21-23, 30-31 March; 1, 4-6, 11-15, 18, 22 April, 2005

1. That the complaint made by the complainant pursuant to Section 134 Equal Opportunity Act 1995 be dismissed.

1 Before the Tribunal is an application by the respondents, pursuant to Section 78 of the Victorian Civil and Administrative Tribunal Act 1998, that the complainant's complaint against the respondents be dismissed.

2 The complaint comes before the Tribunal pursuant to Section 134 of the Equal Opportunity Act 1995. In essence, the complainant claims that the second respondent, Wood, discriminated against him on the grounds of race and impediment, which are two attributes identified by Section 6 of the Equal Opportunity Act. As to race, it is alleged that the respondent Wood made racial slurs to and of the complainant. As to impediment, it is alleged that the second respondent called the complainant a schizophrenic.

3 The complaint against the third respondent relates to the failure of the third respondent to investigate complaints made by the complainant to him that the second respondent had misappropriated school property and stolen school funds; that the third respondent had trumped up charges of unsatisfactory performance and serious misconduct; and that the third respondent having arranged for the complainant to be medically examined by Dr N Strauss, Psychiatrist, had put false material to the doctor which was designed to cause, and had the effect of causing, Dr Strauss to give a wrong and unsustainable opinion that the complainant was then (in August 2000) unfit for teaching duties. These matters were said to be evidence of discrimination by the third respondent against the complainant.

4 The first respondent was said to be vicariously liable for these acts of the second and third respondents.

5 In brief summary, the complainant was employed by the first respondent as a physical education teacher at Deer Park Secondary College from 1990 to July 2000. At all material times, the third respondent was the Principal of the school, although he was on secondment to another school in 1999. The second respondent was also a teacher at the school at all relevant times.

6 The complainant has alleged that he had evidence that the second respondent had stolen school moneys and misappropriated school property on several occasions, up to and including February, 2000. The complainant says that, having confronted the second respondent about these allegations and, after the second respondent, having said he would repay the school, had not done so, he reported the matter to those in authority at the school, including the Principal, and demanded an investigation. The complainant says that no proper investigation took place because, as I understand it, his superiors were protecting the second respondent. The complainant said that he declined advice from his superiors not to pursue his allegations.

7 Thereafter the Principal trumped up charges to which I have referred, removed him from teaching duties, and on receipt of Dr Strauss' report, had him suspended from teaching on the basis that Dr Strauss' opinion concerning his mental condition made it unsafe for him to teach.

8 The claims to the Equal Opportunity Commission were not resolved there and were referred to the Tribunal by the Commission on the 16th October 2001.

9 Particulars of Complaint were filed by the complainant on the 24th December 2001. The respondents' particulars of defence thereto were delivered on the 5th February 2002.

10 At a Directions Hearing on 2 September 2002 the complaint was struck out by reason of the complainant's failure to comply with interlocutory orders made at previous Directions Hearings.

11 It was reinstated by order of then Deputy President Davis, (now Her Honour Judge Davis, Vice President), following a hearing on the 30th August 2004.

12 The complainant sought to have subpoenas issued to secure the attendance of a number of potential witnesses and this led to a Directions Hearing on 25th November 2004 before Deputy President McKenzie, who gave leave for some subpoenas to issue but refused leave in relation to a number of other persons identified by the complainant as witnesses he wished to call. The outcome of this Directions Hearing did not appear to satisfy the complainant, for, with a further Directions Hearing listed for 2nd February 2005, he wrote to the Tribunal objecting to Deputy President McKenzie adjudicating on that or any further hearing. He did not attend the hearing on the 2nd February, which was adjourned to 17th February 2005 before Deputy President Coghlan. The purpose of the hearing was to determine whether additional subpoenas sought by the complainant should issue.

13 The complainant objected to Deputy President Coghlan conducting the hearing or any subsequent hearing. In the case of each Deputy President it was the complainant's assertion that the Deputy President was biased against him.

