1. The Senior Member then made procedural orders that were sent to the parties.
2. Presumably referring to those orders, on 10 October 2022 the applicant sent an email to VCAT, referring to the Senior Member:

Surely you do not expect me to complete an Order she has issued if I have made complaints against her and wish to have her removed. This will only give her a chance to cover up her prejudice and bias against me.

1. On 2 October 2022 the applicant filed an application seeking orders to stop the Senior Member from conducting any hearing in any proceeding he was involved in.

CONDUCTING THE HEARING ON THE BASIS OF DOCUMENTS

1. Section 100 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) provides:

(1) If the Tribunal thinks it appropriate, it may conduct all or part of a proceeding by means of a conference conducted using telephones, video links or any other system of telecommunication.

(2) The Tribunal may conduct all or part of a proceeding entirely on the basis of documents, without the appearance of the parties or their representatives or witnesses, unless a party objects to all or part of the proceeding being conducted in this manner.

(a) a party objects to all or part of the proceeding being conducted in this manner; and

(b) the Tribunal is satisfied that the objection is not reasonable.

1. On 28 October 2022 I made orders setting out the substance of sections 100(2) and (3) of the VCAT Act. I indicated my intention to consider determining the application for reconstitution on the basis of documents. I allowed time for the parties to make submissions as to whether they objected to that course. No party objected. I have proceeded to determine the application on the basis of documents in accordance with section 100 of the VCAT Act.

(1) At any time before the conclusion of the hearing of a proceeding -

(a) a party may apply to the Tribunal for the reconstitution of the Tribunal for the purposes of the proceeding; or

(b) the President or a member of the Tribunal as presently constituted may give notice to the parties that the President or member seeks the reconstitution of the Tribunal for the purposes of the proceeding.

(2) If an application is made under subsection (1)(a) or notice is given under subsection (1)(b) -

(a) a presidential member, after allowing the parties to make submissions, may decide that the Tribunal should be reconstituted; and

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

(3) 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.

1. In Caspersz v Garry & Warren Smith Pty Ltd [2022] VCAT 1102 (21 September 2022) Justice Quigley, President, said as follows:

It is clear that on the plain meaning of the words used in s 108(1) that the jurisdiction of the Tribunal pursuant to this provision has a temporal component and may only be exercised when there is an actual hearing of the proceeding on foot. The words used presuppose that there is an event which has occurred at or during the hearing of the proceeding which has given rise to the circumstances which may require the exercise of the Tribunal's power to reconstitute the hearing.

In effect, what the Applicant seeks to do is to attempt to dictate who should or should not conduct any future hearing of his proceeding. This attempt at 'member shopping' is entirely inappropriate and if acceded to would tend to undermine the independence of the Tribunal and the Tribunal's processes.

1. In this proceeding, the hearing about which the applicant seeks reconstitution was the directions hearing. There is no other hearing scheduled at this time. There has been no allocation of any particular member to future hearings in this proceeding.
2. Section 108 does not, as Justice Quigley makes clear, allow this applicant or any person to direct the Tribunal as to who should or should not conduct future hearings. The hearing that was scheduled is in the past. It was a directions hearing that is now complete. There is no hearing to reconstitute. The application for reconstitution is therefore misconceived and is dismissed.