Applicant v First Respondent

PRACTICE AND PROCEDURE - Vexatious proceedings - Court's own motion power to make general litigation restraint order - Arguable that applicant has persistently and without reasonable grounds commenced or conducted vexatious proceedings - Prothonotary directed to file originating motion seeking a general litigation restraint order against applicant - Vexatious Proceedings Act 2014 (Vic), s 29.

1 On 5 August 2018, Julian Taylor applied to the Victorian Civil and Administrative Tribunal for an order under the Equal Opportunity Act 2010 (Vic) (EO Act). He complained that his daughter's primary school had not provided him with copies of her 2015 school reports, in response to a request he had made in March 2016. At the time he made his request, Mr Taylor was on remand pending his trial on a number of criminal charges related to his registration and work as a teacher.[1]

2 The respondents to the complaint were the acting principal of the school, Sandra Bourne, and two people within the Department of Education and Training's South West Regional Office, Michael Fitzgerald and Carlo Ticchi. The State of Victoria (Department of Education and Training) was later added as a respondent. Mr Taylor complained that, by not giving him his daughter's school reports in 2016, the respondents had discriminated against him in education on the ground of his marital status, parental status or status as a carer, and gender identity. He also complained of a failure to make reasonable adjustments for a parent or carer in education, victimisation, and authorising or assisting discrimination.

3 The application was heard by Member Josephs of the Tribunal on 21 and 22 September and 15 October 2020, and the parties subsequently filed written submissions. On 5 October 2021, the Tribunal made an order dismissing the application, and published its reasons for doing so.[2]

4 In this proceeding, Mr Taylor seeks leave to appeal from the Tribunal's order of 5 October 2021. Section 148(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) provides for an appeal on a question of law from an order of the Tribunal, with leave from the Trial Division of the Supreme Court. Under s 148(2A) of the VCAT Act, I may only grant an application for leave to appeal if I am satisfied that the appeal has a real prospect of success.

5 Mr Taylor has represented himself throughout this proceeding. When he commenced the proceeding, he was detained at Melbourne Immigration Transit Accommodation in Broadmeadows. After he was deported to the United Kingdom in March 2023, he made an informal request by email for an adjournment of the trial listed on 25 May 2023. The respondents opposed this request, which was considered and refused by Keith JR on 10 May 2023.

6 Because Mr Taylor was unable to attend the trial in person, my chambers arranged for the trial to take place virtually by Zoom. Mr Taylor was included in an email sent to the parties on 22 May 2023, setting out the hearing arrangements and providing the Zoom link. He responded to that email as follows:

As I have stated previously - due to the unlawful and illegal actions of the Australian government - I am not able to attend this hearing.

Forcing the matter to occur will just result in an appeal under discrimination and racial grounds.

7 My chambers sent a further email to the parties on 24 May 2023, confirming that the hearing would take place by audio-visual link and that personal attendance was not required. It received the same reply from Mr Taylor. He did not appear at the trial on 25 May 2023, and it proceeded in his absence. Although I did not hear oral submissions from Mr Taylor, I did have his written submissions and his affidavits filed in this proceeding, which I have read and considered.

8 For the reasons that follow, leave to appeal will be refused, and the proceeding will be dismissed. I will also make an order directing the Prothonotary to apply for a general litigation restraint order in relation to Mr Taylor, under the Vexatious Proceedings Act 2014 (Vic).

9 The notice of appeal filed to commence this proceeding identified the applicant as 'CZZ' and the first respondent as 'Department of Education and Training'.

10 The name of the first respondent was amended at trial to 'State of Victoria (Department of Education)'. The amendment was made to reflect the fact that the Department has recently changed its name, and is an administrative department of the State of Victoria.

11 Mr Taylor did not seek or obtain a pseudonym order before commencing the proceeding under the pseudonym 'CZZ'. In orders made at the first directions hearing on 14 September 2022, Keith JR noted in 'Other Matters':

This proceeding has been commenced with the use of a pseudonym as used in the Tribunal. This Court will permit the proceeding to continue under a pseudonym subject to any application for an order to the contrary, or other order of the Court.