14 On the 9th March 2005, the President, Morris J, conducted a further Directions Hearing, as a result of which the proceeding was assigned to me. My first task was to determine, on the papers, whether any further subpoenas should issue. In the event, I ruled that subpoenas might issue to a further six witnesses, and refused leave for subpoenas to be issued in relation to a further thirteen people. I make the passing comment that, on several occasions during the hearing, the complainant sought to revisit these rulings, insofar as they were adverse to him, at times entering into lengthy discussion about the rulings, and his objection to them.

15 The trial commenced on Monday, 21st March 2005. Because of the Easter break, sittings were held on the 21st, 22nd and 23rd March, and the hearing resumed on Wednesday, 30th March. During the week commencing on 4th April 2005, the Tribunal did not sit on Thursday, 7th or Friday, 8th April, because the parties were before Senior Master Mahoney on the hearing of an application in another proceeding brought by the complainant against the first and third respondents.

16 The tenth hearing day was on Monday, 11th April, in circumstances to which I shall refer later.

17 On 12th April the hearing was adjourned, when the complainant did not attend. He sent in a medical certificate from his General Practitioner, Dr Khoo, stating that he was unfit to attend for two days. When the hearing resumed on Thursday, 14th April the complainant was again absent. On this occasion, the complainant forwarded a certificate from Dr Cheung, Psychiatrist, which stated the complainant was unfit to attend court that day. The hearing was adjourned to the afternoon of 15th April. On the 18th April 2005 the complainant did not appear. He wrote to the Tribunal saying he was unfit to attend. There was no medical evidence to support that assertion, although there was a certificate sent by the complainant relating to his attendance at a clinic on Saturday 16th April. That certificate did not suggest that the complainant was unfit to attend court on 18th April or at any other time.

18 The respondents opposed the application to adjourn, implicit in the complainant's letter. I declined to adjourn. My reasons therefore are to be found at Transcript pp.1137-1142. Mr Jacobs, counsel for the respondents, then continued his submissions seeking dismissal of the proceeding upon the ground that the respondents were unfairly disadvantaged by reason of the vexatious conduct of the proceeding by the complainant, a ground for dismissal given by Section 78 Victorian Civil and Administrative Tribunal Act.

19 On 21st March, 2005, the complainant sent to the Court a letter in which he alleged that acts of dishonest conduct had been committed by Deputy President Coghlan, Senior Registrar O'Keefe, the respondents' solicitors and respondents' counsel. A summary of these allegations is set out in a ruling I made on 22nd March (see Transcript pp.206-210). The principal complaint was that a letter of the 20th January, 2005, purportedly written to the Tribunal by the complainant, the substance of which related to matters about which one would expect him to write in the terms in which it was phrased, was a fabrication. Upon examination, it was clear that the allegations were without foundation. However that may be, the complainant took up almost two days of court time.

20 Having made that ruling, I asked the complainant to outline his case (see Transcript p.213). This request was ignored and the complainant spent the rest of the second day revisiting the question of potential witnesses (see Transcript pp.215-241).

21 Nor did my ruling conclude that matter. The complainant, on the fourth sitting day, 30th March, sought to have me set aside my ruling and reopen his claim, on the ground that he had fresh evidence which, he claimed would reveal that the letter of the 20th January was a forgery. A stalemate followed. I asked for the letters; the complainant refused to hand them to me until I set aside my ruling (see Transcript p.382). In that setting, I refused to do so (Ruling Transcript pp.383-385).

22 That refusal led the complainant to invoke the provisions of Section 108 of the Victorian Civil and Administrative Tribunal Act, which allows a party to apply for the reconstitution of the Tribunal. In this case, the application was that I disqualify myself from hearing the matter further. That application appeared to be based simply upon my refusal to set aside my ruling and reopen his application. I refused the Section 108 application, whereon the complainant required me to refer the question of reconstitution to the President, a right given by Section 108(4) of the Act. I adjourned the hearing; the President then heard the application and dismissed it. In doing so, the President said, at Transcript p.400:-

"In the present case the only basis relied on in essence is that Judge Dove has made a ruling contrary to Mr Tomasevic. That in itself does not mean that Judge Dove has or is likely to act other than impartially".

