application before him as in fact two applications. First, he treated the application as an application that he disqualify himself on the basis of bias or apprehended bias. Second, he treated the application as an application pursuant to section 108(1) of the Act that the tribunal be reconstituted so as to not include himself. Judge Bowman dismissed both applications.

5 Following the decision made by Judge Bowman, Bradto required the matter to be referred to me, as President of the tribunal, pursuant to section 108(4) of the Act.

6 I have permitted the parties to make submissions. I must now decide whether or not to reconstitute the tribunal.

7 Bradto's application that I reconstitute the tribunal is based upon the proposition that Judge Bowman cannot further hear the proceeding without being in breach of the principles of natural justice because he has already predetermined critical issues. In particular, it is said he has determined that the case be confined to a single issue; and has prevented submissions being made, or evidence being called, about wider issues that Bradto asserts are relevant to the State's application for relief.

8 The matter is complicated by the fact that the relevant premises have been sub-let from Bradto to a company called Maztan Pty Ltd ("Maztan"). A separate proceeding has been initiated in the tribunal by Bradto and Maztan against the State of Victoria which seeks an injunction preventing the inspection that the State seeks to conduct. In the usual course of events, a related proceeding is heard with an existing proceeding, if practicable and appropriate. Hence it is said that I should reconstitute the tribunal because this is necessary to ensure that the present proceeding, as well as the proposed proceeding, are heard fairly.

9 There is a second proceeding currently before the tribunal involving another company and another site: the other company being Tymbook Pty Ltd ("Tymbook"). Counsel for Tymbook have not sought to participate in the current application before me, save to say that if the application succeeded it would not be prejudicial to its interest.

10 However the State of Victoria has strongly opposed the application and submits that I should decline to reconstitute the tribunal.

Section 108

11 Because section 108 of the Act is critical to the present application, it is desirable that I set it out in full:

(1) At any time during the hearing of a proceeding a party may apply to the Tribunal requesting that it be reconstituted for the purposes of the proceeding.

(2) At any time during the hearing of a proceeding, the President or a member of the Tribunal may give notice to the parties that the President or member seeks the reconstitution of the Tribunal for the purposes of the proceeding.

(3) On application under sub-section (1), or after notice is given under sub-section (2) -

(a) the Tribunal, as presently constituted, after allowing the parties to make submissions, may decide that it should be reconstituted; and

(b) if so, the President must reconstitute the Tribunal.

(4) If the Tribunal rejects an application under sub-section (1) for reconstitution, a party may require the matter to be referred to the President.

(5) If a matter is referred to the President under sub-section (4), the President, after allowing the parties to make submissions, may reconstitute the Tribunal.

(6) If the Tribunal is reconstituted for the purposes of a proceeding, the reconstituted Tribunal may have regard to any record of the proceeding in the Tribunal as previously constituted, including a record of any evidence taken in the proceeding.

12 The nature of the discretion contained in section 108(5) of the Act has been discussed in a number of previous cases. In Metrospan Developments Pty Ltd v Whitehorse City Council[1] Kellam J comprehensively dealt with the scope and nature of the discretion. The discretion has also been considered by Judge Strong in Delaney v Pasunica Pty Ltd[2]; and I have considered it in Gabrielidis v Hobsons Bay City Council[3] and Tomasevic v State of Victoria[4].

13 Certain things are now clear about the nature of the power vested in the President under section 108(5). First, it is a discretionary power. Second, the discretion is a broad discretion. The Act does not specify particular criteria to be taken into account nor does it impose limitations on the exercise of the discretion. Third, it is clear enough, having regard to the nature of the tribunal as an expert tribunal and other exigencies of any jurisdiction, that the power is designed for a wide range of circumstances. In Metrospan, Kellam J said the power might be used when a member of the tribunal becomes ill or when a member of the tribunal retires and their term expires. I think a substantial purpose of the power is to deal with the circumstance that the tribunal constituted to hear and determine a proceeding is ill-suited to the specialist task that actually arises in the case. For example, in the planning field, a tribunal might be appointed consisting of a legal member and it may subsequently transpire that there are technical issues concerning traffic engineering or heritage which would be better determined by a member having that special skill. Section 13(2)(b) and 14(2)(b) of the Act clearly contemplate that some members of the tribunal will be persons having extensive knowledge or experience in relation to a specialised matter that is affected by the tribunal's jurisdiction. As the tribunal is constituted as an expert tribunal, it is not surprising that the Act contains mechanisms to ensure that the constitution of the tribunal to hear a particular case suits the needs of the case, even if this is appreciated after the hearing has commenced.

