MEDIUM NEUTRAL CITATION: [2002] VCAT 1395

(b) Applicant to pay respondent's costs incurred on and after 3 October 2002, amount reserved.

For the Respondents: Ms R French of Victorian Government Solicitor's Office

In each of these matters the Respondent or Respondents are applying to strike out applications made by Dr Towie on the basis that such applications are, pursuant to s.75 of the Victorian Civil and Administrative Tribunal Act 1998, are frivolous, vexatious, misconceived, lacking in substance, or otherwise an abuse of process. Whilst they are quite separate matters, they were heard in sequence, as the representation was the same in each. In relation to each complaint, Dr Towie represented himself and Ms French, of the Victorian Government Solicitor's Office, appeared on behalf of the Respondent or Respondents.

I say at the outset that I am aware of the many authorities relating to applications such as these, and in particular, of the principles summarised in Norman v Australian Red Cross Society (1998) 14 VAR 243. For a dismissal or strike out application to succeed, the proceeding must be obviously hopeless, obviously unsustainable in fact or in law, on no reasonable view justify relief, or be bound to fail, which includes a situation where a complaint can be said to disclose no reasonable cause of action or where a respondent can show a defence sufficient to warrant the summary termination of the proceeding. It is, as stated, a serious matter for the Tribunal, and the burden to be discharged is a heavy one.

In each of these matters I have borne those principles in mind.

1. The background by way of findings of fact is not particularly significant in this ruling. I have come to the conclusion that, as a matter of law, Dr Towie's complaint cannot be sustained. I have come to that conclusion on two bases, and they both relate to the fact that the complaint brought is against VCAT, rather than the factual substance of the complaint. The only matter of fact of significance is that Dr Towie has brought a complaint against VCAT in relation to treatment which he allegedly received during the conduct of a hearing.

2. When this matter was before me on 24 September 2002, I raised with the parties a problem which I perceived in relation to the proposed litigation, namely that VCAT could not be both a party to a complaint and the Tribunal deciding it. On that occasion, at first Dr Towie appeared to agree that a very real problem existed, but ultimately opted to adjourn the matter so that he could obtain advice from a barrister.

3. The matter then come on again for decision. I made orders in relation to this matter on 12 November last. Dr Towie has asked for written reasons in relation to my order that the matters be struck out. These are now provided.

4. In my opinion, the application by the Respondent must succeed, and succeed on two bases. They could be dealt with in either order, but it is probably more appropriate that the operation of s.77 be considered first.

5. Section 77(1) states -

"At any time, the Tribunal may make an order striking out all, or any part of a proceeding ........ if it considers that the subject-matter of the proceeding would be appropriate dealt with by a tribunal (other than the Tribunal), a court or any other person or body".

6. This is the difficulty which was raised when the matter was listed before me on 24 September 2002. It is a problem which has previously been dealt with by His Honour Judge Davey in Clayton v Victorian Civil and Administrative Tribunal (unreported, delivered 11 November 1998). In that matter, as in this one, VCAT was the Respondent in a matter listed in the Anti-Discrimination List. His Honour found that it would be a fundamental breach of the rules of natural justice for VCAT to hear and adjudicate upon a matter in which it was a party. He also found that there was no doctrine of necessity that would enable it to do so. In Etheridge v Alamanis (unreported delivered 21 January 1999), Deputy President McKenzie also expressed doubts as to whether VCAT could hear such an action.

7. I adopted what has previously been said by His Honour Judge Davey in Clayton and for the same reasons. In addition, the principal of comity between co-ordinate divisions of the same court would, in essence, require me to follow Judge Davey's decision unless I was convinced it was wrong. I am not so convinced. On the contrary, I am of the view that Judge Davey's judgement correctly states the law.

