Appellant v Respondent

DISCRIMINATION - Whether licence renewal questions about mental health were lawful- Questions necessary to comply with or authorised by Act - Equal Opportunity Act 2010 ss 8, 75.

HUMAN RIGHTS - Public Authority - Right to fair hearing - Overlap of issues in civil and criminal proceedings - Appropriate procedure - Right to equality before the law - Charter of Human Rights and Responsibilities Act 2006 - ss 4(1)(j), 6(2)(h), 8, 24, 38.

1 In February 2018, WUT[1] applied to Victoria Police under the Private Security Act 2004 ('the Act') for the renewal of his Private Security Individual Operator Licence for the activity of investigator ('licence'). WUT first obtained a licence in 2009 but it expired in April 2012 and he did not seek its renewal. In October 2014, he successfully sought a licence and in April 2018 sought its renewal. The Chief Commissioner's delegate refused the application. A Deputy President of the Victorian Civil and Administrative Tribunal ('Tribunal') affirmed that decision. WUT now seeks leave to appeal to this Court against the Tribunal's orders.

2 By way of background, in December 2015, Senior Sergeant D Pinner ('Pinner') was allocated a file about a complaint made by WUT against Leading Senior Constable S Hafner ('Hafner'), a member of Victoria Police's Licensing and Regulation Division ('LRD') following a hearing at the LRD office into whether WUT had been offering investigative services using a business name not approved by the Chief Commissioner. After Pinner spoke to WUT that complaint was resolved. However, the inquiry into his use of business names continued. There was no suggestion that WUT had ever been the subject of any complaint by a client.

3 In January 2016, WUT completed a Victorian Private Security Business Personal Information Form and provided it to Victoria Police in which he declared that he had not been treated for psychiatric or emotional problems.[2]

4 By letter of 29 January 2016, Acting Senior Sergeant L Tas ('Tas') advised WUT by letter that Victoria Police had commenced a disciplinary inquiry into his holding a licence in circumstances where he may have carried on the business of offering investigative services using a business name not approved by the Chief Commissioner and to his behaviour towards the regulator, being Victoria Police.

5 The letter addressed WUT's behaviour during December 2015 focusing on his contact with LRD members and stated in part:

Behaviour towards regulator

I have also considered relevant to my decision to commence a Disciplinary Inquiry, your behaviour displayed during recent contact with members of the Licensing and Regulation Division.

I understand that the circumstances of your most recent contact with Victoria Police relate to your attempts to report suspected incidences of offending. I have had cause to review your email correspondence sent to ... Baullo on Monday, 21 December 2015 (on or around 13:38H) and Monday, 21 December 2015 (on or around 14:28H). While at this stage I do not wish to assess the substance of your allegations against ... Hafner, I am satisfied you have made unfounded and unreasonable threats to initiate a private prosecution and serious and unfounded allegations of corrupt conduct arising out of a brief telephone exchange with ... Hafner.

I consider that your comments made during the telephone call amount to threatening behaviour and that coupled with your comments in the emails, indicates behaviour which is increasingly argumentative and unreasonably aggressive.

On 17th December 2015, during an interview with ... Baullo and ... Hafner at the Victoria Police Centre, you were questioned as to why you failed to follow multiple lawful directions from ... McGuire about how to report a cybercrime using Australian Cybercrime Online Network (ACORN). During this interview your behaviour, tone and volume have raised concerns regarding your mental health.

I am satisfied that those circumstances are suggestive of a pattern of behaviour for which it is sufficient for me to enquire into your physical and mental health as I believe that it may impact on your suitability to continue as a licenced professional.[3]

6 WUT replied in lengthy letters of 10 and 18 February 2016 describing the inquiry as unethical and likely to lead to maladministration.

7 In about March 2016, Pinner became the sole point of contact at LRD for the inquiry into WUT's fitness to hold a licence. Pinner became aware of a 2015 complaint by Detective Senior Constable L McGuire ('McGuire'), who was a Victorian Police officer seconded to the Australian Cybercrime Online Reporting Network ('ACORN'), that WUT was unprofessional and was sending him voluminous emails that were threatening in tone.[4] Pinner also became aware of a complaint from WUT's former accountant and his wife who had obtained a personal safety intervention order against him McGuire described a 4 December 2015 email from WUT to McGuire, copied to a television station and the relevant Victorian Government minister which said:

What is the intent of ACORN?

Do you care that I have the local BSB, Account Number, IP Address, VOIP provider, leading back to the criminal? If so, I ask you to send an investigator to me. If not, this would be consistent with a lack of care from ACORN and government intent - as everybody has reported that you do 'nothing'. It cost millions of dollars to tax payers to set up this campaign. How is it that you are rejecting complaints from existing customers with legitimate claims when the police don't even know how to charge these crimes under the Crimes Act 1958 amongst state and other Anti-terrorism laws?

I know for a fact the police have the power to immediately arrest this person and stop further victims. This is now the 3rd rejected ACORN case. What is their intent Hon. Minister Noonan?

I ask the minister to intervene.[5]

8 The Deputy President referred to counsel putting to WUT in cross-examination that that email and others he sent to McGuire were threatening and/or irrational. WUT responded that the email was simply him providing information to ACORN, which had failed in its mission concerning cybercrime. He denied that this and related emails were abusive and/or threatening. Counsel then turned to a 19 December 2015 (14:25) email from WUT to McGuire suggesting its nature was threatening, intimidating and abusive. The email stated:

I am obliged to tell you that you are under an investigation for the criminal offence of fraud. I have a duty to report all criminal offences. You purportedly made a statement saying "I have tried calling you regarding this report". I can forensically prove that no such call was made. I am not stating or purporting to state that you I am using [sic] my right to place you under arrest or take control of you upon waiting police attendance, but I caution you that I am personally [WUT] investigating your conduct and history with the Victoria Police force. Anything you write, say, or do, whether it be a third party or otherwise may be used against you.

Please provide for me forensic evidence that has been verified that shows you called my telephone number [number provided]. In absence of this you have allegedly perverted the course of justice and I will report the matter to the Chief Commissioner of Police and the Ombudsman and provide forensic evidence summoned from my phone provider proving otherwise, seeking a conviction for the crime of fraud under the Crimes Act.

Please advise your badge number, and the alleged date and time and forensic evidence proving you tried to call me by no later than Tuesday 22nd December 2015.[6]

9 The Deputy President recorded that WUT disagreed with this characterisation of this email and similar emails, and described Victoria Police as corrupt. He stated that he was exercising his freedom of expression to speak for Australia. WUT described ACORN as misleading with its computers gathering spider webs. He said that he had solved 20 or 30 cases where ACORN had failed to do so.

10 Counsel put part of an email to McGuire (21 December 2015 (11:56)) and asked whether WUT considered it threatening and he replied:

As I am 'currently' a Private Investigator I am obliged to report crimes. So [officer], you are under investigation and expect a result. I have had sergeant's disciplined for not doing their job by the Chief Commissioner of Police. I demand you to look at the facts and an apology.[7]

The 11:56 email is the last of a rapid sequence of four emails over 43 minutes from WUT to McGuire on 21 December, at 11:13 ("You are under investigation and my report will go to the Commissioner of Police. I officially request the above information in relation to a crime ... as well as police ethics"), at 11:26 ("Here we go - the exact one you're looking at - yet another ACORN stuff up BEFORE IT GOT TO ME."), 11:29 (forwarding an email to another person with the text, "The best way is the incompetent pricks that had the nerve to question why I didn't report their crime and fix their crime at the regulator for Private Investigators.") ending with the 11:56 email.[8]

12 Pinner's inquiry was still incomplete when in April 2018, WUT applied to renew his then expired licence, and as the Deputy President, stated that application led to the decision under review.[9] The renewal application form required him to answer a question whether in the last five years he had been treated for psychiatric or psychological problems. He crossed the 'No' box by way of answering the questions, as he had when completing previous licence applications.[10]

13 In a letter of 26 April 2018, Pinner as delegate advised WUT that he proposed to refuse his licence renewal application because he was not satisfied that it was in the public interest for him to hold a licence, nor that he would meet the statutory probity requirements of being a fit and proper person. Pinner raised the following concerns:

1. In the context that WUT had previously declared that he had not the last five years been treated further psychiatric or psychological problems,
   1. the 31 October 2011 drug screen with the clinical note, "on prescribed medications - Seroquel, Alprazolam, which Pinner regarded as prescribed for mental health conditions;
   2. that in in December 2012, WUT was found guilty without conviction for refusing to undergo a roadside drug assessment, fined $650 with his driver's licence cancelled for two years;
   3. the November 2014 report from the Peninsula Drug and Alcohol Program where WUT had apparently disclosed that he was currently prescribed Valium daily as well as antidepressants, which he was taking as prescribed.

1. WUT's conduct concerning the accountant and wife and their obtaining PSIOs.

Pinner invited WUT to make a written submission in reply.[11]

14 Pinner had examined WUT's licence application forms and found that he had not declared any treatment for psychiatric or emotional problems or any other medical conditions. He also examined documents provided by WUT including a report concerning a 2011 drug screen and a report from the Peninsula Drug and Alcohol program of 2014 containing WUT's disclosure that he was prescribed 10 Valium daily as well as anti-depressants which he was taking as prescribed. He also reviewed a submission by WUT declaring that he had previously taken medications that Pinner understood were usually prescribed for psychiatric or psychological conditions. Pinner formed the opinion that WUT demonstrated a lack of trustworthiness and integrity sufficient to satisfy him that he was a fit and proper person to hold a licence and that he may have a mental health condition that may impact on his ability to hold a licence. He considered that WUT had not alleviated his concerns when he failed to provide any medical evidence.

15 Well before Pinner's letter, WUT had been cleared, or at least no case had been established, that he had made any illegal use of business names, which was the issue that had initiated Victoria Police's inquiry.

16 WUT sent a seven page letter of reply of 30 April 2018 to Pinner. The Deputy President said that its character was illustrated by its opening paragraph and by a series of quotes that he set out:

I first must say that I am disappointed to receive your letter and can see right through its deceptive intent. To ignore someone for four years, without providing any evidence or excuse for their complaints of misconduct, and to further ignore the written request to withdraw a business application (due to the bias, vengeance, and unacceptable delay and inability of the LRD to exercise a statutory function) shows utmost bad faith. To address it by way of a purported breach of the Act however is low, and unconscionable.[12]

17 The passages and words in WUT's letter that the Deputy President quoted were:

"excuse (now) for a fanciful act of corruption"; "insulting and discrimination"; "Pursue a case in the Supreme Court for Misfeasance in public office"; "find the LRD's conduct unreasonable"; "deceptive"; "unconscionable argument"; "absolute victimisation"; "I will aggressively fight such claims, and counter claim them"; "I take offence to your accusation"; "I take serious insult to it, and find that it is a breach to my Charter of Human Rights and Responsibilities Act 2006 (Vic) and the Equal Opportunity Act 2010 (Vic)"; "it is now a fact that ACORN has failed the Australian public"; "counterclaim for misfeasance if necessary"; "you make mistakes like this and if used to detriment a person's income you can be held liable"; "yourself have conducted a bias and non-impartial; planned and malicious attack on my license which can easily be demonstrated in a detailed timeline; and further; your statements of discrimination with no merit"; "or I will sue"; "put you personally on notice for the tort of misfeasance in public office"; "vexatiously instantiated"; "no evidence of any attempt to conduct an investigation giving an opportunity to respond"; "it is my position that these this action is planned; biased; the result in what the industry already knows is poor regulation and would enliven a civil counter-claim for statutory misfeasance"; "have no hesitation in taking this further with the Courts; Victorian Inspectorate, the Industry and the Media".[13]

18 The Deputy President described WUT's letter of 30 April 2018 as not simply restating his belief that he was fit to hold a licence, but also declaring that the challenge to his fitness was only possible due to acts of corruption, discrimination and/or criminal activity.

19 The Deputy President recorded that WUT gave evidence that he regarded his reply as reasonable, asserting his rights, in the context that all the matters raised by Pinner in April 2018 had been dealt with in 2014. WUT described Pinner's letter as discriminatory and his response as a description of what he said would happen, but in no way threatening or aggressive. At one point, he described the security industry as regarding Victoria Police as untrustworthy, but he denied that he had no regard for Victoria Police or that he held it in utter contempt.

20 The Deputy President recorded that during cross-examination, WUT spoke of not being able to wait to get Pinner into the Federal Court and suing counsel for Victoria Police for discrimination, saying that that was not a threat but a promise.[14] Later during cross-examination, WUT said that while he did not regard Pinner as corrupt, or as a bad person, he did regard him as acting incompetently, improperly and inappropriately.[15]

21 In June and July 2018, Victoria Police and WUT exchanged correspondence in which Victoria Police invited him to provide a further medical report concerning his mental health history, current medication and a statement by a medical practitioner as to whether he was a fit and proper person to hold a licence and to work in the private security industry.[16] In a letter from Victoria Police to WUT dated 29 June 2018 concerns were raised whether he suffered from depression, saying that previous medical reports lacked sufficient detail and inviting a comprehensive medical report, but WUT did not respond. He contended that Victoria Police had no power to require such a report and that he could call on Dr Gurtman, a forensic psychologist, who later in November 2018 administered psychological tests to him.

22 On 10 July 2018 WUT sent an email to Pinner headed 'Re: intent to sue personally for statutory malfeasance and bad faith misuse of police powers'.[17] WUT said that he intended to sue Pinner personally in the Supreme Court of Victoria for statutory misfeasance in public office and bad faith misuse of police powers. He said that Pinner had ignored his correspondence for almost four years and waited till the exact moment his licence was up for renewal to attempt this conduct.[18]

23 On 20 July 2018 WUT sent a further email to Pinner, in effect declining to provide a comprehensive medical report and stating that Pinner's reasons for requesting it were 'baseless and outside the law'. He denied withholding medical information and referred to the report of Dr L, his general practitioner, and contended that the medical results showed absolutely nothing in his system and 'his testimony that (at that time when I was going through a rough time) I was on antidepressants and some Valium as prescribed, not unusual and not excessive'.

24 In an email to Pinner of 31 July 2018, WUT stated:

Under what Act or Regulation can you raise a suspicion of 'mental illness' and subject them to medical testing in breach of the Charter of Human Rights and Responsibilities Act 2006?

Good luck to you in your career. I have read the case law. You have not conducted any inquiry into my 'mental illness', and you have not followed the Act. You have further engaged in corrupt conduct and are unfit to hold the position you hold. I will fight you all the way to the Supreme Court for Police Misconduct Malicious Prosecution and Statutory Misfeasance.

I am more fit and proper than you, hold more credentials and am more senior in my industry than you will ever be, and would love the opportunity to have the industry to have the industry see you taken down in court.

Bring it on. It's about time for your retirement Sir, especially when you, yourself are delusional and having 'visions' of illness and diagnosis that are not there ... You have access to firearms and I am concerned about your mental stability.[19]

25 On 3 August 2018, Pinner advised WUT that he had refused to renew his licence because in particular he had concerns that he had failed to 'declare treatment for relevant psychiatric or psychological conditions', which might impact on his suitability to hold a licence. On 4 September 2018, he elaborated his reasons stating that he was not satisfied under s 25(1)(a) of the Act that it was in the interest of the public for WUT to hold a licence nor satisfied under s 25(2)(a), WUT was a fit and proper person. Pinner letter stated in part:

My decision was based on my belief that you have failed to declare treatment for relevant psychiatric or psychological conditions, and such conditions may impact on your suitability to hold a private security licence ...