14 Another example where the section 108(5) power might be exercised is such as that which arose in the Tomasevic case. In that case the tribunal was required to determine what witnesses should be permitted to be summonsed by the applicant. It was apparent that that decision involved a detailed understanding of the facts of the matter, which would have required many hours, indeed days, of work. I formed the view that it was desirable that this task be conducted by the same member who was to be appointed to conduct the final hearing of the proceeding. Hence, I reconstituted the tribunal to hear the preliminary matter so as to ensure that that work did not need to be performed twice.

15 There is yet another circumstance where the discretion in section 108(5) might be exercised: that is where there is a concern that the future conduct of a proceeding before the member or members appointed to constitute the tribunal might be in breach of the rules of natural justice. This was the situation that arose in Metrospan and Delaney. It was also a circumstance relied upon, although not upheld, in Tomasevic and Gabrielidis.

16 In my opinion, the discretion open to the President under section 108(5) of the Act is sufficiently broad to encompass circumstances where it is desirable to prevent the future conduct of a proceeding being contrary to the principles of natural justice. However, in this respect it is wise to recall the words of Kellam J in the Metrospan when, after noting the breadth of discretion, he observed:

The section clearly cannot be used to achieve a de facto review or a de facto appeal of what has happened heretofore in the hearing. Neither is section 108 to be used to signify the disapproval of the President as to the manner of the conduct of the hearing by the member or members concerned. Indeed it cannot be used in any way to compromise the independence of the tribunal in question.

In that context Justice Kellam observed that the power would be exercised rarely.

17 At this stage I observe that the essential and fundamental nature of the submission that I reconstitute the tribunal is based upon a concern that the future conduct of the proceeding before Judge Bowman would involve a breach of natural justice. In turn this submission is based upon the allegation that there has already been a breach of the principles of natural justice, in that Judge Bowman has heard the case and made rulings in the case in a manner that showed bias or created a reasonable apprehension that he was biased. Thus matters relied on are matters which could be ventilated on appeal to the Supreme Court - as questions of natural justice and bias obviously raise questions of law. What, then, should I adopt as the relevant principle in exercising the discretion in section 108(5), in circumstances where the essential basis of the application is a matter that could found an appeal to the Supreme Court?[5]

18 I think the appropriate principle that should guide me in the exercise of the discretion in section 108(5) of the Act in a natural justice context is that I should not exercise the discretion to reconstitute the tribunal unless there is an obvious and clear cut case that the future conduct of the proceeding would involve a breach of the principles of natural justice. I do not think that the relevant principle should be the same that would apply if I was sitting in the Supreme Court, or as a member of the Court of Appeal of the Supreme Court, in determining whether or not there had been a breach of natural justice. To adopt the latter as the principle would be, in effect, to substitute myself for, in this case, the Court of Appeal, which is neither appropriate nor within the legislative intent in relation to section 108(5).

Should I exercise the discretion to reconstitute the tribunal?

19 I am not satisfied that there is an obvious and clear cut case that the future conduct of the proceeding before Judge Bowman would result in a breach of the principles of natural justice.

20 As I have observed, the arguments that have been presented to me in support of the present application are fundamentally the same as those which were raised before Judge Bowman himself in the application that he disqualified himself. Judge Bowman's reasons for rejecting that application are comprehensive. Further, in my opinion, the reasons are cogent and forceful. That is not to say that the Court of Appeal of the Supreme Court might not ultimately find that Judge Bowman should have disqualified himself. But it is sufficient for me to conclude that the matters relied upon do not establish an obvious and clear cut case that the future conduct of the proceeding would involve a breach of the principles of natural justice. Indeed it is apparent from reading the ruling made by Judge Bowman that some of the grounds relied upon were extremely wide reaching; and I would suggest that some of them appear flimsy. That does not determine the question, but it does tend to have the effect of undermining the force of the present application.

21 The crux of the matter is this. Judges must make rulings. Judges must make decisions. When a judge makes a ruling or a decision, more often than not someone will be displeased. In the course of a lengthy proceeding there will often be rulings at an early stage which will not only affect the future course of that proceeding but will be displeasing to one or other of the parties. If one were to take an unduly sensitive approach to the consequences of rulings, it would make the administration of justice impossible. A robust view must be taken. It must be accepted that when a judge makes a ruling during the course of a case, that does not mean that the judge is incapable of fairly and impartially making future rulings, or a final decision, in the case. Certainly I am not satisfied that the circumstances of the present case are such that if I was to refuse to constitute the tribunal this would be very likely to produce the result that there would be a breach of natural justice in the future.

