For State of Victoria (Department of Education and Training)

(given orally at the hearing and subsequently revised)

1 In this proceeding the complainant alleges that the respondents have discriminated against him. A hearing has been set down for 21 March 2005.

2 One of the issues that has arisen prior to the hearing of the complaint is whether or not the tribunal should allow the complainant to serve a witness summons on some eleven persons. The complainant has provided written documentation to the tribunal as to why those persons should be summonsed and as to the evidence which those persons may give at the hearing.

3 The respondents have indicated that they intend to call 14 witnesses at the hearing. At least some of the witnesses the respondent proposed to call are witnesses that, at one stage, the complainant wished to summons. Because the respondent is calling some witnesses it is unnecessary for the complainant to further pursue the application to summons those witnesses.

4 However there remains, on my calculations, some 13 witnesses that the complainant wishes to summons, together with another four witnesses which the complainant has indicated today he wishes to summons.

5 On 17 February 2005 Deputy President Coghlan held a directions hearing to consider whether or not any directions should be made either authorising such witness summonses or directing that such witness summonses not be permitted. The hearing was unorthodox in that the complainant told the tribunal that he had a migraine headache and was unable to proceed with the hearing. At some stage during the hearing the complainant left the hearing and the balance of the hearing proceeded without the complainant being present, during which time submissions were made on behalf of the respondents concerning the question of witness summonses. The content of the hearing was transcribed, thus there is a written record of the submissions that were made.

6 In the course of the hearing before Deputy President Coghlan the complainant effectively made a submission, pursuant to section 108 of the VCAT Act, that Deputy President Coghlan decide that the tribunal should be reconstituted for the purpose of making directions about witness summonses; and that Deputy President Coghlan not be part of the reconstituted tribunal. Various reasons were advanced. For example, it was said that, on 9 December 2004, Deputy President Coghlan had struck out a related complaint involving the same parties in Proceeding A325/2004. Deputy President Coghlan did not uphold the section 108 submission.

7 Section 108 of the VCAT Act provides that if the tribunal rejects an application to reconstitute, a party may require the matter to be referred to the President. It also provides that after the President allows parties to make submissions, he may reconstitute the tribunal.

8 I have heard the parties today. Essentially the complainant says that the tribunal should be reconstituted for the purpose of deciding the question of witness summonses because there is a perception that Deputy President Coghlan might not be able to act impartially. This perception is said to be based upon the fact that she struck out the related complaint in Proceeding A325/2004, that in February 2002 she struck out the present complaint (which has now been reinstated) and because during the hearing on 17 February 2005 she is said to have acted in a way that was not fair to the complainant.

9 The respondents have opposed the application and, in doing so, they have submitted that there is nothing in Deputy President Coghlan's conduct which would prevent her from impartially determining the matter of witness summonses. Further, relying upon the decision of Kellam J in Metrospan Developments Pty Ltd v Whitehorse City Council, the respondents submit that the power in section 108 should be exercised cautiously. In particular it is said that the power should not be used to achieve a de facto review or a de facto appeal of what has happened heretofore in the hearing.

10 In the recent decision in Dental Practice Board of Victoria v Varnavides [2005] VCAT 240 I examined the question of when a reasonable apprehension of bias might arise in the context of a judge having previously heard and determined a matter between the same parties related to the proceeding then current. I referred to cases such as Ebner v Official Trustee in Bankruptcy (2000) HCA 63, Kay v Legal Profession Tribunal [2000] VSC 463 and Livesey v NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288.

11 Based upon the principles outlined in those cases, as explained in the Varnavides decision, I am not satisfied that Deputy President Coghlan could not impartially hear and determine the issue of witness summonses which arises in the directions hearing before her.

12 But that is not the end of the matter. Section 108(5) of the VCAT Act vests a broad discretion in the President of the tribunal. It is true that that discretion must be exercised in a responsible manner; and it is also true it ought be exercised in a manner that discourages forum shopping or other improper practices. But it seems to me that it is highly desirable in this case that the question of what witnesses should be permitted to be summonsed be determined by a tribunal constituted with the same member as will be the member constituting the tribunal for the substantive hearing of the complaint. In order to determine questions concerning the relevance of particular evidence, it is necessary to examine the matter in some detail. It is wasteful of the tribunal's resources, and contrary to the public interest, for member X to spend time considering whether particular evidence will be relevant, to then have member Y, hearing and determining the case, to need to consider essentially the same question. Hence, notwithstanding my rejection of the complainant's case concerning Deputy President Coghlan, I conclude that it will be in the interests of justice and the good administration of the tribunal if the question of what witnesses should be permitted to be summonsed by the complainant is determined by the same person who will be hearing and determining the substantive proceeding scheduled to commence on 21 March 2005. As that person will not be Deputy President Coghlan as, in exercise of my powers under section 64 of the VCAT Act, I propose to appoint some other member.

13 Whilst I have a particular member in mind to hear the substantive portion of the proceeding, there are still some logistical matters that need to be addressed before the identity of the member is announced. But it is appropriate to exercise my powers under section 108 to reconstitute the tribunal for the purpose of determining the question of witness statements by having that matter determined, not by Deputy President Coghlan, but by the tribunal constituted in the same manner as it will be constituted for the purpose of the hearing on 21 March. I propose to decide who that person will be in the next couple of days. That will enable that member to consider the question of witness summonses, hopefully by the end of Tuesday next week, and to provide a written direction to the parties as to whether or not those witness summonses are permitted. It will mean that the member engaging in that exercise will also be effectively preparing for the proceeding itself which is scheduled for the following Monday, that is 21 March 2005.

14 I propose to make certain other directions today. These directions can be given by any member. These relate to a request by the Herald-Sun newspaper to inspect this and the related file; and also a direction as to the procedure to be followed in relation to the question of further submissions in relation to witness statements.