... I formed the beliefs that you:

1. have not advised the Chief Commissioner of relevant psychiatric or psychological conditions;
2. may have a mental health condition that may impact on your suitability to hold a private security licence; and

1. that you have not provided any medical evidence that would satisfy my concerns...

I am satisfied that the conduct referred to [in the letter] demonstrates a lack of trustworthiness and integrity sufficient to be satisfied that you are not a fit and proper person to hold a private security licence nor is it in the public interest that you do so.[20]

26 In the letter, Pinner referred to the drug screen of 2011, the Peninsula Drug and Alcohol report of 2014, WUT's previous applications and renewal applications and the Personal Information Form where WUT had failed to declare treatment for relevant psychiatric or psychological conditions. He also referred to email correspondence with Detective Senior Constable McGuire which was voluminous, threatening and irrational, the complaint from the former accountant and his wife and intervention orders made naming them as the protected persons.

27 WUT said that Pinner had made his decision almost a month before the deadline for his submissions after he had given notice to Pinner that he was still obtaining evidence a psychologist's assessment.[21] WUT's appeal grounds include that the Tribunal did not examine the original decision and the defects in its making.

28 Section 25 of the Act is the main statutory provision and it states:

25 Circumstances in which the Chief Commissioner must refuse to grant a private security individual operator licence

(1) The Chief Commissioner must not grant a private security individual operator licence if -

(a) he or she is satisfied that the granting of the licence is not in the public interest; or

(b) he or she is not satisfied that the applicant meets the probity requirements set out in subsection (2); or

(c) he or she is not satisfied that the applicant meets the competency requirement set out in subsection (3).

(2) For the purposes of subsection (1)(b) the probity requirements are that the person -

(a) is fit and proper; and

(b) is aged 18 years or more; and

(c) has not contravened or failed to comply with any provision of this Act, the regulations or any corresponding previous enactment, to the extent that warrants the refusal of the licence; and

(d) is not a prohibited person; and

(e) is not a person in relation to whom -

(i) not more than 10 years have expired since that person was convicted of any offence that in the opinion of the Chief Commissioner would render the person unsuitable to hold a private security licence; or

(ii) not more than 5 years have expired since that person has been found guilty (without a conviction being recorded) of any offence that in the opinion of the Chief Commissioner would render the person unsuitable to hold a private security licence; and

(i) any offence that in the opinion of the Chief Commissioner would render the person unsuitable to hold a private security licence; or

(ii) a disqualifying offence.

(3) For the purposes of subsection (1)(c), the competency requirement is that the person has successfully completed any approved training requirements or has the experience or training approved by the Chief Commissioner as relevant to each activity or any aspect of each such activity that the person is authorised to carry on under the licence.

29 The purposes of the Act are contained in s 1 and include:

The purposes of this Act are -

(a) to provide for the licensing and registration of certain participants in the private security industry; and

(b) to otherwise regulate the private security industry for the purposes of ensuring public safety and peace; and

...

30 Section 37 requires the Chief Commissioner not to renew a licence unless satisfied that the applicant satisfies any relevant criteria set out in s 25 of the Act.

31 In August 2018, WUT applied to the Tribunal for review of the Chief Commissioner's decision made by his delegate. The Tribunal heard his application for three days in March 2019. WUT gave evidence as did Pinner, who was the only witness called by Victoria Police. WUT called witnesses to support his competence and character. It was clear from their evidence that he had assisted a people who had been victims of cybercrime and that a number of people held him in high regard.

32 On 22 July 2019, the Deputy President affirmed the Commissioner's decision to refuse to renew WUT's licence ('Tribunal Decision').

33 The Deputy President found in favour of WUT on the competency requirements required by s 25(1)(a) stating:

WUT is an expert in cyber security, demonstrated by the references and testimonials bearing witness to the high quality work he has provided to numerous clients. Whilst some doubt has been raised concerning some of his claimed qualifications, particularly with respect to University, that does not detract from the positive evidence in this respect**.** Therefore, concerning s 25(1)(c) and 25(3) of the Act I am satisfied WUT meets the competency requirements.[22]

34 But, the Deputy President was not satisfied that WUT met the probity requirements of s 25(2)(a) and was not satisfied that he was a fit and proper person to hold a licence. He wrote:

The multiple strong testimonies as to the services WUT has provided to the authors of those testimonies speaks well to his character and supports WUT's submissions that he meets the probity requirement in the Act.

However, being fit and proper is not only a matter of character and conduct when not in conflict with a given person. Crucially, judgement must be formed about the character and conduct of the person who finds him or herself in conflict with another. This is particularly important concerning probity with respect to a person seeking a PSIOL, where it can be assumed conflict may commonly occur.

In my view, the evidence in this case overwhelmingly demonstrates WUT's character to be lacking and conduct to be unacceptable.[23]

35 The Deputy President next dealt with the public interest requirement contained in s 25(1)(a) and stated that he was 'satisfied that the granting of the licence WUT seeks is not in the public interest'.[24] He explained:

I have considered whether the strong evidence in support WUT's valuable work in cyber security justifies concluding that in the context of regarding WUT as not meeting the probity criterion, this separate criterion of public interest was satisfied.

I am not so satisfied. The s 25 criteria are interrelated, particularly the fit and proper criterion and the public interest criterion. It would be unusual that a person regarded as not fit and proper to hold a PSIOL would be regarded as a person where it would be in the public interest that the licence be granted.

It is not in the public interest that a person capable of the unacceptable conduct described above be entrusted with a PSIOL.

It is also not in the public interest to, by licensing WUT, in effect give permission for individuals to engage in the unacceptable conduct described above.

Such permission would undermine the ability of regulators of occupations, and others discharging governmental functions, to effectively deal with unacceptable conduct towards them.[25]

36 In summary, while the Deputy President was satisfied that WUT met the competency requirements, he was not satisfied that he met the probity requirements of s 25(1)(b) because he was not satisfied that he was a fit and proper person to hold a licence and was not satisfied that the granting of the licence was in the public interest as required by s 25(1)(a) because of his unacceptable conduct.[26] While he accepted that WUT's skills would be valuable to the community, the issue of his lack of probity outweighed that benefit.[27]

37 The Deputy President's reasons for not being satisfied that WUT was a fit and proper person to hold a licence were in summary as follows. He considered that WUT's conduct in situations of conflict was unacceptable. He described the evidence concerning a conflict between WUT and his former accountant and his wife as 'chilling'.[28] He also considered evidence of WUT's correspondence to members of Victoria Police and a member of the Tribunal, as weighing against the grant of a licence. He found that WUT was not truthful about previous treatment for mental illness and that he had failed to obtain a 'fulsome medical report from another medical practitioner'.

38 The Deputy President gave six reasons for his conclusions and the first three concerned disclosure of mental health issues.[29]

39 First, the Deputy President did not regard WUT as truthful in his statements that he had not received psychiatric or psychological treatment and found that it was more likely than not that he had suffered a mental illness and been treated for it, for more than the very short duration he claimed.[30] He relied on the 2011 clinical notes, the 2014 Peninsula report, WUT's 2015 statutory declaration and the views taken of his mental capacity 'given the nature of some of his correspondence' and observations of the accountant and 'recounting by the accountant's wife of the telephone call from WUT's mother'.[31] He also said that WUT's continuing denials 'in the face of the variety of evidence' caused concern'.[32]

40 Secondly, the Deputy President referred to WUT's unacceptable ongoing refusal to cause Dr L, his general practitioner, or another medical practitioner, to provide a 'fulsome report' to clarify whether he had been treated for psychiatric or psychological problems.[33] He considered that Dr L's statement that was in evidence may have been made in the context that mental illness had been or was being appropriately treated. In addition, the report of the psychologist, Dr Gurtman, had no weight. It was not prepared for the proceeding and contained the 'surprising statement', 'given the evidence in this case' that WUT was an 'unassertive person who has difficulty standing up for himself'.

41 Thirdly, the Deputy President considered that the evidence demonstrated that WUT, when it suited him, had not been truthful as to past events, including his claims that Peninsula Health had corrected its 2014 report about him, when it had only placed a note on it, recording his assertion that it was inaccurate. Also his claim that no government department apart from Victoria Police had a problem with him was untrue because of the circumstances in which he ceased to be a Justice of the Peace.[34]

42 Fourth, the Deputy President considered that doubt was raised as to WUT's claimed qualification from Charles Sturt University and stated that:

[G]iven the letter from the University advising it had no record of him having obtained such qualifications. A copy of the University's letter was provided to WUT well before the hearing of this case. Beyond describing the challenge to his qualifications as ridiculous, I am not aware of any evidence where he seeks to confirm his qualifications.[35]

43 Fifthly, the Deputy President found that with respect to at least some people, not within government, with whom WUT found himself in conflict or of whom he was critical, he engaged in unacceptable conduct. These people included his former accountant and his wife. He also referred to WUT's action in sending an email to another Tribunal Member, who had heard a proceeding in which WUT was a party.[36]

44 Sixthly, he found that WUT had the propensity to act unacceptably and had so acted towards some people working within government with whom he found himself in conflict.[37] He concluded that it was not in the public interest by licensing WUT, to, in effect, give permission for individuals to engage in such unacceptable conduct. To do so would undermine the ability of regulators and others discharging governmental functions to deal effectively with unacceptable conduct towards them.

45 The first three findings listed above concerned whether WUT had been truthful in statements and disclosures about his mental health or treatment that he had received. Many of WUT's arguments in this Court concerned these issues and whether the Deputy President's findings were supported by evidence. He also raised the issue of whether the information that Victoria Police had sought in the licence renewal form about his mental health had been sought in breach of discrimination legislation.

46 The Deputy President described the relevance of the mental health issues as follows:

Relevance of mental health to this decision

While these reasons address evidence concerning whether or not WUT has received treatment for any mental health condition, Victoria Police does not submit, and this is not a case which suggests, that a person suffering a mental health condition may not obtain a private security individual operator licence (PSIOL).

The issue of mental health here is whether WUT's character is in question on the basis that he falsely declared a lack of treatment for mental health issues and, to a lesser extent, given concerns about WUT's mental health as evidenced in his conduct, or with reference to his conduct alone, it is not in the public interest for him to hold a PSIOL.[38]

47 The Deputy President described the issue about WUT's health as whether contrary to his 2009 licence application declaration, and/or statements in later applications, there was evidence that he had been treated for psychiatric or psychological problems.[39]

48 The Deputy President's findings about WUT's mental health were particularly based on the results of a drug screen, a drug drive assessment and the contents of his 2015 statutory declaration. I next set out the relevant passages in the Deputy President's reasons recorded under headings that I have added:

Drug screen 31 October 2011

In December 2012, WUT pled guilty before the Magistrates Court of Victoria to the charge of, in 2011, Refusing to Undergo A Roadside Drug Assessment. The Court found him guilty, without conviction, fined him $650 and cancelled his driver's licence for two years.

It appears that related to this incident, WUT's general medical practitioner, Dr L, referred him for a drug screen which was undertaken on 31 October 2011. While WUT tested negative for relevant drugs, the Report commented:

Clinical Notes: On prescribed medications - Seroquel, Alprazolam

Seroquel is a medication used to treat mental illnesses such as schizophrenia, bipolar disorder and sudden episodes of mania or depression associated with bipolar disorder. Alprazolam is a medication which belongs to a group of medicines called benzodiazepines. It is used for short-term relief of anxiety or for treatment of panic disorders.[40]

...

WUT says he told the truth in each of his applications. He described being prescribed Seroquel and Alprazolam as two options intended to address the side-effects of another medication, Duramine. He took this related to a surgical. He said that while he once filled a prescription for Seroquel, he heard it was a "really hard drug" in terms of its sedative effect and so he never took it. He described taking quarter tablets of Alprazolam for about a year.

Concerning this, he had also written that the medications were temporary, prescribed to address extreme extenuating personal circumstances of the time, which he had not had prescribed for him or taken since then.

Drug assessment November 2014

It appears that as part of the process of regaining his driver's licence, in November 2014 WUT undertook an assessment by the Peninsula Drug and Alcohol Program.

A 12 November 2014 First Drug Drive Assessment Summary from the Program said in part:

[WUT] reports that he is currently prescribed 10 Valium daily in which he is taking as prescribed. [WUT] states also prescribed antidepressants and is also taking these as prescribed.

This again raised the issue as to whether WUT had been truthful in his 2009 statement about treatment for psychiatric or psychological problems.

WUT's evidence is that the above statement was an error by the Report's author. He said he could not remember whether the Report (which appears favourable to him as it reports an absence of drug and alcohol use) was used when he appeared before the Magistrates' Court of Victoria.

WUT had stated in this proceeding that this incorrect statement was "corrected by an FOI request". In cross-examination, Counsel put to WUT that this statement was rubbish and inaccurate and that WUT will say anything that advantages him. WUT responded that only Victoria Police has a problem with him and Peninsula Health did the only thing it could concerning the Report, which was to, under the Freedom of Information Act 1982, put a note in the record of WUT's views.[41]

49 The Deputy President also referred to WUT's statutory declaration of 10 February 2015 in which he gave his version of the traffic incident in 2011 and its aftermath. WUT said that due to the experience of the traffic incident he was put on Valium to release my pain and suffering.

50 The Deputy President also referred to medical evidence about WUT; first of all to letters from his general practitioner, Dr L, in the following passage:

Concerning evidence of his psychiatric and psychological good health, WUT referred to a letter from Dr L dated 9 February 2015 which said:

This is to certify that [WUT] has worked as a computer forensic private investigator. I do not see any medical reason that he cannot work as an investigator using his lifetime knowledge of computer skills.

I am aware of [WUT's] medical history over 30 years. This is to Certify that [WUT] has worked as a computer forensic private investigator. I do not see any medical reason that he cannot work as an investigator using his extensive range of skills that he has developed over many years, in my professional opinion, he is a fit & proper person to hold a private security licence and suitable to work in the Private Security industry.

51 Dr Gurtman is a Consultant Clinical and Forensic Psychologist. He administered psychological tests to WUT on 21 November 2018 and then provided a report although he never met him. The report stated that WUT's scores suggested no indication of clinical psychopathology and that his 'self-concept appears to involve a generally stable and positive self-evaluation'.[42]

52 WUT said the above opinions had previously satisfied Victoria Police as to his mental health. He did not provide a further report from Dr L nor call him to give evidence. When asked why he had not obtained a further report, WUT replied it was 'none of your business'.

53 The Deputy President noted that in a letter to Victoria Police of 30 April 2018, WUT wrote:

The medications I disclosed were temporary and I am no longer on about 1/5th of the medication that I was back then for the treatment of depression which does not affect my job, and never did, and satisfied the case last time.

I am certainly not on any Seroquel or any other form of medication (which my doctor submitted an affidavit of) in which all medications that were advised are either now are non-existent or at a fraction of about 1/5th of what they used to be.

54 The Deputy President stated that from at least April 2018, WUT knew he had the option of causing a medical practitioner, perhaps Dr L, to give a comprehensive overview which would address concerns reasonably raised concerning his mental health, based on the evidence available to LRD as described above. He did not, but went on and continued in attack mode via correspondence, with his 30 April 2018 letter, which is referred to above, being a representative example.[43] Under s 23 of the Act, WUT was obliged to provide information requested.

55 On 4 February 2019, a solicitor for Victoria Police informed WUT that the Chief Commissioner required the attendance of Dr Gurtman at the hearing for the purpose of cross examination and, if he was not made available, reliance upon his report would be objected to.[44] Dr Gurtman did not appear, although he sent a letter of explanation that I later refer to.