It's commonplace in litigation for rulings to be made contrary to the interests of a party. If the loser in relation to each ruling would claim that the judge was not likely to act impartially in relation to the further conduct of the case, that would make the conduct of litigation impossible."

23 Further, at Transcript p.404, the President advised the complainant to focus upon his discrimination claim. The complainant was ordered to pay $800.00 costs in relation to the application.

24 Notwithstanding the advice of the President to the complainant that he get on with his claim, the complainant occupied the remaining time until the luncheon adjournment, revisiting matters previously debated or pursuing other matters at great length which should have been disposed of in a few sentences. Late in the afternoon, the complainant commenced his evidence.

25 I return briefly to the third day of the hearing, 23rd March. A witness, Dennis Keillor, had been brought from South Australia by the complainant, and he gave evidence that day. A statement of his evidence was tendered. Because no objection was taken, I allowed the complainant to ask further questions of him. In the result examination in chief ran for some 3 hours. Cross-examination took about 1 hour. Re-examination, which lasted about 30 minutes, concluded the day's hearing.

26 On the fifth sitting day, 31st March, the first half hour was taken up with largely irrelevant ruminations by the complainant. Thereafter, in a circuitous manner, applications were made by the complainant either that I give him leave to amend his complaint to add allegations of sexual harassment by the third respondent, or that he have leave to give evidence of the conversations in which the allegations of sexual harassment were made. I refused the former and granted the latter of these applications. My reasons are set out in a ruling to be found at Transcript pp.522-525. I refused an application on the part of the respondents, brought pursuant to Section 101 of the Victorian Civil and Administrative Tribunal Act, that such evidence be heard in private and not be published.

27 The afternoon was occupied by further evidence by the complainant limited, almost exclusively, to the tendering of documents, punctuated by speeches by the complainant, on occasion ventilating matters about which rulings adverse to him had earlier been made; see, for example the passage, at Transcript pp.549-550, concerning the student Gosev.

28 April 1 was the sixth sitting day. The complainant continued to give evidence. Much of the discussion was argumentative on the complainant's part. (See Transcript p.593, line 27 to p.594, line 6; p.596, line 8 to line 15; p.603, line 20 to p.604, line 4; p.645, line 30 to p.650, line 12; p.661, line 26 to p.663, line 24). Otherwise the complainant's evidence was restricted to tendering documents, or attempting to do so.

29 April 4 was the seventh sitting day. The complainant continued to produce documents, which he sought to have put into evidence. On a number of occasions there was nothing to indicate the relevance of the documents. On other occasions I was handed a pile of documents (see Transcript p.689, line 23 to p.690, line 21; p.710, line 14 to p.712, line 5) and left to determine what they were and, indeed, whether they were already in evidence.

30 He continued to be argumentative and unwilling to accept rulings made (e.g. Transcript p.701, line 10 to p.702, line 6; p.706, line 23 to p.707, line 22; pp. 719-720) and persisted being irrelevant and offensive (see Transcript pp.719-723; 723-726; 728-731; 737-740).

31 April 5 was day eight of the hearing. It opened in a familiarly circuitous manner (see Transcript pp.755-768; p.770, line 3 to p.779, line 25; p.782, line 16 to p.787, line 23). When submissions were made about certain documents the complainant wished to put into evidence, the discussion continued in a similar circuitous manner.

32 His activity during lunch time that day was devious (see Transcript pp.819-829). His statement that he did not understand the order of Morris J falls flat when regard is had to what he stated at Transcript p.657, line 20 to line 26.

33 Despite an order of Morris J, limiting inspection of the Tribunal file to the parties only, save by order of the Court, the complainant took a press reporter with him when he sought to inspect the file during this lunchtime.