12 It is fundamental to the Australian justice system that hearings take place in open court and with no restrictions on reporting.[3] An aspect of the principle of open justice is that the identity of parties to a proceeding is not concealed, and may be publicised. While the Court has power to make a pseudonym order in an individual case, the power should only be exercised where it is necessary to prevent prejudice to the administration of justice.[4]

13 The day before the trial, my chambers sent an email to the parties, asking them to address at the hearing whether the proceeding should continue under a pseudonym, or in the applicant's name. The email noted that the material filed to date did not reveal the basis on which the proceeding was commenced under a pseudonym, and drew the parties' attention to the authority of Hunter v Australian Football League.[5]

14 As noted, Mr Taylor did not appear at the trial, and made no submissions on this question.

15 By way of context, Mr Taylor's request for his daughter's school report was made in circumstances where he had separated from her mother and his wife of 10 years. By March 2016, they were parties to a Federal Circuit Court proceeding under the Family Law Act (family law proceeding). At some stage, two interim orders made in that proceeding were placed on their daughter's file at the school.

16 The respondents were neutral as to whether the proceeding should continue under a pseudonym, but drew attention to s 121 of the Family Law Act 1975 (Cth) and to the references in the Tribunal's reasons to orders made in the family law proceedings.

17 The Tribunal's reasons identified Mr Taylor by the pseudonym CZZ, his former wife as ICC, and their daughter as YWK. I understand that this was done on the Tribunal's own motion, and not at Mr Taylor's request. The Tribunal's reasons commenced with the following note:

The Victorian Civil and Administrative Tribunal is providing these written reasons with the names of certain persons anonymised. Section 121 of the Family [Law] Act 1975 (Cth) prohibits the publication of an account of proceedings or any part of proceedings that identifies a party to those proceedings, a person related to or associated with a party to the proceedings, a person related to or associated with a party to the proceedings or a witness in the proceedings.

18 There are several references to the family law proceeding in the Tribunal's reasons, in particular to the fact that two interim orders were on the school's file, and to witnesses' understanding of the effect of the orders.

19 Pseudonym orders are commonly made in this Court in cases involving sexual offences, family violence, or children, and guardianship matters. These pseudonym orders often complement a statutory restriction on publishing information that may identify a party or someone else involved in the proceeding.[6]

20 In this case, the relevant provision is s 121 of the Family Law Act, which provides:

Restriction on publication of court proceedings

(1) A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:

(a) a party to the proceedings;

(b) a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or

(c) a witness in the proceedings;

commits an offence punishable, upon conviction by imprisonment for a period not exceeding one year.

...

(3) Without limiting the generality of subsection (1), an account of proceedings, or of any part of proceedings, referred to in that subsection shall be taken to identify a person if:

(a) it contains any particulars of:

(i) the name, title, pseudonym or alias of the person;

(ii) the address of any premises at which the person resides or works, or the locality in which any such premises are situated;

(iii) the physical description or the style of dress of the person;

(iv) any employment or occupation engaged in, profession practised or calling pursued, by the person or any official or honorary position held by the person;

(v) the relationship of the person to identified relatives of the person or the association of the person with identified friends or identified business, official or professional acquaintances of the person;

(vi) the recreational interests, or the political, philosophical or religious beliefs or interests, of the person; or

(vii) any real or personal property in which the person has an interest or with which the person is otherwise associated;

being particulars that are sufficient to identify that person to a member of the public, or to a member of the section of the public to which the account is disseminated, as the case requires;

(b) in the case of a written or televised account or an account by other electronic means - it is accompanied by a picture of the person; or

(c) in the case of a broadcast or televised account or an account by other electronic means - it is spoken in whole or in part by the person and the person's voice is sufficient to identify that person to a member of the public, or to a member of the section of the public to which the account is disseminated, as the case requires.

(4) A reference in subsection (1) or (2) to proceedings shall be construed as including a reference to proceedings commenced before the commencement of section 72 of the Family Law Amendment Act 1983.

(5) An offence against this section is an indictable offence.

(8) Proceedings for an offence against this section shall not be commenced except by, or with the written consent of, the Director of Public Prosecutions.