56 The other significant finding made by the Deputy President concerned WUT's behaviour when in situations of conflict with other persons. He dealt with this in his fourth, fifth and sixth findings. The Deputy President found that with some people with whom WUT was in conflict or of whom he was critical, he engaged in unacceptable conduct. I will next refer to the Deputy President's discussion and findings about that evidence.

WUT's conflict with his former accountant and his wife

57 The Deputy President referred to the written statement of WUT's former accountant and his wife of their dealings with WUT; their need to obtain an interim Personal Safety Intervention Order ('PSIO') against him; WUT's travel on the same flight to Sydney as the accountant's wife; and, his leaving a bag or bags of coins totalling $3100 in payment of a Tribunal costs order outside the front door of the accountant's home.

The evidence concerning his conduct towards the accountant and wife is, as a whole, chilling. The Magistrates' Court saw it as sufficient to make an interim PSIO. WUT's statements that he consented to the order, for practical reasons without making admissions, does not detract from the evidence given. The fact that the accountant and wife were not called to give evidence in this case is understandable. While the weight of the evidence is therefore somewhat less than would have been, it remains significant. I reject WUT's evidence and submissions that they are vexatious litigants. This is contradicted by the accountant successfully defending the application against him by WUT in the VCAT Civil Claims List. WUT admits to depositing bags of coins at their front door, apparently only to retrieve them to appease the local police. He does not provide specific denials to much of what is alleged. While he describes being on the same return flight to Melbourne as coincidence, he provides no documentary evidence in support. That said, my view concerning his conduct towards the accountant and wife does not turn on the return flight issue.[45]

59 The Deputy President set out a number of other matters alleged in the statements of the accountant and his wife, but the passage from his reasons that I have set out in the last paragraph contains the matters that he appears to have taken into account. He did state that his view of WUT's conduct did not turn on the return flight issue. The Deputy President noted that WUT dismissed the wife's allegation saying it was coincidence that they were on the same flight from Sydney to Melbourne. He noted that in August 2016, the accountant and wife obtained interim PSIOs against WUT which expired on 30 April 2017.

60 The Deputy President recorded that WUT described the former accountant and his wife as vexatious saying their statements were untrue, at one point saying, 'their statements do not mean anything'. Concerning the PSIOs, WUT said he acted on legal advice to consent to the orders without making admissions, in circumstances where the hearing date for a contested PSIO application would occur after the expiration of an interim order. WUT described there being no findings against him or admissions by him. He described the inclusion of the PSIOs as evidence in this case as an attempt by Victoria Police to deceive the Tribunal.[46]

61 The Deputy President found that WUT's correspondence with Victoria Police (Tas, Pinner [243] and McGuire [241]) was at times within the bounds of strident criticism, but at other times went into abuse and harassment. He considered the four emails sent within an hour on 21 December 2015, which have been referred to above, as particularly striking.[47] He found that WUT's written attacks on Tas and Pinner went well beyond reasonable complaint and were unreasonable and harassing.

62 The Deputy President found that after Pinner made his decision to refuse to renew WUT's licence, he learnt that, in August 2018, WUT was arrested for the offence of using a Carriage Service to Offend after he allegedly made a threat, by email, to a Tribunal Member after she decided his case against a businessperson for unpaid fees for services that he provided. That businessperson is Witness C in this case. In fact he was called by WUT as a character witness and spoke well of him. The Deputy President described the evidence concerning the email to the Tribunal Member in the following passage:

The VCAT member's statement speaks of learning of the email, being aware of WUT's multiple complaints to VCAT about members' decisions, including about a decision of the member, with him alleging negligence and malice. These emails did not cause the member personal concern. The member understood that the email in question this was the first time WUT had made threats against a VCAT member. The member had no reason to doubt it was from WUT. The member's statement speaks of the email causing fear for personal safety and/or as to actions he might take online to cause harm. It is unnecessary to here quote the offensive text contained in the email.[48]

WUT's conduct towards Victoria Police's solicitor

63 The Deputy President referred to WUT's correspondence with Victoria Police's solicitor which he described as 'unwarranted and unreasonable'[49] and his conduct in the hearing towards Pinner and counsel for Victoria Police, which he described as 'accusatory and unreasonable'.[50] The Deputy President also stated:

In February 2019, Pinner received a copy of an email WUT had sent to a Victoria Police solicitor who has been party to the matter involving WUT's and LRD's refusal to renew his PSIOL.

An email from the solicitor dated 4 February 2019 (16:24) to WUT conveyed, in unremarkable terms, the solicitor's instructions concerning Dr Gurtman's evidence in this proceeding.[51]

64 The Deputy President quoted from a 6 February 2019 (12:02) email, in which WUT wrote to the solicitor:

You have provided false information in order to intimidate and influence a nonlawyer and abuse your position as a practising lawyer in the State of Victoria

...

Like your client, scare tactics, guessing games, and breaches of law are only going to take your 'career' to one place when you attack me stop I hereby state the following:

...

1. Your recent threats demonstrate you have and intend to act unethically and unlawfully and in breach of the Legal Profession Uniform Law, specifically your suitability to practice and fit and proper person status is question; ...

4. ... Constitutes professional misconduct, whether occurring in connection with the practice of law or otherwise, if it would, if established justify a finding that the practitioner is not a fit and proper person to engage in legal practice; ...

5. ... I intend to include you in my claim for unlawful discrimination against the dishonourable Mr Pinner when such time occurs.

For now the conduct of this case is with the Tribunal.[52]

65 The Deputy President said that WUT gave evidence that in his opinion this solicitor threatened him and purported to be a Tribunal Member. WUT justified some of his strongly worded emails as 'freedom of expression'.[53]

66 The Deputy President also considered that he could not assume that WUT's type of conduct which he had identified would not occur in the future if he were licenced. He also found that WUT had not demonstrated that he was of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further enquiry as a person to be entrusted with the sort of work which the licence entailed.[54]

67 WUT applied to this Court for leave to appeal the Tribunal's orders on questions of law pursuant to s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 ('VCAT Act').[55] His application for leave to appeal and the arguments in respect of the appeal if leave were granted were heard at the same time.

68 WUT raised 27 questions of law and related grounds of appeal. An appeal from the orders of the Tribunal cannot challenge the merits of its decision, but is confined to questions of law.

69 Many of the questions of law and grounds of appeal were challenges to the Tribunal's findings of fact. The respondent submitted that they were not questions of law, but questions of fact. The limit of the Court's role in considering such challenges was described by the High Court in Australian Broadcasting Tribunal v Bond ('Bond'), in these terms:

... in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law. ... [However], want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.[56]

70 An appeal to this Court from a tribunal's fact finding is 'narrowly available'[57] and will 'rarely succeed'.[58] The appeal must establish that:

there was either no evidence to support the impugned finding or that the finding was not reasonably open.[59]

71 I will next consider WUT's questions of law and the grounds of appeal associated with each question, to which I will refer as 'the grounds'. Most of the questions and the grounds contain some challenge to the Tribunal's findings of fact, so there is a question whether, at least in that respect, they give rise to questions of law. The first group raises issues of statutory construction.

The public interest and fit and proper person - statutory construction questions

72 In questions 1 and 2, WUT argued that the Tribunal erred in construing the 'public interest' requirement (s 25(1)(a)) when it decided that it would be against the public interest to grant him a licence given his valuable work and expertise in cyber security. He also contended that the Tribunal took into account irrelevant considerations in determining that he suffered from a psychiatric or psychological condition and in determining that he had been dishonest in answering that question on the renewal and application forms when there was no proof of such dishonesty.

73 Question 12 dealt with adequacy of the Tribunal's reasons, but the grounds challenge the construction of the term 'public interest', so I will consider them as grounds supporting questions 1 and 2. The grounds are:

[T]he VCAT erred in its construction of 'public interest' under s 25(1)(a) of the PS Act in focusing on the risk and detriment posed by the appellant to the public rather than on:

(a) the general public interest in a person such as the appellant holding a private security individual operator licence;

(b) the position of trust and authority held by persons with private security individual operator licences and the high standards of behaviour expected by the public; and

(c) the need for public confidence in the character and reputation of private security individual operators.

(d) disqualifying "convictions" the Respondent must consider and their weight under the PS Act;

(e) human rights (including the right to be treated equally before the law, and the right to take part in public life without discrimination);

(f) the case law surrounding the "fit and proper" test and weight from similar decisions under the same enactment;

(g) the fact that the statutory provision under the Act requires a direct relationship to the "provision of the services in question" - and the very application form specifies the intent of the Act requesting the answer to be backed by a medical practitioner, where it asks "In his/her professional opinion, your medical condition(s) do or do not prevent you from being a fit and proper person to hold a private security licence for the security activities being renewed", of which the appellant satisfied five years ago to the delegate's satisfaction with no change to evidence upon this latest renewal and re-satisfied this question.

(h) the fact that the appellant sought to renew his licence with the Tribunal finding and the Respondent accepting that the appellant services were in absolute good standing with the public for almost ten years without one valid complaint under the Act?[60]

74 Question 3 asked: did the Tribunal err in law in its construction of a statutory provision when considering whether WUT was a 'fit and proper person' pursuant to s 25(2)(a) of the Act? The grounds are that the Tribunal erred in its construction of that term in failing to consider all of the evidence tendered by WUT including Exhibits A to O and the evidence of his character. I will deal with Exhibits A to O separately.

75 Question 23 asked: did the Tribunal err in not consistently applying the originating enactment definition of a fit and proper person, case law under the same Act, and the breadth of prescribed disqualifying offences in 'guessing' the appellant is not a fit and proper person to hold a licence when it has been determined by the Tribunal and on appeal that a convicted paedophile is?[61]

Deputy President's reasons on the statutory construction issues

76 The Deputy President said that the 's 25 criteria are interrelated, particularly the fit and proper criterion and the public interest criterion'.[62] He quoted the High Court's decision in Bond first from the judgment of Mason CJ as follows:

... the statutory concept of 'fit and proper person to hold the licence', which is undefined, takes account of qualities and characteristics of the licensee apart from the matters mentioned in [the Act] ... the concept should not be narrowly construed or confined. It must extend to any aspect of fitness and propriety that is relevant to the public interest ...[63]

77 He also referred to the statement of Toohey and Gaudron JJ that:

The expression 'fit and proper person', standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of 'fit and proper' cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.[64]

78 So far as the statutory term the 'public interest' is concerned, the High Court has said:

The term 'in the public interest' is of broad import. When used in a statute, the term classically imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statute in question.[65]

79 WUT submitted there was strong evidence that he had conducted himself appropriately in conflict situations and that the Deputy President was in error in concluding otherwise. He is a nationally accredited mediator,[66] a conflict resolution practitioner, a family dispute resolution practitioner[67] and a certified fraud examiner.[68] Therefore, he could deal with conflict. Although, the Deputy President took into consideration these qualifications, he gave them little to no weight.[69]

80 He said that the Deputy President did not look into things that he should have looked into, or advise him of the weight that might be given to evidence. He criticised the Deputy President for accepting unchallenged declarations from people, and this appeared particularly to be a reference to the former accountant and his wife.[70] He emphasised that a client has never complained about him.[71] He has never been diagnosed with any mental or psychological illness.[72]

81 In my opinion, there was no error in the Deputy President's construction of the terms 'public interest' and 'fit and proper person'. The considerations relevant to those two terms overlapped. He considered the breadth of the terms, but also noted that 'the personal characteristics called for in a person undertaking an occupation which requires registration' may be relevant.[73]

82 An assessment of whether a licence applicant is a 'fit and proper person' involves a wide range of considerations that focus on the requirements of proper behaviour of a person acting as a licensed investigator.[74]

83 WUT referred to examples when similar licences had been granted to persons with convictions for grave offences.[75] He argued that to refuse to renew his licence because he had not disclosed a mental illness, even if he suffered from one, or because of his problems in conflict situations, would be excessive. He has only ever pleaded guilty to, and was found guilty without conviction of, a charge of refusing to undergo a roadside drug assessment and at worst he accidentally failed to tick the correct box on his licence application form.[76]

84 But each case turns on its facts and, on the Deputy President's findings, WUT has a propensity to be untruthful when it suits him,[77] and to act unacceptably towards people with whom he is in conflict.[78] WUT intends to use the licence to work as an investigator, which may involve seeking information as to the personal character or actions of persons or businesses or seeking missing persons.[79] Such work is likely to lead him on occasion into situations of conflict.

85 As previously mentioned, mental health issues said to concern WUT played a significant part in the Tribunal hearing and the Deputy President made clear that these issues went to WUT's probity.[80] WUT's case was that he had never been diagnosed with a mental illness and that the Deputy President wrongly concluded that he had actively misled the Chief Commissioner when he did not disclose a mental illness in his licence renewal form.[81] The Deputy President considered that WUT's non-disclosure of a mental illness weighed against him meeting the probity requirement of the Act.[82] He found that WUT's 'probably false' statements on this issue in 2009, 2014, 2016 and/or 2018 would not of themselves justify refusing him a licence, but his 'continuing denials, in the face of the variety of evidence' caused him concern.[83] As previously mentioned, the Deputy President relied on the details of the 2011 drug screen report; the 2014 report; WUT's 2015 statutory declaration; views taken, not by medical practitioners, concerning his mental capacity given the nature of some of his correspondence; and observations of the accountant and the statement by the accountant's wife about the telephone call from WUT's mother. He did not accept WUT's explanation that he had taken medication for short-term depression and to counteract the effects of surgery.

86 The Deputy President considered the favourable testimonies about WUT stating:

The multiple strong testimonies as to the services WUT has provided to the authors of those testimonies speaks well to his character and supports WUT's submissions that he meets the probity requirement in the Act.[84]

... being fit and proper is not only a matter of character and conduct when not in conflict with a given person. Crucially, judgement must be formed about the character and conduct of the person who finds him or herself in conflict with another. This is particularly important concerning probity with respect to a person seeking a PSIOL, where it can be assumed conflict may commonly occur.

In my view, the evidence in this case overwhelmingly demonstrates WUT's character to be lacking and conduct to be unacceptable.[85]

88 These were findings of fact that were open to the Deputy President on the evidence, which included WUT's oral evidence. He was entitled to conclude that his finding that WUT 'falsely declared a lack of treatment for mental health issues',[86] was relevant to whether WUT had satisfied the public interest requirement.[87]

89 In my opinion, it was also well open to the Deputy President to consider that evidence of WUT's conduct in conflict situations was relevant to whether it was in the public interest to renew his licence and whether he satisfied the fit and proper person requirement. His findings on these matters were findings of fact.

90 The grant or renewal of a licence to perform a regulated activity may be affected by the disclosure or non-disclosure of relevant information - the willingness of the applicant to disclose facts about themselves that may be relevant to their application. Probity, honesty, integrity and trustworthiness are significant elements in decisions on whether to grant a licence.[88] Thus in TLP v Chief Commissioner of Police (Review and Regulation),[89] Garde P considered that the probity requirement required:

[T]he applicant to demonstrate that he is of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails.[90]

91 A failure to disclose facts, particularly in response to direct questions is evidence of lack of honesty, integrity and trustworthiness.[91]

92 The duties of a private investigator or security agent may put them in conflict situations. The purposes of the Act include to regulate the private security industry for the purpose of ensuring public safety and peace[92] and the ability of a licensee to conduct themselves appropriately in conflict situations is relevant to achieving that purpose.

93 The Deputy President's reasons make clear that he considered that the evidence established that WUT was unable to conduct himself properly in conflict situations.

94 In my opinion, the Deputy President did not err in his construction of the public interest requirement contained in s 25(1)(a) or the probity requirement in s 25(1)(b) of the Act. As mentioned, the considerations relevant to those requirements overlapped.