8. A Tribunal trying to adjudicate upon a matter in which it is also a party and in which it has a direct interest is a proposition which clearly offends the rules of natural justice. Section 98(1)(a) of the Act makes it clear that the Tribunal is bound by the rules of natural justice. This Tribunal adjudicating upon a matter in which it is a party would not only breach the rules of natural justice, but would certainly not convey the impression of justice being seen to be done.

9. Dr Towie indicated that he had confidence in my ability to hear the matter in a fair and impartial way. Whilst that is gratifying, I do not believe that this is a situation where the obvious difficulty can be waived. What would appear to be a gross breach of the rules of natural justice cannot be set to one side. I note that in Clayton there was no overt objection to the matter proceeding in front of Judge Davey. Nevertheless, he was of the view that he could not hear the case. I am of similar view.

10. Judge Davey also stated that he was not enabled to hear the case by reason of the operation of any doctrine of necessity. Again, I am of a similar view.

11. Accordingly, I am of the opinion that, pursuant to s.77, the matter should be struck out and dealt with by a more appropriate forum.

12. I might say that there is a second reason, why, in my opinion, this matter should be struck out. I appreciate that I have already determined that the matter should be dealt with by a more appropriate forum, but it does seem to me that the proceeding is unsustainable in fact and in law in any event. As the parties argued this particular point before in addition to matters involving s.77, I shall express an opinion in relation to it. In other words, if I am wrong in relation to my ruling concerning s.77, it seems to me that the proceeding is doomed to fail in any event.

13. The reason that I say this is as follows. The Victorian Civil and Administrative Tribunal is not a body that can sue or be sued. It is a creature of statute, not incorporated, and constituted by its members. It is a group of individuals who are not collectively responsible for each other. Further, members of the Tribunal have, in the performance of their duties as members, the same protection and immunity as a Judge of the Supreme Court has in the performance of his or her duties as a Judge - see s.143 of the Act. The naming of VCAT as a party is simply incorrect and an action against it is unsustainable in law. I might say that, in expressing that opinion, I adopt the reasoning of Deputy President McKenzie in the cases of Rabling v Supreme Court of Victoria (unreported 18 May 1999) and Visnjovski v State of Victoria (unreported, 7 August, 2000).

14. When this last mention matter was raised in argument, Dr Towie submitted that he should be able to substitute the Department of Justice for VCAT as the Respondent to the complaint. Were this the appropriate forum, my opinion is that I would certainly not be prepared to substitute a new party in a situation where proceedings have been on foot for eight months, there has been a number of hearing dates and where submissions have been advanced and arguments all but concluded. Even if such attempt at substitution were by consent, which it certainly is not, I would have considerable reservations as to whether a new party should suddenly be substituted at this point in time.

15. In any event, Application No. A148/2002 - Towie v Victorian Civil and Administrative Tribunal - is struck out.

Towie v State of Victoria (Department of Justice,

Broadmeadows Magistrates' Court) and Carolyn Patterson

1. In this matter, no issue in relating to s.77 of the Act arises.

2. In my opinion the application to strike out this proceeding pursuant to s.75 of the Act must also succeed, as the proceeding is quite unsustainable in fact and in law. Dr Towie's complaint against Carolyn Patterson relates to events at Broadmeadows Magistrates Court on 9 May 2001. In his complaint, he alleges that he was discriminated against by her on that day, that she was the "duty clerk" at the court, and that she acted in a discriminatory way in dealing with him in relation to litigation in which he was involved and which was listed on that day. His complaint clearly relates to matters that could be described as part of and related to the business of the court on that day.

3. Ms Patterson has sworn an affidavit that she was, on the day in question, the Deputy Registrar of the court and working in that capacity. The duties which she describes as performing in relation to Dr Towie and his litigation are clearly court-related duties. I might say that there was no challenge by Dr Towie to the proposition that, on the day in question, Ms Patterson was the Deputy Registrar. Further, it is clear from Dr Towie's complaint and her affidavit that, at the relevant time, she was performing duties related to the position which she occupied, whether those duties be performed in the manner described by Dr Towie, or in the manner described by her.