34 Early in the afternoon, I made rulings concerning two sets of documents upon which the complainant wished to rely; one was a set of documents he wished to put into evidence, and the other a witness statement and attachments he sought to use. I ruled against him in relation to each set. The complainant did not accept these rulings and sought not only to address his anger at them, but also sought, at length, to regurgitate his apparent irritation at the ruling I made about the supposedly fabricated documents, repeating his accusations of dishonest conduct by Deputy President Coghlan, Mr Jacobs, counsel for the respondents, and Senior Registrar O'Keefe (see Transcript p.843, line 2 to line 5). The complainant's largely irrelevant disapproving observations took the rest of the afternoon to recite (see Transcript pp.837-858). During that time, the complainant made a further application based on Section 108 of the Act, based upon no firmer footing that my rulings were wrong and followed earlier rulings infected by error.

35 On the 6th April (day nine), I ruled against the complainant on the Section 108 application (Ruling Transcript pp.861-2). The complainant required the President to review the matter. Before I adjourned, the complainant took the opportunity to complain at length about the absence from the transcript of two unrevised rulings (see Transcript pp.863-869). The President sat and heard the referral, during which hearing the complainant addressed him at length (see Transcript pp.869-892. Morris J refused the application and again ordered the complainant to pay $800.00 costs. Pertinently, Morris J went on to draw the complainant's attention to the provisions of Section 78 of the Act, and to advise him concerning its potential effect upon him. The advice did not cause the complainant to modify his behaviour. The complainant's application wasted some 2 hours of court time. When the hearing resumed before me, he then addressed the court at length about several issues, revisiting earlier rulings and otherwise for the final 50 minutes prior to lunch.

36 During the afternoon the complainant completed his evidence in chief, and, for the last hour of the day, he was cross-examined. At the end of the day the complainant laid down the law to me (see Transcript p.979, line 12 to p.981, line 21).

37 At the request of the parties, the Tribunal did not sit on either the 7th of 8th April, because the parties were, first preparing for and, then engaged in, the hearing of an application before Senior Master Mahoney in the Supreme Court.

38 Shortly before the hearing resumed on Monday, 11th April, the Tribunal received a facsimile transmission from the complainant. It is set out at Transcript p.985. Essentially the complainant alleges that I and/or the transcription service had deliberately altered the transcript to falsify the evidence. He claimed that there was manipulation and sabotage of his case. Obviously that is a charge directed against me. Finally, he made a demand that the tapes of the hearing be released to him for analysis and that the hearing be adjourned whilst that was done.

39 The accusations were of such a serious nature that one might have expected the complainant to have a sound basis for them. However, as I understand it, he was saying no more than that the unrevised versions of the two rulings I made on 5th April had been altered in the revised versions of those rulings. (The revised rulings are to be found at Transcript pp.830 to 836). To demonstrate that no alteration or addition had been made to the substance of each ruling, and consistently with the complainant's request, I determined to have the relevant part of the master disc identified and then have the rulings as I delivered them orally played back in open court. As to the discussion on this matter, I refer to Transcript pp.985-1003.

40 My decision to have the rulings played back produced a belligerent protest from the complainant, the nature of which is recorded at Transcript p.1003, line 9 to p.1006, line 17; because of what it portrays, I reproduce it here:

"His Honour: Now that the complainant has the revised rulings that are to be found between pages 830 and 836 of the transcript, I propose on this one occasion only, merely to show how baseless and outrageous his allegations are, to play the tape of the ruling as I pronounce them on Tuesday afternoon last, and the rulings will be transcribed and appear on the transcript as part of the general transcript in their unrevised form. Yes, do you have the tape? Before you do that - Mr Tomasevic you'd better have those two rulings in front of you just so you can follow.

Mr Tomasevic: Your Honour, I would like to have ...

Mr Tomasevic: If you refuse that, I'm going to call Justice Morris to step in straight away, rely on this one or eight section again.

His Honour: Sit down, I have said I am playing the tapes of the transcript. Sit down.