Conclusion to questions of law 1, 2, 3, 12 and 23

95 WUT has not established that the Deputy President erred in the manner contended in questions of law 1, 2, 3, 12 and 23 or their grounds. The Deputy President's construction of the public interest and the probity grounds contained no error, and he made findings based on all the evidence before him, as he was obliged to do.

96 As mentioned, the Deputy President provided extensive reasons for his conclusion that WUT was not a fit and proper person to hold a licence. To summarise, he considered that while in situations without conflict, WUT conducted himself well, but when faced with conflict, the evidence 'overwhelmingly demonstrates WUT's character to be lacking and conduct to be unacceptable[93] ... with respect to a person seeking a [licence], where it can be assumed conflict may commonly occur'.[94] He also found that WUT had not been truthful about some past events when it suited him. It seems clear that it was a combination of factors, rather than one factor, that led the Deputy President to his decision and that WUT's conduct and form of communication when in conflict were particularly important.

97 WUT's questions of law 2 (which contains issues of statutory construction and irrelevant considerations), 4, 8, 10 and 11 contain contentions that the Deputy President erred by taking into account irrelevant considerations and by failing to take relevant considerations into account. The irrelevant considerations were WUT's answers to 'on the spot' prejudicial questions. Next WUT contended that the Deputy President wrongly took into account that he had a mental illness, which he said was unlawful discrimination. I consider this argument below along with other grounds concerning discrimination.

98 The relevant considerations were evidence of from two doctors, Dr L and Dr Gurtman, documents that WUT tendered - Exhibits A to O, which are considered below and 'multiple errors of law' including allowing 'on the spot' new evidence, 'constantly inundating and railroading [WUT] without notice or opportunity to defend, contrary to an undertaking at the directions hearing limiting the respondent's evidence, the reasons for decision given to [WUT] originally, the s 46 and 49 statement'. The issue of 'on the spot new evidence' is best considered in conjunction with WUT's natural justice grounds which occurs later in this judgment.

Relevant and irrelevant considerations - Legal principles

99 A tribunal does not err in law by taking into account a consideration in making a decision unless the statute under which the decision is being made expressly forbids such matters from being taken into account.[95] Where relevant considerations are not listed in the statute, they are identified from its subject matter, scope and purpose.[96]

100 For ease of reference, I will repeat the relevant purposes stated in the Act:

(a) to provide for the licensing and registration of certain participants in the private security industry; and

(b) to otherwise regulate the private security industry for the purposes of ensuring public safety and peace.[97]

101 A wide range of facts and matters which might affect public safety and peace are relevant to licensing decisions under the Act. The significance to be attached to them or the weight to be given them is for the Tribunal to decide. The High Court in Minister for Aboriginal Affairs v Peko-Wallsend Ltd ('Peko-Wallsend') emphasised that courts on appeal or review are not to substitute their own decision about the weight or the significance to be given to a particular consideration:

It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned.

It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power.[98]

102 Therefore, WUT can only succeed on the questions of law and grounds concerning relevant considerations if he establishes that matters the Deputy President took into account were not relevant to his licence renewal application or that relevant matters that WUT relied on were not taken into account.[99]

103 Question 2, which I have previously considered as a statutory construction question, also raised considerations issues and asked: did the Tribunal take into account irrelevant considerations in considering whether it was in the 'public interest' to grant the respondent a licence? The grounds to question 2 alleged that the irrelevant considerations were:

(a) that 'a person capable of the unacceptable conduct described above be entrusted with a PSIOL' (at [253]) and

(b) that an assessment of whether it would be in the public interest that the licence be granted to [WUT] could not be separately undertaken (at [252], especially considering the finding that there was 'strong evidence in support' of [WUT's] 'valuable work in cyber security' (at [251]).

104 Question 4 asks did the Tribunal take into account irrelevant considerations in considering whether [WUT] was a 'fit and proper person' pursuant to s 2 (2)(a) of the PS Act?

105 WUT contended that the Tribunal took into account the following irrelevant considerations: first, evidence of the accountant and his wife which he could not test it in cross examination and was unfairly prejudicial to him. Secondly, circumstances surrounding WUT's status as a Justice of the Peace with the Tribunal not accepting that his appointment was revoked as a result of his retirement or resignation. Thirdly, the Tribunal's doubt about WUT's qualifications from Charles Sturt University, when he tendered a certificate concerning these qualifications on 20 March 2019. Fourthly, the nature of WUT's correspondence with McGuire, Tas and Pinner, which the Tribunal said was abusive, unreasonable and harassing. Fifthly, the Deputy President's finding that he sent an abusive email to a Tribunal Member who had heard a case in which he was the applicant. Sixthly, WUT's interactions with Pinner and counsel for Victoria Police both in correspondence and to an extent during the Tribunal hearing were 'accusatory and unreasonable'.[100]

106 I accept that the Deputy President did take the substance of each of these matters into account in passages that I have previously summarised. But, none of these matters was an irrelevant consideration for the reasons I now give.

Particular 1 - Evidence of the former accountant and his wife

107 WUT submitted that the evidence of the former accountant and his wife was unreliable, unable to be tested by cross examination and unfairly prejudicial to him. He said that the accountant's statement should have been thrown out because he was not given the opportunity to cross-examine him or his wife.[101]

108 The former accountant and his wife obtained interim personal safety intervention orders against him, an order which he consented to. Their evidence in support of the order included that he had left bags of coins totalling $3,100, being the amount of a VCAT costs orders against him, outside their front door. He explained that he was angry and said 'that's the only thing I've ever done in that sense in my life.'[102] After discussions with police he removed the bags. He said in effect that he had sued the accountant in VCAT because he had charged him fees for taxation work to which he was not entitled because he had mismanaged it. VCAT had struck his case out after delays by the Australian Taxation Office in considering his liabilities, which in turn delayed his ability to present his case and he considered that this had been caused by the accountant.

109 His explanation for his consent to the intervention order was that it was a business decision[103] without findings or admissions of fact to avoid the delay that would occur before a contested hearing of the intervention order application could occur, which would be after the interim order had already expired.

110 The Deputy President's task was to make findings about that evidence and give it the weight that he considered appropriate. His reasons, which I have previously described, demonstrate that he considered the reliability of the accountant and his wife's evidence.[104] He considered their evidence as significant. He did take into account that WUT was unable to cross-examine them. He did not take into account all their evidence. Thus he said that his view of WUT's conduct towards the accountant and his wife did not turn on the issue of WUT being on the same return flight to Sydney as the wife. He mentioned the fact that the Magistrates' Court saw the evidence as sufficient to make an interim intervention order and WUT's action in leaving the bags of coins at their front door.

111 Although the accountant and his wife did not give oral evidence and WUT could not cross examine them, it was not in dispute that he left the bags of coins as mentioned and removed them after police became involved. This was very inappropriate behaviour which WUT described as 'a nasty thing', which he regretted and done 'because [he] was angry',[105] although he said it did not reflect his usual behaviour. Then there was the fact that WUT consented to the making of an interim intervention order against him. Although WUT said that his consent was not an admission and was made because of the time it would take to obtain a court hearing, these were matters for the Deputy President to assess.

Particular 2 - WUT's status as a Justice of the Peace

112 WUT submitted that the Deputy President's finding that his appointment as a Justice of the Peace was revoked was an error as he had resigned from that office.[106]

113 The Deputy President found that WUT's appointment had at one point been suspended but was restored after an investigation. With serious concerns continuing to be held about his suitability, he was again suspended, and a further investigation conducted. The Deputy President found that while WUT sent a letter of resignation days before his removal, it did not constitute a valid resignation. WUT was removed from office by notice published in the Government Gazette. The Deputy President found that, during the investigation, WUT sent a number of inappropriate, abusive, irrational and, in some cases, rambling correspondence to persons involved in or related to the investigation.[107]

[WUT's] claim that no other government department, apart from Victoria Police, has ever had a problem with him is untrue, as evidenced by the revocation of his governmental position. Whether or not he resigned the position makes no difference, the relevant department officers certainly had 'problems with him'.[108]

115 The significance of this issue for the Deputy President was not whether WUT resigned his appointment or whether it was revoked, but that, contrary to his evidence, he had had problems with other government departments.[109] This issue arose because in answers in cross-examination WUT said that every other government department found him to be a fit and proper person.

116 The Deputy President's finding was relevant to the determination of both statutory requirements: the public interest; and the probity issue of fit and proper person. The evidence established that a statutory notice revoking WUT's appointment was gazetted, whether or not he considered that he had also resigned.

Particular 3 - Charles Sturt University qualification

117 I have previously set out the Deputy President's finding that 'doubt is raised as to WUT's claimed qualification from the University' which was the fourth of sixth findings for his conclusion that WUT did not satisfy the statutory tests for the renewal of his licence. This finding was relevant to claims that WUT had not always told the truth, but also as to his conduct when this issue was raised with him. The claim was in an email from WUT and was that he held a qualification described as 'Charles Sturt University, IT Masters, Computer Forensics'.[110]

118 On 20 February 2019, Victoria Police emailed WUT attaching the University's letter which said that it had no record of WUT obtaining qualifications from it. Victoria Police said that this evidence would be relied on in this case.

119 On 21 February 2019, WUT replied with an email titled "VICTMISATION CAMPAIGN GONE WRONG".[111] He demanded to know the name of the author of the email, stating that sending the email anonymously was a breach of various legislation. He said in part:

This is hilarious. Happy retirement! Expect criminal charges and expect to be struck out for fishing, misfeasance and is an abuse of process in breach of the [Charter of Human Rights And Responsibilities Act]. It really is now obvious you have zero investigations skills. I really cannot stop laughing at the stupidity of the mistakes you have made.

...

I am more fit and proper that the entire Victoria Police force who recently enjoys sexting other offices, purchasing illegal firearms, and has difficulty countering firearms, pretends to 'intimidate innocent people purporting to catch people out on qualifications when the joke is on them, and the media will have a field day with this" and consistently losing two alleged breaches of Acts against others they victimise.[112]

120 The Deputy President was entitled to take both the question whether WUT had the University qualifications and his response to the police email into account in determining whether he satisfied the two statutory criteria. They were relevant to an assessment of WUT's truthfulness and his conduct when in situations of conflict.

Particular 4 - WUT's correspondence with McGuire, Tas and Pinner

121 WUT challenged the Deputy President's findings of fact about the contents of his communications with police officers as relevant evidence of his conduct when in situations of conflict.

122 I have set out the Deputy President's findings on these issue,[113] which included that at times the communications went into 'abuse and harassment' and included written attacks which were 'unreasonable and harassing'.[114] I have also set out the terms of some of WUT's communications with these officers. The Deputy President's findings were open to him and were relevant to his decision.

Particular 5 - Evidence of WUT sending an email to a Member of the Tribunal

123 I have previously set out the Deputy President's finding on this issue[115] and again I consider that his finding was open on the evidence and relevant to his decision.

124 The Deputy President considered the evidence about this event in detail.[116] The Member had heard a case in which WUT was the director of the applicant company and the respondent company had gone into liquidation or administration and WUT was upset, blaming the Tribunal for delay. The Member ultimately dismissed the case against the respondent company's director. The Member's statement said that the email caused her to fear for her personal safety and/or actions that WUT might take online to cause her harm. She said that it contained a threat to her and it described her in very abusive terms. The police record of interview recorded that WUT admitted sending the email, saying that it was rushed and his only intention was to complain. During the interview he signed a copy of the email.

125 At the hearing of the intervention order application, WUT, who appeared unrepresented, did not consent to the order and described the application as an abuse of process. The Member gave evidence by video. WUT responded by seeking to explain and justify the words in the email and agreed that he was its author. The Magistrate granted the Member an interim PSIO. About five months after the order was made in correspondence about pending criminal charges, WUT denied that he was the author of the email and said that he had been impersonated by an unknown computer hacker in an attempt to ruin his reputation. He said that he had been confused when he had admitted to sending the email and in fact had been thinking of a milder email that he sent three days after the first email and an email he had sent to the Member ten minutes before the alleged email.[117] He did not explain how an unknown hacker would have known of the details of the orders made in his Tribunal case, so as to send the email that the Member received.

126 In my opinion, there was ample evidence for the Deputy President's finding that 'it was more likely than not that WUT sent the email to the VCAT member' and that his later denials were 'implausible'.[118] The Deputy President did not consider that the fact that WUT had been charged with a criminal offence connected with the sending of the email, or whether that charge was likely to be proved, were relevant to his decision. But as the Deputy President found that more likely than not WUT sent the email, that was a finding on which he was entitled to place considerable weight when considering whether he was a fit and proper person to hold a licence.

127 The main point that WUT raised about the email to the Member was an argument that the Deputy President could not take this allegation into account because he had been charged with a criminal offence based on it and the hearing of that charge was pending. He said that the Tribunal had no power to judge him on the balance of probabilities as to sending the email to the Member when he was facing trial in the Supreme Court by jury on a criminal trial.[119]

128 I consider that the Deputy President did not err in finding that on the evidence before him, it was more likely than not that WUT sent the email. That finding was clearly relevant to the decision that the Deputy President was required to make. He was not deciding the criminal charge, but making findings on the evidence about a matter relevant to the public interest issue and the probity issues. As I explain later, in dealing with WUT's questions involving the Charter of Human Rights and Responsibilities, he was entitled to do that. There is no principle of law that prevents such a finding.

Particular 6 - WUT's interaction with Victoria Police staff at the Tribunal hearing

129 The Deputy President found that WUT's correspondence with the solicitor acting for Victoria Police in reply to standard correspondence about the Tribunal case, was 'entirely unwarranted and unreasonable'.[120] I have previously set out parts of these communications, one of which ended with the statement:

...I intend to include you in my claim for unlawful discrimination against the dishonourable Mr Pinner when such time occurs.[121]

130 He also found that WUT's conduct in this case toward Pinner and counsel, both in correspondence, and to an extent during the hearing, was accusatory and unreasonable. As previously mentioned, when being cross-examined, he told Victoria Police's counsel that he would sue him and said that was not a threat but a promise.

131 These findings were relevant to the Tribunal's decision as they were evidence of how WUT might act when dealing with officers exercising public authority, as he might frequently have to, if his licence was renewed. WUT relied on his right of freedom of expression, but the Tribunal was entitled to find that the tenor of his communications crossed the line between on the one hand, robust expression of his position and on the other hand, words that were inappropriate for a person holding a licence. He was entitled to find that that was particularly the case with the email to the Tribunal Member.

132 Question of law 4 and its grounds fail, because none of the six matters was an irrelevant consideration, each of them was relevant to the two statutory issues that the Deputy President was required to answer.

133 I will next deal with the questions 8 and 10 and grounds that contend that the Tribunal failed to have regard to relevant considerations. I will consider question 11, the 'multiple errors of law' questions, when dealing with WUT's adequacy of reasons question.

Did the VCAT err by failing to take into consideration a relevant consideration, namely the evidence of Dr Gurtman and Dr L, (as misrepresented by the Respondent and taken out of context in the representations to the Tribunal and this Court) by failing to make reasonable adjustments for [him as a self-represented litigant] to allow Dr Gurtman to give evidence within his suggested alternative dates in its determination of whether the appellant was a 'fit and proper person' pursuant to s 25(2)(a) of the PS Act at [231] - [233], and in its obligations under s 97, s 98(1) and s 102 of the VCAT Act, s24 of the Charter, case law and practice notes relating to fair hearing obligations (especially for a SRL)?[122]

135 I have previously described the evidence of Dr L, WUT's general practitioner and Dr Gurtman who administered an on line psychological test and assessed its results, but never met him.