4. The wording of the Magistrates Court Act 1989 is clear. Section 24 of that Act affords to a Principal Registrar, a Registrar and a Deputy Registrar, in the performance of their duties as such, the same protection and immunity as a magistrate has in the performance of his or her duties as a magistrate. Section 14 of the Act provides that a magistrate has, in the performance of his or her duties as a magistrate, the same protection and immunity as a Judge of the Supreme Court has in the performance of his or duties as a Judge. Thus, Ms Patterson, being a Deputy Registrar has, in the performance of her duties as such, the same protection and immunity as would be afforded to a Judge of the Supreme Court in the performance of his or her duties. That then is the end of the matter insofar as it relates to her.

5. I agree with the submission of Ms French, that if the proceeding against Ms Patterson must fail on the grounds of immunity, so must the proceeding insofar as it relates to those "further up the tree", namely the Department of Justice, the State of Victoria and the Broadmeadows Magistrates Court. It is all the one complaint concerning the one course of conduct. If Ms Patterson has the protection and immunity described, the action against the other Respondent or Respondents must also of necessity be unsustainable, and be doomed to failure.

6. I should add that, if it were intended that Broadmeadows Magistrates Court be named as a party, it is also not a body capable of being sued for the reasons which I have set out in the ruling in Towie v Victorian Civil and Administrative Tribunal.

7. Accordingly, proceeding No. A-146/2002 - Towie v State of Victoria (Department of Justice, Broadmeadows Magistrates Court), and Carolyn Patterson is struck out.

Costs were not sought in the matter of Towie v Victorian Civil and Administrative Tribunal, and accordingly I make no order for costs in that matter.

A further matter of Towie v State of Victoria (Department of Justice, Heidelberg Magistrates Court), and Angela Carney, being matter No. A-147/2002, was withdrawn. Dr Towie had foreshadowed his intention of withdrawing this matter when previously before me on 24 September 2002. In fact, on that occasion, I ordered that the matter be marked withdrawn, with the question of costs reserved for further argument. Whilst costs were pursued by the Respondents, it should be said that they were not pursued with any great vigour. In any event, the withdrawal of that matter was done in a timely fashion, and I do not think it appropriate to make any order as to costs.

I do make a costs order in relation to the matter of Towie v State of Victoria (Department of Justice, Broadmeadows Magistrates Court) and Carolyn Patterson. In my opinion, an order pursuant to s.109 of the Act is appropriate. I consider that such costs order should relate to costs incurred by the Respondents from 3 October 2002. By letter dated 24 September 2002, and sent to Dr Towie by express post, the Victorian Government Solicitors informed Dr Towie of the legal argument it intended to conduct concerning the immunity of Ms Patterson in her position as a Deputy Registrar. That letter informed Dr Towie, quite clearly, that his complaint was misconceived. It referred to the relevant sections of the Magistrates Court Act, and summarised their contents. It also referred to cases bearing on the issue.

Assuming that Dr Towie received that letter on 26 September 2002, which is not denied, it seems to me reasonable to allow him one week to absorb its contents and to seek advice if he was so inclined. Dr Towie is an intelligent man. He has chosen to represent himself, although he made it quite clear on 24 September 2002 that he was obtaining the advice of a barrister. Whether or not he was in fact obtaining such advice, I do not see why, in circumstances such as this, a person such as Dr Towie should be treated by the Tribunal in a manner different to that of a represented person. In the circumstances prevailing, I do not see why Dr Towie should be afforded preferential treatment.

He was informed by 26 September 2002 in the clearest terms that this proceeding was misconceived. He chose to continue with it. It was unnecessarily prolonged by him and could perhaps be considered as having been vexatiously conducted by him. I consider it quite fair to order that he pay the reasonable costs of the Respondents from 3 October 2002.

I reserve the amount of such costs. I would be hopeful that the parties might be able to reach some agreement as to the quantum of them. If they cannot, the parties may return for further argument.