Mr Tomasevic: Your Honour, I did not request to play tape. I request to have in my possession, Your Honour.

His Honour: Sit down. Whether you request it or not, just sit down.

Mr Tomasevic: Your Honour, I am relying on 108 for Justice Morris to step in.

His Honour: Mr Tomasevic, as Mr Justice Morris pointed out to you s.78 of the VCAT Act provides that the tribunal, if it believes that a party to the proceeding is conducting the proceeding in a way that unexpectedly disadvantages another party to the proceeding by conduct such as 1(F) vexatiously conducting the proceeding, the tribunal may order that the proceeding be struck out. Now you're driving me very close to doing that.

Mr Tomasevic: Your Honour, doesn't - I'm not doing what says that ...

His Honour: Mr Tomasevic, sit down. I order you to sit down.

Mr Tomasevic: Thank you, Your Honour. You can do whatever you want, Your Honour.

His Honour: I have said I'm going to play the tapes.

Mr Tomasevic: Your Honour, I don't want to listen tape, I want to have tape in my possession.

His Honour: Be quiet, be quiet. You have no right to make those statements. I have said I am going to play the tapes.

Mr Tomasevic: Then, Your Honour, put it in writing what you says now that I have no right to request what I did and I refuse to listen to tape because I - it is my legal right to have tape in my possession. And this is my request.

His Honour: Mr Tomasevic, that is not your legal right. Will you sit down.

Mr Tomasevic: Well, Your Honour put it in writing that it is not my legal right.

His Honour: I don't have to put it in writing. I will not put it in writing. I say it is not your legal right.

Mr Tomasevic: Your Honour, I refuse to listen to tape because this is, was not my request.

Mr Tomasevic: Your Honour, everyone is responsible for their actions. And I remind you one more time, you are not the law, you are representing the law. And this is my legal right. I don't want to listen ...

His Honour: I refuse to accept it's your legal right to have the tapes.

Mr Tomasevic: Well, Your Honour, you said before ...

His Honour: You have made the request. I have said you are not entitled to do so. Now, sit down.

Mr Tomasevic: Your Honour, what is the reason for that?

Mr Tomasevic: Well, Your Honour, why is so difficult to put in writing then if be what you said?

His Honour: It will be on the transcript. You will have it in writing.

Mr Tomasevic: Your Honour, this is not enough, I refuse to listen ...

His Honour: Sit down, I refuse to listen to you. Sit down.

Mr Tomasevic: Well, Your Honour, I think that my legal rights, you don't respect my legal rights ...

Mr Tomasevic: ... and the law should be the same for everyone.

Mr Tomasevic: Well, I will, Your Honour, but this is not fair definitely. And is against the Equal Opportunity.

His Honour: That's all right, you can shut your ears, yes. Can I just note for the transcript that Mr Tomasevic is sitting in court with his forefinger of each hand struck into each ear. Yes. Now play the tape."

(Note: The Transcript set out above has not been revised).

41 Whilst the rulings as I delivered them were played back, the complainant sat with his head down and the index finger of each hand in his ears. Once the recital had concluded, the complainant refused to acknowledge that he was aware of what was happening, and I adjourned temporarily so that a security officer might alert him to that fact.

42 On my return, I was subjected to further offensive comment from the complainant. At Transcript p.1012, line 15 to 17, he said:

"Your Honour, my health is much more important than your retiring cake with this cream on top of the cake from Minter Ellison."

43 Apart from what was said, the manner in which the comment was made left no doubt that he was inferring that I had been bribed to reach a final conclusion adverse to the complainant.

44 At line 25 to 26 he said:

"As soon as you can retire, it will be best interest for the public."

45 At Transcript p.1013, line 22, having said my task was to administer justice, he continued:

"Not to protect a guilty party by searching for anything possible that will help them."

46 During this period the complainant complained of a migraine headache. At Transcript p.1022, Line 14 I asked him to describe the signs of his migraine headache; to describe what he was feeling. He replied that he refused to answer the question (line 19).