136 Victoria Police advised WUT that they required Dr Gurtman to attend for cross-examination, but the doctor replied that he was unable to attend on the first hearing day and generally required 3 to 4 weeks' notice. He wrote to the Tribunal:

My brief report dated 26 November 2018 should be fairly self-explanatory and given that his was not a comprehensive assessment (nor written with any Court proceedings in mind) there is very little that oral evidence would add to it.

[WUT] also informs me that he wishes to communicate to the tribunal that in the last eight years, he on a couple of occurrences had a prescription for Valium and a prescription for Seroquel, he has advised that the latter he refused to take and the former was intended to merely offset a side effect of Duromine, a medication commonly prescribed for weight loss that has a side effect that on an as need basis is not unusual to take to offset such side effect. [WUT] also advises he has had four bariatric surgeries including revisions over his lifetime. I do not have any further details of these matters.[123]

137 Dr Gurtman was not called to give evidence at the Tribunal hearing. The Deputy President queried his availability and WUT replied:

Well, he wasn't available to come here but that - the whole purpose of that [being Dr Gurtman not giving evidence] was a completely voluntary statement that I - I did myself. I don't feel I have to justify anything medically to - to Victoria Police because they've got no evidence at all that I have any mental or psychological disorder

...

But his report speaks for itself.[124]

138 Counsel for Victoria Police submitted that WUT made a forensic decision not to call Dr Gurtman as a witness. Dr Gurtman stated in his letter that he was 'incredibly busy'. WUT gave evidence that he did attempt to have him attend to give evidence.[125] WUT had apparently arranged the psychological test with Dr Gurtman after Victoria Police had requested medical information about his mental health.

139 The Deputy President's reasons considered Dr Gurtman's report, but gave it no weight. He noted that it had not been prepared for legal proceedings and in effect, that the doctor's assessment of WUT was not consistent with other evidence. The Deputy President was entitled to form the opinion that 'a report based on information provided by WUT, him having never met Dr Gurtman has no weight'.[126] There was no failure to take it into account, rather the Deputy President did consider it, but gave it no weight. That determination was for him and does not involve any error. He was not obliged to make any adjustment to the hearing schedule to enable Dr Gurtman to give evidence. WUT did not ask him to and Dr Gurtman said that oral evidence would add very little to his written report.

140 Dr Gurtman had never met WUT, but only assessed his answers to questions in a psychological test about the significance of which there was no evidence. Dr Gurtman's letter suggests that he could have added little had he been called to give evidence.

141 The Deputy President referred to Dr L's evidence, in the passages which I have previously set out.[127] He was WUT's general practitioner. He stated that:

WUT said the above opinions had previously satisfied Victoria Police as to his mental health. He did not provide a further report from Dr L nor call him to give evidence. When asked why he had not obtained a further report, WUT replied it was 'none of your business'.

At one point, WUT denied the proposition that he never sought a further opinion from Dr L because Dr L would have advised that he had treated WUT for depression. This was in the context that, as put to him, Victoria Police's letter of 26 April 2018 had invited him to provide a comprehensive medical report responding to Victoria Police's concerns, which WUT did not provide, saying the previous report from Dr L was sufficient, and previously accepted by Victoria Police.

...

During cross-examination, counsel for Victoria Police asked WUT whether he was being truthful in writing in this response about no longer taking or taking much less of medications used in the treatment of mental health issues. WUT spoke of suffering depression for one week at a bad time in his life.[128]

WUT's ongoing refusal to cause Dr L or another medical practitioner to provide a fulsome report to clarify the issue of whether or not he has in the past been treated for psychiatric or psychological problems is unacceptable. As an applicant for a renewal of license, he is required to provide information requested.[129]

The two brief statements by Dr L do not assist. In the context of the other evidence in the case, I regard his statements that there is no medical reason that WUT should not be licensed, as quite possibly made in the context that mental illness, either past or current, has been appropriately treated or is being appropriately treated.[130]

145 WUT submitted that the Deputy President erred when he concluded that his refusal to provide a 'fulsome report' with respect to previous mental health issues was unacceptable, as he had never been asked to provide such a report.[131]

146 Dr L's reports were written in 2015 and 2016 and WUT decided not to call him. The Deputy President referred to them, but decided, as he was entitled to do, that they did not assist WUT. They were expressed in general terms and did not discuss the issue of his mental health.

147 Question 10 asked: did the Tribunal err by failing to take into consideration a relevant consideration, namely all exhibits tendered by the appellant at the trial to be considered at the level required by the originating enactment, the law (and no greater), in its determination of whether the appellant was a 'fit and proper person' pursuant to s 25(2)(a) of the Act? The ground alleged a failure to take into consideration relevant evidence being the exhibits tendered by WUT.

148 WUT's submission in this regard focused on the medical reports, which I have discussed. I have concluded that the Deputy President did take into account, and the exhibits that he tendered.

149 In the grounds attached to question 3, WUT contended that the Deputy President failed to take into account his Exhibits A to O and it is convenient to consider that submission at this point. I do so applying the principle that the Court cannot set aside the Tribunal's decision because it would have given different weight to a relevant consideration.[132]

150 Exhibit A refers to an article in The Age titled 'Sexting officer steps down as Dutton intervenes over corruption claims'. WUT argued that the Deputy President did not accept any case about impropriety by Victoria Police.[133]

151 I have previously discussed WUT's reference to the level of review required by the 'originating enactment' and noted that the Deputy President was required to make his own decision on the evidence and submissions before him and not review the procedure adopted, and reasoning applied, by Pinner the original decision maker.

152 The Deputy President was not obliged to consider this article, which did not concern Pinner. In any event, any impropriety by Victoria Police was not relevant in the Tribunal's determination of whether on the evidence before it WUT was 'fit and proper person' within the meaning of s 25 of the Act. Exhibit A was therefore not relevant to the Deputy President's decision.

Exhibits B to G - Previous Tribunal decisions

153 Exhibits B to G were Tribunal decisions, which WUT argued the Deputy President should have applied in determining whether he was a fit and proper person. In his view they set standards generally applied by the Tribunal and demonstrated that people who had done much worse things than he was said to have done had been granted a licence.

154 Previous Tribunal decisions about the grant of licences did not bind the Deputy President as they were decided on their particular circumstances. The Deputy President's task was to apply the statutory terms of 'public interest' and 'fit and proper person' and do so after making findings of fact concerning WUT. Nonetheless, the Tribunal noted the authorities and stated:

Among the various documents WUT provided during the proceeding, he provided a set of VCAT decisions. In submission, WUT made some broad references to these decisions. However, as each case turns on its own facts and the principles set out in those cases are very largely the principles set out in these reasons, they do not assist.[134]

156 Exhibit H is the report of Dr Gurtman dated 26 November 2018 to which I have referred. To reiterate, I do not find that there was an error of law in relation to the consideration of the doctor's report.

157 Again I have dealt at an earlier point with the Deputy President's consideration of these records. There was no error in his approach to them.

158 Exhibit J contains a national criminal history check that shows WUT had no disclosable court outcomes recorded as at 3 August 2018. WUT submitted that this exhibit was relevant, as it went to his good character and his determination whether he was a 'fit and proper person'.

159 The Tribunal accepted that WUT had no relevant criminal history.[135] There is no error of law in relation to the consideration of Exhibit J, the Deputy President took it into account.

160 Exhibit K is a Victoria Police suitability reference made by 'Witness B', who said that he knew WUT in a professional capacity for over seven years and had weekly contact with him. He regarded WUT highly.

161 WUT submitted that had the Deputy President taken Exhibit K into consideration, he would have ordered the renewal of licence, bearing in mind that Witness B was a reputable security trainer who had been in the industry for over 20 years.

162 The Deputy President described the witnesses' evidence as speaking well as to WUT's character and supporting his submission that he met the probity requirements of the Act. But he also explained that he had to consider WUT's conduct when in conflict with others. The Deputy President's reasons establish that he took into account the evidence of Witness B and that was all he was required to do.[136]

163 Exhibit L was a Victoria Police suitability reference given by WUT's dentist, which contained positive observations of WUT. The dentist's relationship with WUT was a patient-dentist relationship of about three years. WUT submitted that the Deputy President did not refer to the dentist's reference and therefore did not consider it. At paragraphs [5] and [223] and [226] the Deputy President referred to a 'substantial volume of documentary evidence' and 'references and testimonials' and 'multiple strong testimonies'. I consider these statements establish that he did take into account the dentist's reference. In any event, the probative value of this reference, considering the frequency and nature of WUT's contact with the dentist was modest and accordingly it was unnecessary for the Deputy President to make specific reference to it.

164 Exhibit M was a response by WUT to Victoria Police's decision not to renew his licence. This was not relevant to the Tribunal review, which required making a fresh decision. I do not consider that the Deputy President erred by basing his decision on the evidence before him, rather than other material that was relevant to the decision Pinner made.

165 WUT submitted that by the Deputy President not taking exhibit N into account he was denied natural justice, because his grievances and complaints were not considered. Exhibit N is an email exchange between WUT and Pinner. Victoria Police submitted that this document was irrelevant for the purpose of this appeal because it concerned the original decision not the Deputy President's. I accept that submission. Further, the Deputy President made clear that he would take into consideration all evidence that was before the Tribunal and there is no evidence that he did not do so.

166 Exhibit O contains extracts from other exhibits including allegations that Pinner breached the VCAT Act and statements that WUT was commencing proceedings against him. The Deputy President was not obliged to take these materials into account.

167 But, the Deputy President also referred to other evidence that WUT provided and which he read, although WUT did not specifically draw his attention to.[137] He mentioned further references and many testimonials which WUT provided 'which highly praise the services he has provided utilising his expertise in cyber security to a great variety of people'.[138] He said that:

The testimonials praise his expertise, professionalism, ability to communicate well with lawyers, tenacity in obtaining justice, his maturity, the support he gives people under great stress and the results he quickly and efficiently achieves.[139]

However, being fit and proper is not only a matter of character and conduct when not in conflict with a given person. Crucially, judgement must be formed about the character and conduct of the person who finds him or herself in conflict with another. This is particularly important concerning probity with respect to a person seeking a PSIOL, where it can be assumed conflict may commonly occur.[140]

169 None of the matters raised as part of question 10 or the grounds or the grounds to question 3 raise a question of law or establish that the Deputy President erred in his decision or failed to take into account relevant considerations. Most of the documents or evidence to which WUT referred appear to have been taken into account and were in any event of limited relevance.

Questions 6 and 7 - Reasonableness of the Deputy President's conclusions with respect to mental illness

170 Question 6 asks whether on the evidence before the Tribunal it was reasonable for the Deputy President to find that WUT had more likely than not suffered a mental illness and had been treated for it. It was expressed as follows:

Did the VCAT err in law in finding that the appellant has, more likely than not, suffered undisclosed "mental or psychological illness" defined by the Australian Psychological Society (attached as Exhibit N-1 to appellant's affidavit dated 13/01/20) as:

(a) "sadness";

(b) "flat or low mood;

(c) "a sense of emptiness"; and

(d) "is prolonged - lasting weeks, months and sometimes years"

and was not just "feeling down" for less "than two weeks" without ever having a "diagnosis of depression" from "a psychologist" as he has claimed at [228] (the appellant has never been diagnosed with nor holds the competence to define a "psychiatric or psychological condition"); where the VCAT had no psychiatric medical evidence to support such finding, and/or it was not reasonably open to the VCAT on the evidence before it to make such a finding?[141]

171 The grounds contended that the matters on which the Deputy President relied, being the medical reports and the views of others, the former accountant and his wife were inherently unreliable, inconsistent, unfair and prejudicial to WUT, and provided insufficient weight to support the findings**. Question 7** is a similar question but also relies on Dr L's reports and the limits on the Tribunal's right to draw inferences.

172 WUT's argument that the Tribunal's findings were not reasonable were as follows. He was never asked for a full medical report and the Tribunal could have called Dr Gurtman to give evidence.[142] In any event, his GP, Dr L, responded to the information that Victoria Police requested.[143] The note on his file at Peninsula Health that he was taking 10 Valium a day was wrong, and he had requested that an additional note to that effect be added to the file.[144] He said that, he 'had some hard times ... but only for very short periods' and had been 'prescribed with one or two Valium, and that was it'.[145] He referred to deaths and illness in his family. He also said that he could not consciously tick a box, on the licence renewal form, stating that he was being prescribed with medication for a mental or psychological disorder, when he did not know how those terms were interpreted.[146] He had not been obliged to disclose whether he was suffering from a mental condition or taking a drug.[147] He considered that he was being victimised by Victoria Police despite the fact that they had previously licensed him.[148]

173 WUT also argued that the Deputy President, although not medically trained, had 'thrown out' his forensic psychiatrist's report.[149] He said 'it was not lawful for a VCAT Member to presume a disability in order to determine that he was lying under the Equal Opportunity Act 2010'.[150] That latter point is dealt with below in dealing with other questions of law concerning alleged discrimination.

174 The Deputy President concluded that WUT more likely than not had suffered mental illness and been treated for it for more than the short duration that he claimed. His reasons showed that he made a detailed consideration of relevant evidence. It is convenient to set out again the first part of the Deputy President's reasons for this conclusion:

First, I do not regard WUT as truthful when he made statements that he had not received psychiatric or psychological treatment as described above, including in his oral evidence given in this case. More likely than not, he has suffered mental illness and been treated for it, for more than the very short duration he has claimed.

There is strong evidence that WUT has suffered mental illness and has been treated for it. This comes from the October 2011 clinical notes on the drug screen report; the 2014 Peninsula Health report; WUT's 10 February 2015 statutory declaration; views taken, not by medical practitioners, concerning his mental capacity given the nature of some of his correspondence; and observations of the accountant and recounting by the accountant's wife of the telephone call from WUT's mother. WUT's explanations of only short-term depression and medications to counteract surgery related treatment are unpersuasive in that context.[151]

175 As previously explained, to succeed in challenging the Tribunal's findings of fact, WUT needed to establish that there was no evidence for its conclusions. Arguments that findings of fact were unreasonable cannot succeed when there was evidence to support the findings. The respondent referred to authority that:

If there is some evidence or other probative information supporting the finding of fact of the tribunal, the finding will be legally open to the tribunal to make in the exercise of its statutory jurisdiction. In an appeal of this nature, the court could not overturn the finding even if it thought that it was erroneous or against the weight of evidence.[152]

176 The Deputy President's reasons described the relevant evidence in detail and it cannot be said that there was no evidence to support his conclusions.

177 Question 7 questions the weight the Deputy President should have given to the evidence that WUT had had a mental illness. That was for the Deputy President to decide and his decision does not give rise to a question of law. The law in this respect, which is applicable in all courts, is:

If [the evidence] is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue. The supervisory jurisdiction of the High Court does not entitle it to usurp this responsibility and to substitute its own view for his. [153]

178 The inferences that can be drawn from evidence in the proceeding is a question of fact and not a question of law that can give rise to an appeal:

... a finding of fact, including an inference drawn from primary facts, will not constitute a reviewable decision because it will be no more than a step along the way to an ultimate determination.[154]

179 In not accepting WUT's medical evidence, the Deputy President did not purport to apply his personal medical knowledge or learning, but, as he was obliged to, based his decision and conclusion on the evidence before him. Judicial officers frequently have to make findings about disputed medical questions. They do so by reference to all the evidence, including expert evidence, before them that they consider deserves weight. By this process they are not applying their own medical expertise, but making findings about the medical evidence presented to them.