22 In the course of his detailed submissions to me, Mr North SC, for Bradto, relied upon a number of other matters that he said were not raised before Judge Bowman. He submitted that rulings and views expressed by Judge Bowman differed from rulings and views on similar topics made by Deputy President Macnamara. But assuming that is the case, and I make no finding on that, it is not of any consequence. Judicial officers commonly take a different approach to the issues before a court. Surely there can be no better example than this than looking at the High Court of Australia itself. The fact that judicial officers take a different view of the law or the facts in a case does not mean that one or other of them is biased or should be apprehended to be biased. The law does not operate like a digital computer, where the same output is generated for a given input. It involves human beings and human beings do not judge identical facts identically.

23 Another matter relied upon was the manner in which Judge Bowman's ruling of 10 November 2005 was expressed. Certainly the reasoning is forceful, as well as being comprehensive. The suggestion was, in effect, that the forceful manner in which the reasons are expressed reinforces the apprehended bias which was the subject matter of the ruling. I do not agree. Judges are entitled to express themselves forcefully. As a senior judge of the Court of Appeal observed in another context "we do not want the law to nurture a nation of ninnies"[6]. Those involved in litigation are entitled to make robust and forceful submissions. Equally judges determining matters are entitled to give robust and forceful reasons. The day when colour goes out of the law will be a sad day. The fact that a ruling or judgment is expressed forcefully, even colourfully, is not a basis for concluding that the judge is not impartial or should be apprehended to be biased.

24 Another ground Bradto relied upon was that it would be desirable for the proceeding in which Maztan is a party to be heard in conjunction with the present proceeding and that if Judge Bowman was not prevented from continuing to hear the present proceeding, it would mean that he was likely to hear the Maztan proceeding. It was said that this would, in turn, put Maztan in a position where it was subject of certain adverse rulings before it even started. It is certainly true that where there are related proceedings it is desirable, more often than not, that they be heard together. However I am not persuaded that the proceeding initiated by Bradto and Maztan should necessarily be heard and determined at the same time as the present proceeding. The proceeding brought by the State is for an interlocutory injunction. Ordinarily a party seeking that form of relief is entitled to have a decision made, one way or the other, promptly. On some occasions the joining of such an application with another proceeding may prevent that from occurring. This may be such an occasion. Further I accept the submission made by Mr Garde QC, for the State, that it would have been open for Maztan to have sought to join in the current proceeding if it thought that it would advance or protect its interests. It has chosen not to do so.

25 From time to time proceedings will occur in the tribunal which determine a question concerning particular land or a particular matter and then be followed by another proceeding concerning the same land or the same matter. As a general practice I believe there is merit in the same tribunal being appointed to hear the subsequent matter. This not only promotes efficient case management, but also it is in the public interest by promoting consistent decision making. The fact that the member or members appointed to hear the second proceeding will have formed views as a result of the first proceeding does not mean that they are incapable of bringing an impartial mind to bear in determining the second proceeding. Judicial decision making involves repetition. It often occurs that persons before a court have previously been before that court, or issues before a court have previously been before that court. The administration of justice would not operate satisfactorily if it was sufficient to disqualify a judge to point to the fact that the judge had previously dealt with a person or decided an issue that was to be re-ventilated.[7]

26 Mr North also relied upon my decision in Tomasevic. That was a most unusual case. Indeed it may well have been the most troublesome case that I ever been associated with as a barrister or judge. In that case I anticipated that the final hearing of the application would require a member of the tribunal with great experience and skill. For that reason I decided that the hearing be before a judicial member of the tribunal, indeed a judicial member who was experienced in dealing with litigants in person. That person was Judge Dove. Because I decided that Judge Dove should hear the proceeding it was sensible that he also hear matters concerning what summonses should be issued, as it involved the same factual matters. I do not see a parallel between Tomasevic and the present proceeding. Indeed, if any parallel is to be drawn it is that Judge Bowman, an experienced judge and one of the most senior members of the tribunal, should continue to hear and determine the matter.

27 I do not propose to exercise the discretion to reconstitute the tribunal.

28 It has been unnecessary for me to consider the matters raised by Mr Garde that Bradto has been engaged in delaying tactics and to reconstitute the tribunal would be to further this improper objective. Certainly the case has taken a most unusual and prolonged course but, in the circumstances, it is unnecessary for me to take this factor into account in order to reach my conclusion.

[1] [2000] VCAT 44.

[2] (2001) 18 VAR 287.

[3] [2004] VCAT 614.

[4] [2005] VCAT 423.

[5] This issue is one which will usually arise in the context of natural justice.

[6] Berrigan Shire Council v Ballerini [2005] VCSA 159 at [6] per Callaway JA.

[7] See, for example, Kay v Legal Profession Tribunal [2000] VSC 463 per Beach J.