47 I adjourned the morning's hearing 15 minutes early and, at his request, a quiet room was found for him over lunchtime.

48 During the morning, I asked my Associate to telephone the solicitors representing the complainant in the Supreme Court application to ask them to attend at 2;15pm. The principal of the firm and another solicitor attended. Ms. Cirkovic, the principal, told the Tribunal that the complainant had not been advised either by her or her colleague that he had a legal right to the tapes, although she believed they told him to make a written request for the tapes if he were not happy with the transcript. This explanation produced a series of long speeches from the complainant. These revealed that he was not suffering any impediment of concentration memory or reasoning. He was showing no external signs of distress nor did he appear to be impeded by a migraine or other kind of headache. (See Transcript pp.1030 to 1043).

49 Shortly before 3:00pm I adjourned the Court so that the complainant might speak to Dr Cheung, his psychiatrist. The complainant reported that Dr Cheung felt he sounded distressed over the telephone and that it was not a good idea for the hearing to continue. Although I felt considerable doubt whether the complainant was unfit to continue, I decided to adjourn for the day. Prior to the adjournment, Mr Jacobs foreshadowed an application pursuant to Section 78 of the Victorian Civil and Administrative Tribunal Act.

50 As I have stated earlier, the Tribunal did not sit on the 12th, 13th and 14th April.

51 The hearing resumed shortly at about 2:45pm on Friday, 15th April.

52 On the 15th April, when the Tribunal resumed, Mr Jacobs sought to make submissions in support of his proposed Section 78 application. The complainant interrupted to say that he had a few things to request. Then followed a rambling discourse which variously questioned the need to sit that afternoon, that he was likely to receive money from a philanthropist in China to finance his fight for justice, that he had a legal right to the tapes for the entire ten to eleven days the hearing had occupied, that he requested time to shop around for a solicitor so that neither Mr Jacobs nor the Tribunal would continue to be insulted by him (Transcript p.1076, line 30), that earlier I had refused to permit Mr Jacobs to make an application pursuant to Section 78, that my rulings were wrong and unacceptable to him, that I had made many errors, that I had changed the meaning in rulings I gave, that I should have retired a long time ago (Transcript p.1091, line 16), that the Section 78 application should not start that afternoon, and finally that he was intending to make a Section 78 application on the following Monday.

53 Despite the complainant's protest, Mr Jacobs commenced his submissions late on the Friday afternoon.

54 What is important about the period of 40 to 45 minutes during which the complainant addressed me is that he did not appear to be emotional or upset. He ranged over a wide spread of subjects. He spoke without notes. He showed neither impairment of memory nor of concentration. In fact his demeanour suggested strongly that he was enjoying being on centre stage. It was my clear impression that he was talking to thwart any attempt to have a meaningful hearing that afternoon, and that there was conscious deliberation motivating his actions. These passages are to be found between Transcript pp.1068 and 1100.

55 On the 18th April 2005, the complainant did not attend. I have set out the events surrounding his absence in my reasons for deciding that the hearing proceed that day. I refer to Transcript pp.1137-1142 and I incorporate what I said there into these reasons.

56 Mr Jacobs completed his submissions during the afternoon of the 18th April, having resumed the same at 2:25pm that day.

SECTION 78 VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL ACT

57 Since then I have taken the opportunity to refresh my memory of the hearing, by further reference to the transcript. I have felt it necessary in the course of these reasons to give page references. Reproduction of the references verbatim in these reasons is impracticable because of the mountainous pile of transcript which it would be necessary to transcribe.

58 Section 78 of the Victorian Civil and Administrative Tribunal Act is in these terms:

"(1) This section applies if the Tribunal believes that a party to a proceeding is conducting the proceeding in a way that unnecessarily disadvantages another party to the proceeding by conduct such as:

(a) failing to comply with an order or direction of the Tribunal without reasonable excuse; or

(b) failing to comply with this Act, the regulations, the rules or an enabling enactment; or

(c) asking for an adjournment as a result of (a) or (b); or

(e) attempting to deceive another party or the Tribunal; or

(g) failing to attend mediation or the hearing of the proceeding. [Subs (1) am Act No 51, 2000, s 19.]