180 In any event, the evidence supported the Deputy President's findings that WUT, on the balance of probabilities, had received treatment at least in the form of medication for a psychiatric or psychological condition, was reasonably open on the evidence[155] including the medical records to which he referred.[156] On that basis, WUT's answer on the renewal application form was incorrect and untrue.

181 In any event, I consider questions 6 and 7 raise questions of fact and not questions of law.[157]

WUT's communications while Court's judgment reserved

182 While this judgment was reserved, on two occasions, WUT by email sought to provide and rely on material that he had found that he said, as I understood it, contained relevant instances of police corruption. I refuse him leave to do so because my jurisdiction and power are to hear appeals on questions of law based on the oral and documentary evidence that was before the Deputy President. In addition, this appeal is concerned only with the decision the Deputy President made in respect of WUT's renewal application. It is not an inquiry into the conduct of the police force. There are other avenues for such matters to be raised.

183 Question 20 can also be treated as a considerations ground. It asks: did the Tribunal err when the Deputy President did not consider the evidence that the enabling enactment was breached by the original decision maker in coming to their decision? The grounds are that the Deputy President erred in not considering the evidence that the enabling enactment was breached by the original decision maker in coming to their decision. WUT alleged that Pinner never held an investigation into any alleged inquiry, never gave sufficient notice of cancellation and opportunity to respond as the Act required and that the appeal never had jurisdiction, because the original decision was void due to the illegal way that the police had made it. WUT said that Pinner's decision was not validly made and he was not served with proper documentation. He was kept 'dangling' by the police for four years while there was an investigation going on.[158]

184 As I have previously stated, the Tribunal's duty was to hear and decide the application on the evidence and submissions presented to it and to reach the correct or preferable decision. It was not reviewing the original decision to see if it contained a legal or factual error of significance or to decide whether Pinner held a valid inquiry. If it had attempted to carry out such a task, it would have exceeded its jurisdiction.

185 WUT said that Victoria Police had deliberately delayed in making a decision about his licence renewal. Assuming, without deciding, that that did occur, it did not alter the Deputy President's obligation to decide the application on the evidence before him to decide on that evidence whether WUT satisfied the statutory criteria to hold a licence.

186 The Tribunal's jurisdiction is to re-exercise the function of the original decision maker, not in any way to sit in appeal from the original decision.[159] There are many cases demonstrating that it is no part of the Tribunal's function to review the original decision-making process, for example, to determine whether it was fair.[160] Once the Tribunal's role is understood, it is clear that the matters raised in question 20 do not establish any error.

Questions concerning discrimination by Victoria Police's request for medical information about WUT

187 WUT made submissions about the lawfulness of Victoria Police's questions about his mental health and the use made of information obtained. He contended that the questions about, and reliance on, his mental health breached discrimination laws. This issue was raised by questions 9, 13, 14, 15 and 16, which I next consider. WUT framed this issue as: 'is it lawful for a [Tribunal] member to be able to assume a presumed disability in order to determine that I was lying under the Equal Opportunity Act 2010?'[161]

188 The first of these questions**, question 9** asked**:** did the Tribunal err in law in finding that there were no actions by Victoria Police (as a statutory body) or Tribunal (acting in the same capacity) relevant to this proceeding which would cause the Charter of Human Rights and Responsibilities Act 2006 ('Charter') and Equal Opportunity Act 2010 to impact the lawfulness of decision making factors, their admissibility and the effect it has in making 'the correct and preferable decision' in considering the unlawful discrimination in the area of products and services, being the primary reason (alleged untruthful declaration of a 'presumed attribute' being a 'protected attribute') for the cancellation of a PSIOL pursuant to s 25(2)(a) of the Act? The grounds alleged that the Tribunal erred by failing to consider or apply ss 13, 15 and 18 of the Charter when (a) considering the actions of Victoria Police [requiring] [WUT] to provide personal information and medical evidence to it and to the Tribunal; and (b) determining that the evidence provided by [WUT] was 'unacceptable'.

189 Question 13 asked**:** did the Tribunal err in law by not complying with the same requirements which the original decision maker must abide by under the Equal Opportunity Act 2010, which makes it unlawful in coming to any decision relying on any guessed dishonesty of the appellant surrounding a 'protected attribute' being a 'presumed attribute' of discrimination in the area of products and services, in the filling out of application and renewal forms under the Act? The ground alleged that the Tribunal erred in law by not complying with the Equal Opportunity Act 2010 by accusing WUT of consciously and knowingly having and withholding a 'presumed attribute' that is a 'protected attribute' being a 'psychiatric or psychological condition'.

190 Question 14 asked: did the Tribunal err by failing to take into consideration a relevant consideration, namely the fact that such assumption is unlawful discrimination, and cannot [have] legally been relied on by either decision maker under the Equal Opportunity Act 2010 deeming the decision under s 25(2) an unlawful decision based on 'discrimination in the area of products and services'? The grounds of question 14 alleged that even if WUT did suffer from a 'mental or psychological disorder', there was no lawful obligation on him to disclose it and that the Tribunal's assumption was unlawful discrimination.

191 Question 15 asked: did the Tribunal err by failing to take into consideration a relevant consideration, namely that the VEOHRC accepted the complaint of 'discrimination for the cancellation of its PSIOL', confirming that such detrimental action of the original decision maker could be considered unlawful? The ground alleged that VEOHRC's acceptance of his complaint confirmed that the decision maker's action was unlawful and it relied on a 'presumed attribute' which was a 'protected attribute' of 'discrimination in the area of products and services' and the decision-maker took detrimental action [on] assumptions of dishonesty in wilfully allegedly not declaring the presumed attribute.

192 Question 16 asked: '[d]id the Tribunal err by failing to take into consideration the lawfulness of the application form or the harm to the appellant?'[162] The grounds allege that the question on the application form was unlawful and completely inadmissible as it was a form of discrimination in the area of products and services.

Consideration of and conclusion on questions 9, 13, 14, 15 and 16

193 The licence renewal form and previous application forms required WUT to answer a question whether in the last five years he had been treated for psychiatric or psychological conditions and if the answer was yes, he was required to obtain a medical report from a treating doctor or a doctor familiar with the condition stating whether, in their professional opinion, the medical condition did or did not prevent him being a fit and proper person to hold a private security licence for the security activities being renewed.

194 As previously mentioned, the Deputy President considered that the question of WUT's mental health was relevant to questions about his character if he made a false declaration about treatment and his conduct. He concluded:

First, I do not regard WUT as truthful when he made statements that he had not received psychiatric or psychological treatment as described above, including in his oral evidence given in this case. More likely than not, he has suffered mental illness and has been treated for it, for more than the very short duration he has claimed.[163]

195 The Deputy President's finding was open on the evidence and there was no error in his approach. He treated the question as primarily relevant to WUT's truthfulness and to do so did not breach the law. Moreover, where medical or mental health considerations may be relevant to an ability to perform a regulated activity, relevant information can be sought by the regulator, as occurred here. VEOHRC's acceptance of a complaint by WUT did not mean that an unlawful act of discrimination occurred. The focus must be on the Deputy President's decision and he made clear in the passages that I have set out, the limited role of the mental health questions - they were relevant to WUT's truthfulness and conduct.

196 In any event, WUT's questions of law do not reveal any error. The Deputy President did not make a determination under the Equal Opportunity Act 2010, nor did he assume that WUT had a presumed disability. He found on the balance of probabilities that WUT had been untruthful in his application as a result of his failure to disclose a mental illness.

197 It is also relevant to note that the delegate was seeking information about medical conditions to perform the Chief Commissioner's statutory duty under s 25 of the Act, including to determine whether it was in the public interest to renew the licence and whether WUT was a fit and proper person to hold a licence. Section 75 of the Equal Opportunity Act provides for circumstances where things are done with statutory authority and provides that:

(1) A person may discriminate if the discrimination is necessary to comply with, or is authorised by, a provision of -

198 I consider that in asking the question, the Chief Commissioner was seeking information necessary to comply with, or authorised by s 25 of the Act.[164]

Natural justice and procedural fairness questions

199 WUT relied on a number of questions contending that the Tribunal did not provide him with procedural fairness, particularly as he was self-represented. I will consider his questions which are principally concerned with such issues.

200 Question 5 asks: did the Tribunal err in law in denying the appellant, a self-represented litigant, natural justice and/or procedural fairness during the hearing of his application, and in the proceeding generally? The grounds are that the Tribunal:

(a) Prevented the appellant from asking questions of witnesses called by the respondent to give evidence;

(b) Refused to permit the appellant to cross-examine witnesses, including the persons described in the reasons as "the accountant" and "his wife";

(c) Refused to allow the appellant's objections to questions asked by counsel for the respondent of the appellant's witnesses;

(d) Permitted inappropriate and/or unfair questions to be asked of the appellant's witnesses;

(e) Failed to comply with VCAT Practice Note PNVCAT3 and in particular the VCAT's duty to assist self-represented parties;

(f) Through its Principal Registrar, refused to grant a subpoena to produce documents sought by the appellant directed to Senior Sergeant David Pinner, the person responsible for making the decision under review;

(g) Refused to permit the appellant to file and have listed for hearing and determination an application under Section 75 of the VCAT Act to strike out some or all of the respondent's evidence; thereby denying the appellant procedural fairness during the hearing of the application, and in the VCAT proceeding generally;

(h) Failed to take into consideration the relevance to the appellant's "services" (such services being sought for in the licence), which were not in dispute, found by the VCAT to be exemplary and in the public interest when alleging untruthfulness on the application form which only required reasonable disclosure if those "services" were affected by any "protected attribute"? See attached as Exhibit N-2 to appellant's affidavit dated 13/01/20, accessed from https://www.humanrightscommission.vic.gov.au/the-workplace/workersrights/disclosing-disability[165]

201 Question 17 asks: did the Tribunal err in not informing the SRL (self-represented litigant) of its intention to rely on unverified, unchallenged or misleading evidence that would be detrimental to the SRL? The grounds are:

That the VCAT erred in not informing the SRL of its intention to rely on:

(a) unverified, unchallenged or misleading evidence that would be detrimental to the SRL;

(b) evidence of one-sided statements from alleged witnesses who mislead the Tribunal and who were led by the police to make false statements;

(c) verbal (non-evidence based, on the fly) submissions from Victoria Police in relation to a challenged decision in relating to the Applicant's unrelated voluntary decision to quit the office of justice of the peace;

without abiding by higher court case law, s97, s98 and s102(1) of the VCAT Act, s24 of the Charter of Human Rights and Responsibilities Act, the obligation of judicial officers to procedurally assist the SRL in the interests of justice by:

1. giving the SRL the opportunity to procedurally oppose that evidence;
2. advise that since such one-sided misleading statement evidence will be given weight, allow it to call the witnesses for cross examination and question them as to their untruthful, misleading and led one-sided statements;

1. be given the opportunity to call evidence in defence; and

1. taking into account, "In the Supreme Court of Victoria, Justice Bell identified that in almost all cases, self-represented parties will be entitled to seek judicial review for breach of the rules of procedural fairness and excess of jurisdiction when a court or tribunal fails to apply the right to equality under s 8(3) and a fair hearing under s 24(1) of the Charter. He explained the obligations of courts and tribunals under the Charter to apply those human rights in proceedings are very close to, and in almost all cases coextensive with, their obligations under the common law to give self-represented parties such advice and assistance as well as ensure a fair trial.

The Supreme Court (Justice Bell) has stated that "courts have a responsibility under the Charter to ensure that self-represented litigants can participate effectively in legal proceedings. Courts must ensure that self-represented litigants understand the relevant procedure and legal test and in particular must make reasonable adjustments to ensure a fair hearing for self-represented litigants.

Justice Bell unequivocally stated that the duty to ensure a fair hearing is "inherent in the rule of law and the judicial process. Equality before the law and equal access to justice are fundamental human rights". The case builds on Justice Bell's 2007 decision in Tomasevic."[166]

202 Question 18 and its grounds ask: did the Tribunal fail to assist the SRL as required by Practice Notes (PNVCAT3) by not advising him that the statements by his former accountant and the accountant's wife, relied on in the intervention order application, were to be heavily relied on and of his right to call witnesses, including to cross-examine the former accountant and his wife and of the necessity to defend such allegations and instead misleading the appellant to believe that their statements would not be given much weight? The grounds are that the Tribunal should have advised him of the necessity to 'defend' such evidence in the interest of natural justice and in accordance with VCAT's Practice Note to assist self-represented litigants and should have given him the opportunity to cross-examine those witnesses.

203 Question 19 asks: did the Tribunal err in the same principle with respect to the SRL's submitted evidence and reports? The grounds are:

[T]he Tribunal erred in the same principle with respect to the:

1. dismissal in entirety of the appellant's voluntary psychological report and the expert witness's willingness to appear on an alternate day;
2. finding that the psychologist was not made available during the times of the hearing but did not report in its written findings that offer timeframes of availability were available to the Tribunal, and that the Tribunal should have adjourned one of the days to hear such evidence and advised the appellant of such if it was going to completely dismiss it;

1. admission of all 'on the fly' undefendable "evidence" put forward by the Respondent that the appellant could have easily provided evidence in defence had it been given the opportunity, such as the frivolous and completely untruthful fishing exercise by the Respondent in the guesswork that the appellant held an MBA from CSU, were the transcript reveals that the Respondent misled the Tribunal, being an offence under the Act; and

1. admission of "verbal", irrelevant and on the fly, evidence concerning the character of the Appellant, which was in contradiction to all of the appellant's witness testimony ignored by the member;
2. admission and acceptance of ludicrous claims by the Respondent that by the appellant applying its right to "freedom of expression" in legally defending its position, making statements as to its rights under the law, and making promises that it will be filing complaints, that by doing so, in making complaints about the Victoria Police and its lawyer, that such conduct was "unacceptable communication" which is a breach of the Charter of Human Rights Act 2006 and the obligation of public servants to be held accountable for their actions;
3. ignoring all of the electronic video, media, radio, and newspaper evidence that the appellant was not allowed to present in the Tribunal and which the appellant has forensic evidence that supports the Member did not even attempt to view.[167]

204 Question 25 asks**:** did the Tribunal err in not abiding by the Victorian Model Litigant Rules to ensure a consistent decision in the shoes of the decision maker? The grounds are:

[T]he VCAT erred in not abiding by the model litigant rules to ensure a consistent decision in the shoes of the decision maker by allowing Victoria Police to intentionally withhold evidence, deceive the Tribunal and to run a formal, criminal-like prejudiced case using an unethical criminal prosecution barrister in breach of the Barrister Rules who knew he was in breach and sought to get an undertaking off the weaker SRL that his conduct in this case be suppressed. Such conduct included:

(a) inappropriate questioning during cross examination of witnesses and the appellant;

(b) a strong conflict of interest as the barrister has appeared in all defended cases, expressing personal views without a fair hearing and it is my view his conduct breaches the Legal Profession Uniform Conduct (Barrister) Rules 2015, and/or professional ethics;

(c) breaching various Barrister's rules.[168]

205 Question 26 asks: did the Tribunal err in allowing the continual introduction of new evidence without giving the SRL opportunity to defend against such claims? The grounds are: statements from WUT's former accountant and his wife; misinformed claims of false qualifications; presumption of being 'guilty' of an alleged crime that has not been heard; and false presumption of having been subjected to orders under the Personal Safety Intervention Orders Act 2010.[169] I have previously dealt with some of these factual issues.

206 WUT argued that the Tribunal did not afford him natural justice as required by s 97 of the VCAT Act, it breached the fair hearing rule, and did not permit him to call evidence and witnesses as he was entitled by ss 98 and 102.

207 The Tribunal is bound by the rules of natural justice and must allow a party reasonable opportunity to call or give evidence, to examine, cross-examine or re-examine witnesses and to make submissions.[170]

208 I will next consider the key matters arising from the grounds to question 5 that I have set out.

Particular 1 - Prevented from asking questions of witnesses

209 WUT submitted that the Tribunal prevented him from asking questions of witnesses called by the respondent to give evidence. He referred to one occasion when he was interrupted by the Deputy President and asked:

Why don't you ask the witness how she was drawn in?[171]

210 However, as he conceded, this interruption was helpful, and not an example of him being prevented from asking questions. This contention has not been established.

Particular 2 - Refused permission to cross examine witnesses

211 WUT argued that the Tribunal refused to permit him to cross-examine witnesses, including the 'accountant' and his 'wife'.[172] They had given evidence at an intervention order application and the Deputy President gave some weight to the events that led to the Magistrates' Court making such an order.

212 Section 102(1)(b) of the VCAT Act requires the Tribunal to allow a party a reasonable opportunity 'to examine, cross examine or re-examine witnesses'. The accountant and his wife were not called as witnesses As previously mentioned, the Deputy President noted that the former accountant and his wife were unable to be cross examined and acknowledged that the weight of the evidence in their statements was somewhat lessened and took that into account.[173] The main matters from their evidence on which the Deputy President relied were WUT's action in leaving coins totalling $3,100 outside the accountant's front door in payment of a costs order and the fact that he consented to the intervention order. WUT gave evidence about these matters as did Pinner. He knew from the time of Pinner's decision that the accountant and wife's evidence might be significant. He knew how to call witnesses. The respondent was not obliged to call them. He has not established any breach of natural justice by the Deputy President associated with calling witnesses, either as to his knowledge of their relevance or the procedure to require their attendance .

Particular 3 - Refused to allow objections to questions of witnesses

213 WUT submitted that the Deputy President refused to allow his objections to questions to him by counsel for Victoria Police. He gave as an example:

COUNSEL: Are you aware that a Member of this tribunal has an intervention order against him?

WITNESS: No.

WUT: I object to that, Deputy President.

THE D.PRESIDENT: On what basis?

WUT: On the basis this - on the basis that that is part of another court case that has not yet been determined and that is under - they - that is - that is being defended legally and the human rights charter ... innocent before presuming guilty.

THE D.PRESIDENT: Mr Payne, perhaps I would ask you - taking on board WUTs objection, perhaps I take on board a slightly clearer question as to the nature of - I understand it's an interim intervention order - - -

...

COUNSEL: Okay. But he's been involved in proceedings - it's not a criticism. It's just a fact he has been involved in proceedings ... - - -

WUT: That's not relevant, Deputy President, because many of them I've won.

THE D.PRESIDENT: Well, there - there's an opportunity for re-examination. The - I'm allowing the questions and - in terms of potential relevance. As I've said, we will see where they go. Yes, Mr Payne.[174]

214 WUT argued that this line of questioning was used to try to 'poison' his witnesses.[175] He objected on similar grounds to questions to his witnesses such as '[d]o you know why you are here?'[176]

215 The transcript reveals that the Deputy President considered WUT's objections and ruled on them appropriately. In some instances, they were allowed,[177] and in other instances, not.[178] The questions did not appear to diminish the support gained by WUT from the witnesses he called. In any event, it is apparent from the transcript that Witness A, who gave evidence in support of him was unaware of proceedings on foot against him. WUT had the opportunity to re-examine that witness and clarify any issues raised by Victoria Police's counsel.[179] I consider that neither the questions asked of WUT's witnesses, nor the fact that the Tribunal did not uphold particular objections denied him natural justice.

Particular 4 - Permitted inappropriate and/or unfair questions

216 WUT argued that the Tribunal permitted inappropriate and/or unfair questions to be asked of witnesses. He contended that Victoria Police's counsel tried to lead his witness, Witness A, and tried to adduce evidence that he had an 'aggravation problem'. He said that the Deputy President should have upheld his objections and stopped that questioning. The passage in the transcript reads:

WUT: Deputy President, he's - he's ...

THE D.PRESIDENT: No ...

WUT: He's referring to a different conversation. Mr ...

THE D.PRESIDENT: Well, once again, let's - I will let the questions go. We will just have questions and answer ...[180]

217 A Tribunal Member or judge will often reject an objection to questions asked in cross-examination until it reaches a point where their purpose is clear. In re-examination, the opposing party can by further questions seek to clarify answers given in cross-examination. It was well within the Deputy President's discretion to adopt that procedure.

218 WUT was given the chance to re-examine Witness A and to clarify her evidence,[181] and the Deputy President assisted him in framing his questions during re-examination.[182] I do not consider he was denied natural justice by the way in which his witnesses were cross-examined.

Particular 5 - Failed to assist WUT as a self-represented party

219 WUT submitted that the Tribunal failed to comply with the Tribunal Practice Note concerning its duty to assist self-represented parties. In his written submissions, WUT contended that the Tribunal erred by not appreciating the requirement that Victoria Police act as a model litigant. He argued that the Tribunal should have been particularly cautious when dealing with him as a disadvantaged self-represented litigant and should have strictly followed the Model Litigant Guidelines and Practice Notes.

220 WUT submitted that the Practice Note and Guidelines will be breached when evidence crucial to the outcome of the case was not presented to the Tribunal because a self-represented litigant failed to appreciate its importance.[183] He relied on authorities for the proposition that where a litigant was not fully aware of the weight that might be given to evidence, the Tribunal had an obligation to inform them to call available evidence.[184]

221 In response, Victoria Police pointed to examples of the Deputy President assisting WUT by explaining tribunal procedures and his right to call witnesses.

222 From my reading of the transcript, the Deputy President appears to have been mindful that WUT was a self-represented litigant, treated him fairly and made an effort to assist him so far as he could. I accept, as the respondent submitted, that he explained the Tribunal procedure.[185] At the directions hearing he explained the appropriate steps for WUT to take, including the time he required to file and serve his material.[186] He explained the self-incrimination provisions in the VCAT Act and, at WUT's request, made a proceedings suppression order. At the hearing, he took time to identify all the evidence that WUT had filed and wanted him to take into account,[187] again explained the procedure,[188] gave WUT latitude when questioning witnesses;[189] explained that witnesses in cross-examination could be led;[190] explained the cross-examiner's obligation of 'puttage'[191] and gave him opportunities to re-ask or reframe questions before considering objections from the respondent.[192] On occasion, he prevented the respondent's counsel interrupting WUT's witnesses when answering a question,[193] and assisted WUT in formulating a question.[194] The Deputy President also explained the process for making submissions.[195] That is not to overlook that the Deputy President did not allow WUT to make speeches when cross-examining and required him to ask questions.

223 VCAT's Fair Hearing Obligation Practice Notice includes that Tribunal Members have a responsibility to ensure that all parties receive a fair hearing. This means that Tribunal Members must ensure that each party is given a reasonable opportunity to present their case, to know the case to be advanced by the opposing party and to make submissions in opposition to that case. In the case of self-represented parties, the Member must determine the level of assistance a party may need. Whilst, in the circumstances of a particular case, a Member may be required to assist a party to identify relevant legal issues, it is not the Tribunal's role to act as that party's advocate or to provide legal advice.

224 WUT has not established that any of these steps was not taken. Nor did he establish that the respondent had breached the Victorian Model Litigant Guidelines. It is not clear how any breach of the Guidelines or counsel's breach of the Professional Conduct Rules could establish a question of law or error affecting the Deputy President's decision or order unless they also gave rise to a breach of the requirements of natural justice by him.

225 Next, WUT submitted that through its Principal Registrar, the Tribunal refused to permit him to issue a subpoena to produce documents directed to Pinner. These documents concerned an investigation into WUT in 2015.

226 At the directions hearing, the Deputy President told WUT that the Principal Registrar had refused to issue the subpoena because:

Once you make an application to review a decision, essentially, in one sense, it clears the decks. This tribunal comes to the threshold issue, as it is when this tribunal holds a hearing. That'll mean it's the evidence is available at the time of the hearing from whatever source. The tribunal can, of course, advise itself as it seems fit. That'll be on the law as it exists at the time of the hearing.[196]

227 The Deputy President explained to WUT that the Tribunal's task was not to review complaints about the 2015 investigation, but that any such complaint might be pursued in the Supreme Court.[197]

228 The Principal Registrar had a discretion whether to issue the summons[198] and no challenge to his decision has been brought in this Court. In any event, during the Tribunal hearing, WUT cross-examined Pinner and did not request him to produce any documents about the 2015 investigation.[199]

Particular 5 (g) (particular 7) and question 21 Refused to permit WUT to make a s 78 application

229 WUT in ground particular 5 (g) and question 21 alleged that the Tribunal refused to permit him to file and have determined an application under s 75 of the VCAT Act to strike out some or all of Victoria Police's evidence. In submissions, WUT said that he intended to rely on s 78, which deals with a party conducting a proceeding in a way that unnecessarily disadvantages another party.

230 WUT wished to strike out most of Victoria Police's s 49 statement because it concerned an already decided application. He said that Victoria Police seemed to argue that because he had refused a drug test after a traffic incident, he could not have truthfully signed a renewal application declaring that he did not have a mental illness. They had excluded from the s 49 statement their investigation of him and deceived the Tribunal in stating that he had continuously avoided disclosing any mental illness.[200]

231 The Deputy President did not make any finding that Victoria Police was conducting the proceeding in a way that unnecessarily disadvantaged WUT. Instead, he explained that the Tribunal did not generally strike out evidence, but rather heard the evidence and gave it appropriate weight. In so indicating the procedure that he proposed to follow, he was exercising his discretion as to how best and most efficiently to hear WUT's application.

WUT's additional natural justice and procedural fairness arguments

... one might find the tribunal is somewhat disinterested on that allegation ...[201]

233 There is no substance in WUT's criticism of the Deputy President's use of the word 'disinterested' in describing his attitude to WUT's complaints against Victoria Police. The Deputy President clearly meant that it was not his task to enquire into WUT's attacks on Victoria Police's conduct towards him, if the issues raised did not relate to the issues that he had to decide. The transcript makes that clear.[202] This contention by WUT was one of a number that challenged the Deputy President's failure to consider how Pinner made his decision. I have previously explained why that was not the Deputy President's task, but that rather he was obliged to make a new decision.

234 WUT's grounds in respect of question 19 do not raise any matter of substance. The first two concern Dr Gurtman's evidence and the fact that he was available to attend on an alternative day. I have dealt with this issue previously. I noted that Dr Gurtman had not met WUT and did not consider that his oral evidence would add much. The third ground criticises evidence advanced by the respondent including the attack on WUT's university qualifications and the admission of 'verbal', 'irrelevant' and 'on the fly evidence' concerning his character. The 'on the fly evidence' submission appears to refer to matters raised by Victoria Police in cross-examination of WUT and his witnesses, including how WUT ceased to be a Justice of the Peace. That arose because of WUT's evidence that only Victoria Police had said that he was not of fit and proper character. He also criticised the admission and acceptance of 'ludicrous claims' by Victoria Police that he had made 'unacceptable communication' when in fact he was exercising his right of freedom of expression. He also said that the Tribunal had ignored all the electronic, video, media, radio and newspaper evidence that he should have been allowed to present. These are all challenges to findings of fact. I do not consider that WUT has established that the Deputy President had erred in making these findings or that there was no evidence to support them. He had regard to all the evidence that WUT presented after having taken time during the hearing to identify all of it. In his decision, he makes clear that he also looked at material that WUT filed, but to which he did not expressly refer in the hearing.

235 I do not consider that WUT has established that he was denied his rights as a self-represented litigant. The principal task of the Tribunal when a self-represented litigant is presenting or responding to an application, is to ensure that they understand the issues, in general terms the nature of the evidence that might assist the Tribunal in considering those issues and the procedures that apply. I referred to above to the Tribunal's Fair Hearing Practice Note.

236 WUT's oral evidence was subject to cross-examination as with most witnesses and I have not accepted his arguments about the manner in which the Tribunal permitted his questioning. I do not accept that counsel for Victoria Police breached his professional obligations by the questions he asked. Leading questions are permitted, and usually asked in cross-examination. Questions as to a witness' understanding of the nature of the case in which they are called to give evidence are also routinely asked. The questioning from both sides was on occasion robust.

237 WUT did not point to any evidence that he wished to call, but was prevented from calling. He knew that Victoria Police was relying on the accountant's evidence as a result of receiving Pinner's decision. The question of whether he had been subject to an intervention order was similarly relevant. There was no dispute that he had been subject to such an order; the issue was why he had consented to it. The question of whether WUT sent the email to the Tribunal Member was relevant to the Deputy President's decision. He knew of the respondent's doubts about his university qualifications before the hearing.

238 The three hearing days in the Tribunal were each separated by a gap of eight days, during which WUT had the opportunity to consider the progress of the case and whether he wished to call further witnesses, or seek the Tribunal's assistance to do so.

239 WUT has not established that the Deputy President breached the rules of natural justice or denied him procedural fairness or failed to comply with the Tribunal's Fair Hearing Practice Note.

240 The Deputy President took into account the significantly supportive evidence from his character witnesses and the excellent services that he had provided to many people.

241 The Deputy President was not obliged to tell WUT of the weight that he might give to any particular evidence; that was a matter for him to decide at the end of the case after hearing and considering submissions.

242 A number of questions concern the Charter of Human Rights and Responsibilities Act 2006, in particular questions 22 and 27.

243 Question 22: did the Tribunal err when it did not comply with its obligation under s 98(1) or parts of the Charter that state you are innocent until proven guilty in a criminal case, misusing their jurisdiction to come to conclusions about a criminal matter in a civil appeal? The grounds are that the Deputy President stated that he believed that WUT was guilty of a criminal offence that has not yet been heard on its merits, that matter is in a different jurisdiction and an unheard criminal case and the Deputy President misused the jurisdiction to come to conclusions about a criminal matter in a civil matter.

244 Question 27 asks: did the Tribunal breach s 24 of the Charter in their obligation under ss 98 (1) and 102(1) in denying the SRL his rights under the original enactment to be fully informed and to have an opportunity to fairly defend the case against [him], and properly determine its jurisdiction to legally allow it to be conducted in the format it was? The grounds are that the Tribunal breached the fit and proper person test by ignoring and dismissing evidence of WUT's 'public interest strengths' and the evidence that there had been no complaints about his service and the evidence presented from witnesses that he was a fit and proper person.

245 Then there are WUT's grounds associated with question 10, which was not itself a Charter question, which contend that the Tribunal erred by failing to consider ss 13, right to privacy and reputation, 15, freedom of expression and 18, taking part in public life, of the Charter.

246 WUT submitted that the Tribunal refused to comply with its obligations to consider claims that the original decision maker breached the Charter and make a declaration to that effect. But I have previously explained why the Tribunal had no jurisdiction to make such a declaration. The Tribunal was under no obligation to consider claims that the original decision maker had breached the Charter.

247 WUT relied on Bell J's judgment in Goode v Common Equity Housing ('Goode').[203] That case differed because Bell J held that the Tribunal erred in deciding that as it had dismissed Ms Goode's application on the ground that Common Equity Housing had not committed any acts of prohibited discrimination, it did not have jurisdiction to consider her allegations of human rights violations.

248 Victoria Police submitted that the Tribunal was not obliged to comply with ss 13, 15 and 18 of the Charter. Alternatively, it submitted that nothing done by the Tribunal in the hearing or in the reasons for decision breached those rights.