(a) order that the proceeding be dismissed or struck out, if the party causing the disadvantage is the applicant; or

(b) if the party causing the disadvantage is not the applicant -

(i) determine the proceeding in favour of the applicant and make any appropriate orders; or

(ii) order that the party causing the disadvantage be struck out of the proceeding;

(c) make an order for costs under section 109.

(3) The Tribunal's powers under this section are exercisable by the presiding member.

[S 78 am Act No 51, 2000, s 19.]"

Of particular relevance to this application are clauses (d), (f) and (g).

59 As far as I am aware, Section 78 has not been employed in relation to the actual conduct of the hearing of a proceeding, although applications pursuant to its provisions have been made on a number of occasions where parties have failed to comply with orders made on Directions Hearings or where parties have failed to attend hearings.

60 The section has been considered in detail by Ashley J in Bell Corp Victoria Pty Ltd v Stephenson [2003] VSC 255. His Honour (at para 51) set out a number of matters which need to be taken into account by the Tribunal when considering an application under Section 78 of the Act. Bearing in mind that Ashley J was hearing an appeal against an order dismissing an application by reason of a party's failure to comply with an order made upon a Directions Hearing, insofar as they relate to this application, I identify them as follows:

(a) To determine the nature of the subject matter of the belief formed under sub-section (1).

(b) Having regard to other provisions of the Act and particularly Sections 75-77, the operation of Section 78 should be limited to those cases which cannot otherwise be considered and determined by reference to other provisions of the Act, and the remedy given by sub-section (2) shall be used as one of last resort.

(c) The attainment of justice is a matter of paramount importance.

(d) The right of a party to have a determination on the merits is a consideration of great significance.

(e) Consideration is required to be given to the question whether a costs order might meet the justice of the situation without resort to the very serious consequences of an order under Section 78(2).

61 Central to all these matters is the underlying principle that justice must be done between the parties.

62 The complainant's conduct in Court from the fourth day of the hearing onwards, and the correspondence he has addressed to the Tribunal to which I have made passing reference, make it clear that he sees me as a Judge who does not appear to him to be favourably disposed towards his complaint. In that regard, I refer to his protests about rulings I have made, his frequent regurgitation of his submissions concerning them, his fault finding with me, and his recurrent employment of Section 108 of the Victorian Civil and Administrative Tribunal Act to have me either disqualify myself or to have the President disqualify me. On occasions, the complainant stated he relied upon Section 108 without ascribing a reason therefor. By way of example, I refer to the passage at Transcript p.1035, when the following appears:

"Mr Tomasevic: I have to repeat myself then again. I am now again requesting 108 section, that Mr Justice Morris President, step in for a third time."

63 I note also that, earlier on that day, 11th April, the complainant had made a demand for the release of the tapes to him, and continued:

"If you refuse that, I am going to call Justice Morris to step in straight away, rely on this one or eight section again (Transcript p.1003, line, 26 to 28)."

64 The Australian Concise Oxford Dictionary defines 'vex', inter alia, thus

(Law) not having sufficient grounds for action and seeking only to annoy defendant ..."

65 There are innumerable cases where Courts have been called upon to define the terms "vexatious litigant" and "vexatious proceedings".

66 The authorities in regard to those terms seem to me limit those terms to circumstances where the litigation has been undertaken:

s

maliciously or with an improper motive;

s

without foundation; being untenable so that it cannot proceed;

s

to annoy or embarrass the opposite party

Although the word "vexatious" may have a broader meaning when used in Section 78(1)(f) than that given to it when used as a qualifying adjective in relation to the words "litigant" or "proceedings", for present purposes it is not necessary to consider that question further.