249 The Deputy President said with respect to the Charter claims:

I do not accept that any actions by Victoria Police relevant to this proceeding cause the Charter to impact the correct and preferable decision in this case. It is sufficient to say that to the extent that human rights set out in the Charter are or were fettered by the operation of the Act, with reference to s 7 of the Charter such fettering falls within 'reasonable limits' on those rights.[204]

250 The first Charter issue was whether it applied to the proceedings in the Tribunal and that turns on the capacity in which the Deputy President was acting when determining whether WUT's licence should be renewed.[205] He was obliged to hear the renewal application afresh and make the appropriate decision on the evidence presented to him.

251 Section 38 of the Charter makes it unlawful for public authorities 'to act in a way that is incompatible with a [Charter] right or, in making a decision, to fail to give proper consideration to any relevant [Charter] right'. For the purpose of defining a public authority, s 4(1)(j) relevantly states that a public authority does not include 'a court or tribunal except when it is acting in an administrative capacity'.[206]

252 In my opinion, the Tribunal was acting in a quasi-judicial capacity and not an administrative capacity, as it was making a binding and authoritative determination of legal rights and duties according to existing legal principles.[207] The Tribunal was therefore not a public authority under s 38 of the Charter, and save as provided in s 6(2)(b), the Charter did not apply to it.

253 Notwithstanding the above finding, courts and tribunals have an obligation to apply human rights in circumstances described in s 6(2)(b) of the Charter which provides that the Charter applies to:

[C]ourts and tribunals, to the extent that they have functions under Part 2 and Division 3 of Part 3;

254 The Tribunal was therefore obliged to comply with ss 8 and 24 of the Charter, because they were functions under Part 2 and WUT had the right to be treated equally before the law and had a right to a fair hearing.[208]

255 In making submissions about question 22, WUT contended that he was treated as a criminal during the Tribunal proceeding, and that his witnesses were poisoned with leading harmful questions in breach of the Charter. These matters have been considered previously.

256 WUT submitted that the Tribunal breached s 24 of the Charter by conducting a formal trial and by not informing him of crucial evidence opportunities available to him. I have dealt with this argument in considering his natural justice grounds.

257 I do not accept that the Tribunal erred by coming to a conclusion about a criminal matter in a civil appeal. The Deputy President made a finding about whether WUT had sent the email to the Tribunal Member as a fact relevant to the two statutory questions that he had to answer - the public interest and the probity issues.

258 The Court has jurisdiction to stay a civil proceeding arising out of the same circumstances as a criminal proceeding against the defendant if there is a real prospect of substantial prejudice to the defendant in the criminal proceeding should the civil case continue. The Tribunal may decide to adjourn a matter on similar grounds. But generally, a civil proceeding must continue even if it involves the same question as the criminal proceeding, and there is no automatic right to a stay of the civil proceeding. It must be shown that there is a real risk of prejudice to the defendant.[209] But WUT did not seek to have his Tribunal application adjourned or stayed. He in essence submitted that the Deputy President should not have made a finding about an issue before him - whether WUT sent the email to the Tribunal Member. There is no legal principle supporting that submission. The Deputy President was entitled to consider that the question of the email was a significant issue.

259 So far as question 27 is concerned, I have previously concluded that WUT has not established breaches of natural justice or procedural fairness. The requirements of those principles depend on the circumstances of the case. A party, not least a self-represented litigant, must be given a reasonable opportunity to present their case in conditions that do not place them at substantial disadvantage compared to their opponent.[210] However as I have previously concluded, WUT's arguments do not establish a breach of natural justice.

260 I have also explained why WUT has not established that the Tribunal failed to comply with its obligation to assist him as a self-represented applicant to know his rights and the relevant procedures. As discussed previously in respect of WUT's question 5, the Deputy President assisted WUT in the course of the hearing. I am satisfied that WUT had a reasonable opportunity to argue his case before the Tribunal and was not placed at a substantial disadvantage to his opponent.

261 So far as WUT's reliance on s 8 of the Charter is concerned, no submission was put that established that the Tribunal failed to provide him with equality before the law. No detailed submissions were put as how the Tribunal breached the rights contained in ss 13, 15 and 18 and I am not persuaded that it did. WUT relied on his right of freedom of expression and the Deputy President made allowances for that argument, but had to determine whether the terms and language of his communications, taken with all the other evidence, led him to the conclusion that the statutory grounds for licence renewal were not satisfied.

262 Question 11 asked: did the Tribunal err by failing to take into consideration a relevant consideration, namely multiple errors of law, allowing the 'on the spot' submission of prejudicial evidence? WUT provided no grounds that related to these issues or identifying any alleged errors of law or 'on the spot' submissions of law which were not the subject of other questions.

263 The grounds to question 11, also raised the issue of whether the Tribunal erred by failing to provide proper detail or substantiation of the path of reasoning for the appellant to know and understand why the Tribunal determined that the appellant was not a 'fit and proper person' pursuant to s 25(2)(a) of the Act namely:

(a) submissions tendered by the respondent at the trial;

(b) ignoring the statutory definition of 'known information' as defined in the originating enactment in its determination of whether the appellant was a 'fit and proper person' pursuant to s 25(2)(a) of the PS Act.[211]

(c) the allowance of 'on the spot' new 'evidence' constantly inundating and railroading the appellant without notice or opportunity to defend (contradictory to an undertaking at the Directions hearing limiting the Respondent evidence, the reasons for decision given to the appellant originally, the s 46 and the s 49 statement):

1. a breach to s 97, s 98(1) and s 102 of the VCAT Act;

2. a breach to s 24 of the Charter of the Human Rights and Responsibilities Act;

3. contrary to the natural justice practice notes of VCAT;

4. contrary to the requirement of the VCAT member to assist the SRL practice notes of VCAT;

greater than the statutory evidence limitations of the original decision maker in executing the same statutory decision under the originating enactment.[212]

264 The matters raised by the grounds have been dealt with previously, but I will consider the question itself as raising the question whether the Tribunal's reasons were adequate.

265 The Tribunal is required by statute to give reasons for its orders, including where written reasons are given, findings on material questions of fact, that affected the findings or conclusions of the Tribunal.[213] The reasons must provide an 'intelligible explanation of the process of reasoning that led to the findings, and where necessary make reference to the evidence and material upon which the findings were based'.[214] The Tribunal's reasons must state its findings on key issues and why it made them and explain its path of reasoning.

266 In this matter, the Deputy President in his reasons referred to the evidence relevant to his findings and his six reasons for concluding that WUT did not have the necessary character to hold a licence and explained his path of reasoning in detail. His reasons were perfectly adequate in a case where there was much material to be considered. The reasons informed WUT why the Tribunal considered that he was not a person 'fit and proper' to hold a licence: s 25(2)(a).

267 The Deputy President analysed the evidence in detail between paragraphs [23] and [187] and [219] and [258] of his reasons. In discussing each of the six reasons for finding that WUT was not fit and proper to hold a licence, the Deputy President referred to the evidence which led him to reach each of the relevant conclusions and stated why it was persuasive. He considered the evidence which was both favourable and detrimental to WUT. He balanced these categories of evidence to reach the requisite civil standard for his decision. In doing so, he provided an 'intelligible explanation of the process of reasoning that led to the findings'.[215] The Deputy President also listed the evidence or matters which were not taken into consideration when reaching his decision; he adequately explained why that evidence was rejected. The Deputy President's reasons adequately explained his path of reasoning.

268 Question 24 asks: did the Tribunal err by making a decision that was made for an improper purpose, personally motivated, in reprimand for the appellant exercising his freedom of expression to complain and defend itself lawfully, made in bad faith, inconsistent or biased? The grounds are: that the Tribunal erred by making a decision for an improper purpose, personally motivated, made in bad faith and biased, it was used as a springboard to assist the police in their attempt at a frivolous criminal prosecution that had not even been heard and they were out of jurisdiction, frivolous PSIO which was taken in breach of the Act and used to punish him for the last 18 months without a hearing to determine jurisdiction.

269 These allegations were not developed in separate argument and have no substance.

270 The effect of the refusal to renew WUT's licence will have significant consequences for him. As he emphasised, he has not been the subject of previous complaints by clients. But his conduct, particularly in conflict situations, provided a strong basis for the Deputy President to reach the conclusions that he did. That conduct was a more significant issue than his answers on the renewal form. The Deputy President's findings were based on number of matters which he took into account in combination and weighed against the evidence of WUT's good character given by a number of witnesses. The Deputy President's findings were largely matters of fact and no legal basis has been established to challenge them. Nor do I consider that the legal arguments about the Equal Opportunity Act, natural justice or the Charter provide any real prospect of success to justify the grant of leave to appeal.

271 I am not satisfied that any of WUT's questions of law or proposed grounds establish any error by the Deputy President or have any real prospect of success. The proceeding must be dismissed.

[1] This proceeding is subject to a proceeding suppression order made under the Open Courts Act 2013.

[2] WUT v Victoria Police (Review and Regulation) [2019] VCAT 1125, [73] ('WUT v Victoria Police').

[10] Court Book, WUT v Victoria Police (Supreme Court of Victoria, Ginnane J, 10 March 2020) 635, 662 ('CB').

[11] WUT v Victoria Police (n 2) [102].

[18] Transcript of Proceeding, WUT v Victoria Police (Supreme Court of Victoria, S ECI 2019 03756, Ginnane J, 10 March 2020) 49-52 ('T').

[20] WUT v Victoria Police (n 2) [119].

[42] WUT v Victoria Police (n 2) [144].

[45] WUT v Victoria Police (n 2) [238].

[52] Ibid [149] (ellipses in original).

[54] WUT v Victoria Police (n 2) [249]-[250].

[55] Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148(1) ('VCAT Act').

[56] [1990] HCA 33; (1990) 170 CLR 321, 355-6 ('Bond') (citations omitted).

[57] Myers v Medical Practitioners Board of Victoria [2007] VSCA 163; (2007) 18 VR 48, 58 [37].

[58] Jetstar Airways Pty Ltd v Free [2008] VSC 539, [141].

[59] Hoser v Department of Sustainability and Environment [2014] VSCA 206 [29].

[62] WUT v Victoria Police (n 2) [253].

[65] ICM Agriculture Pty Ltd v Commonwealth [2009] HCA 51; (2009) 240 CLR 140, 162 [20].

[69] WUT v Victoria Police (n 2) [177]-[178].

[74] See Azadzoi v Chief Commissioner of Police [2010] VCAT 1329.

[75] See Kahan v Strauss [2017] VSC 8; Doggett v Chief Commissioner of Police [2019] VCAT 1198.

[77] WUT v Victoria Police (n 2) [235].

[79] Private Security Act 2004 s 3 (definition of 'investigator').

[80] See WUT v Victoria Police (n 2) [231].

[82] WUT v Victoria Police (n 2) [228]-[231].

[84] WUT v Victoria Police (n 2) [226].

[87] Cf Bowland v Victoria Police (Review and Regulation) [2015] VCAT 1259.

[88] See the Tribunal's approach to these issues in Azadzoi v Chief Commissioner of Police [2010] VCAT 1329, [28]-[30] and Expetito v Victoria Police [2013] VCAT 739, [14].

[89] [2014] VCAT 429.

[90] Ibid [58] citing Sobey v Commercial Agents Board [1979] 22 SASR 70, 76.

[91] See, eg, Siguenza v Secretary to the Department of Infrastructure [2002] VSC 46; Re Davis [1947] HCA 53; (1947) 75 CLR 409.

[92] Private Security Act 2004 s 1(b).

[93] WUT v Victoria Police (n 2) [228].

[95] Sinclair v Tripodis Constructions Pty Ltd [2013] VSC 722, [21].

[96] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 40 ('Peko-Wallsend').

[97] Private Security Act 2004 s 1(a)-(b).

[100] WUT v Victoria Police (n 2) [248].

[104] WUT v Victoria Police (n 2) [238].

[107] WUT v Victoria Police (n 2) [54], [240].

[109] See ibid [47]-[55], [235].

[111] WUT v Victoria Police (n 2) [152].

[114] WUT v Victoria Police (n 2) [241], [243].

[116] See WUT v Victoria Police (n 2) [122]-[144].

[120] WUT v Victoria Police (n 2) [247].

[123] WUT v Victoria Police (n 2) [146].

[124] Transcript of Proceedings, WUT v Victoria Police (Victorian Civil and Administrative Tribunal, Z783/2018, Deputy President Proctor, 12, 20, 28 March 2019) 43 [20], [30] ('VCAT T').

[126] WUT v Victoria Police (n 2) [233].

[127] WUT v Victoria Police (n 2) [39]-[45].

[133] Appellant's submissions on Exhibits A - O dated 6 April 2020 [61]; CB 429 [20]; VCAT T 383 [20].

[134] WUT v Victoria Police (n 2) [218].

[151] WUT v Victoria Police (n 2) [229]-[230].

[152] Director of Liquor Licensing v Kordister Pty Ltd [2011] VSC 207, [248].

[153] R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456, 488 (Diplock LJ).

[155] WUT v Victoria Police (n 2) [230].

[157] See the discussion in Collins v Minister for Immigration and Ethnic Affairs [1981] FCA 147; (1981) 58 FLR 407, 410-1.

[159] Victorian WorkCover Authority v AB Oxford Cold Storage Co Pty Ltd (County Court of Victoria, Nettle JA and Ashley JA, 1 September 2006) [29].See also Emrys Nekvapil, Pizer's Annotated VCAT Act (Thomson Reuters, 6th ed, 2017) 128 ('Pizer's').

[160] See, eg, Drury Medical Board of Australia [2011] VCAT 858 at [15] and other cases discussed in Pizer's (n 159) 129.

[163] WUT v Victoria Police (n 2) [229].

[164] See Kuyken v Chief Commissioner of Police [2015] VSC 204.

[166] CB 824-5 (emphasis in original).

[172] WUT v Victoria Police (n 2) [238].

[183] WUT relied on Comaz (Aust) Pty Ltd v Commissioner of State Revenue [2015] VSC 294.

[192] See CB 486 [15] (WUT's cross examination of the witness).

[197] WUT v Victoria Police (n 2) [20].

[203] [2014] VSC 585.

[204] WUT v Victoria Police (n 2) [258].

[205] CB 830; Charter of Human Rights and Responsibilities Act 2006 (Vic) s 4(1)(j) ('The Charter').

[206] The Charter s 4(1)(j).

[207] See PJB v Melbourne Health [2011] VSC 327; (2011) 39 VR 373, 404 [124] (Bell J) ('Patrick's Case').

[208] See Matsoukis v Yarra Ranges Council [2017] VSC 61, [29] and Cemina v Cannan (2018) 56 VR 480 [130].

[209] See McMahon v Gould (1982) 7 ACLR 202; Reid v Howard (1995) 184 CLR 1 and Commissioner of the Australian Federal Police v Zhao [2015] HCA 5; (2015) 255 CLR 46 and cases collected in John Arthur, Civil Procedure: Victoria, vol 1 (July 2020 update), 3444.29-3444.32.

[210] Knight v Wise [2014] VSC 76, [36] citing Ragg v Magistrates Court of Victoria [2008] VSC 1; (2008) 18 VR 300 at [45]- [51].

[211] See the definition of 'known information' in s 3 of the Act. No separate submission appears to have been put about this issue.

[213] VCAT Act s 117; Secretary to the Department of Justice v YEE [2012] VSC 447, [96] (Kyrou J) ('YEE').

[214] Dimatos v Coombe [2011] VSC 619, [20] (Beach J).See also Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480; 24 Hour Fitness Pty Ltd v W & B Investment Group Pty Ltd [2015] VSCA 216, [52].