67 The relevant wording of Section 78(1)(f), which is the principal ground relied upon by the respondents, requires me to consider whether I form the requisite belief that the complainant has been vexatiously conducting the proceeding. I conclude that in the present case, it requires me to determine whether he has conducted the proceeding, or a relevant part of it, with an improper motive or so as to annoy the opposite parties.

68 I am satisfied that the complainant's conduct, to which I have referred in considerable detail in these reasons, particularly from the fourth sitting day onwards, was such that he was guilty of conducting the proceedings with an improper motive, that motive being to prevent the trial being brought to a conclusion whilst I was presiding. Further, such conduct has had as a necessary effect that of being an annoyance to the respondents, both in terms of costs and in the wasting of resources whilst witnesses are put on hold, and in terms of frustration for the second and third respondents, who, without doubt, are concerned to have the proceedings heard and determined.

69 The tactics seem to me to have been deliberate. I refer to the time wasting and the recurrent demands that I disqualify myself. It seems to me also, that by his insulting and offensive comments the complainant has been consciously endeavouring to cause me, whether by anger, frustration or otherwise, to make observations which might justify a charge of bias against him on my part.

70 The complainant has made the point on more than one occasion that he is out of work and impoverished. His utterances in this regard suggest he will not have the means to meet any costs order if one were made against him. To the respondents, the complainant's time wasting and his endeavours to abort this trial have two disadvantageous outcomes; first that their costs are being increased in a way which is unfair to them; and, secondly that, in the event that any order for costs is made in their favour against the complainant, they will have little or no prospect of recovering them or any part of them.

1. That the complainant has been conducting the proceeding vexatiously in the ways I have identified above;

2. That the conduct has been persistent and deliberate;

3. That the respondents have been unfairly disadvantaged by the complainant's conduct.

72 Having made these findings which bring Section 78(2) of the Act into operation, I need to consider what orders, if any, I should make. In doing so, I give full consideration to the finality of an order dismissing or striking out the complaint. As I have stated, it is necessary that I have regard to the matters identified by Ashley J as requiring consideration when exercising the discretion given by Section 78(2).

73 For reasons I have expressed, a costs order directed to compensating the respondents for the time wasted by the complainant is unlikely to be of any value.

74 I do not believe that the circumstances here can be considered within the framework of the Act, beyond the specific provisions of Section 78.

75 I am satisfied the point has long been past when I should continue to give the complainant the opportunity to have the matter heard to its conclusion on the merits. That, indeed, is not the complainant's desire unless he can get another decision maker. He has, I believe, made that clear and abundantly so.

76 I have not made comment upon the strength of the complainant's claims. However, in relation to the second respondent, it will be oath against oath. Even if the complainant succeeded against the second respondent, apart from obtaining an apology, any relief would be quite minor, given the nature of the complainant's claims.

77 The claims against the third respondent would have more significant consequences if they succeeded. The third respondent denies the complainant's allegations and, if the respondents' witnesses swear up to the witness statements which have been filed, the complainant may experience difficulty in succeeding.

78 The complainant raises no more against the first respondent than that it is vicariously liable for the acts of the second and third respondents.

79 Of course, after all these years, there is a need to bring finality to this litigation.

80 History runs against the complainant. Deputy President McKenzie made orders of which he did not approve and he sought to have her disqualified from hearing the complainant. Deputy President Coghlan made orders contrary to his interests and he sought to have her disqualified. My initial ruling was against him and he sought to have me disqualified. Whenever, thereafter, I made a significant ruling which was not in his favour, he repeated his demand that I disqualify myself or be disqualified. It is impossible to envisage a hearing running to its conclusion, for, no matter who hears it, rulings will be made against him, which will cause him to seek the removal of the decision maker.

81 In all the circumstances, I am satisfied that the respondents, who bear the onus in relation to this application, are entitled to an order that the complaint be dismissed, there being no other or lesser order which appropriately might be invoked in the circumstances.

82 Accordingly, pursuant to the provisions of Section 78(2) of the Victorian Civil and Administrative Tribunal Act, I order that the complaint herein be dismissed.

83 I will hear the parties concerning costs.