(9) The preceding provisions of this section do not apply to or in relation to:

(a) the communication, to persons concerned in proceedings in any court, of any pleading, transcript of evidence or other document for use in connection with those proceedings; or

court includes:

(a) an officer of a court investigating or dealing with a matter in accordance with this Act, the regulations or the Rules of Court; and

(b) a tribunal established by or under a law of the Commonwealth, of a State or of a Territory.

21 The scope of the prohibition in s 121(1) of the Family Law Act was considered in Hinchcliffe v Commissioner of Australian Federal Police,[7] in which the applicants sought orders to compel the Commissioner to investigate alleged breaches of s 121(1). In explaining why the matters alleged were not capable of amounting to an offence against s 121(1), Kenny J said that, before the provision can be contravened, 'there must be a dissemination of an account of proceedings, or part of them, under the Act' which, 'for this purpose, is a narrative, description, retelling, or recital of such proceedings'.[8] There must also be a dissemination of the account to the public or a section of the public, which involves 'widespread communication with the aim of reaching a wide audience'.[9]

22 This interpretation of s 121(1) has been adopted and applied on several occasions,[10] most recently in WEQ v Medical Board of Australia.[11] In that case, the Court of Appeal elaborated on the limited scope of s 121 of the Family Law Act:[12]

There are important limits to the scope of s 121. The section does not prohibit the disclosure of material which falls short of dissemination to at least a section of the public, which has been understood to require 'widespread communication' aimed at reaching a 'wide audience'. It also does not prohibit the dissemination of allegations aired in a Family Court proceeding which do not constitute an 'account' of those proceedings, being a narration, description, retelling or recital of something that has happened in the Family Court proceeding or something about them. It also does not prohibit the dissemination of accounts that [identify] a person who is not a participant in a Family Court proceeding, nor accounts that identify a participant other than in that person's capacity as a party, associated person or witness in a Family Court proceeding.

23 This proceeding is not a proceeding under the Family Law Act; it is an application under s 148 of the VCAT Act for leave to appeal from an order of the Tribunal made in an application under the EO Act. It is not a family law matter; it concerns a dispute between Mr Taylor and the administration of the school his daughter attended in 2016. Mr Taylor would not have published or disseminated anything about the family law proceeding by commencing this proceeding in his own name. Similarly, he has not published or disseminated anything by filing with this Court documents that identify him and his former wife as parties to the family law proceeding. The publication or dissemination to the public of an account of the family law proceeding is not to be conflated with filing documents in this proceeding, or even with those documents being made available for inspection by a non-party.[13]

24 In any event, the filing of documents in this proceeding is plainly within the exception provided in s 121(9)(a) of the Family Law Act. That exception provides that s 121 does not apply to the communication, to persons concerned in a proceeding in any court, of any document for use in connection with those proceedings.

25 For those reasons, I consider that Mr Taylor should have commenced the proceeding in his own name, and that a pseudonym order is not necessary to prevent prejudice to the administration of justice. I therefore ordered on 13 June 2023 that the name of the plaintiff in the proceeding be amended from 'CZZ' to 'Julian Taylor'.

26 A separate question is whether these reasons for judgment, which will be published on various electronic platforms after being provided to the parties, should refer to Mr Taylor by his name or by a pseudonym. Like the Tribunal's reasons, these reasons refer to the existence of the family law proceeding to which Mr Taylor was a party, and to the effect of two interim orders made in the proceeding. In my view, that limited information does not amount to an 'account' of the family law proceeding, in the sense of narrating, describing, retelling, or reciting something that happened in the proceeding. It follows that I do not consider that s 121(1) of the Family Law Act prevents the identification of Mr Taylor in these reasons when they are published.

27 For completeness, I note that these reasons do not refer to Mr Taylor's former wife or his daughter by name, and nor did the Tribunal's reasons for decision. They were not involved in the application before the Tribunal, are not parties to this proceeding, and there is no need to identify either of them.

28 After setting out the background to the application,[14] and summarising the relevant provisions of the EO Act,[15] the Tribunal gave a detailed account of the evidence given by Mr Taylor and each of the respondents' witnesses.[16] Those witnesses were:

(a) Neil Sproal, a Community Liaison Officer employed by the Department of Education and Training in the relevant area;

(b) Sandra Bourne, the Acting Principal of the school between June 2016 and January 2017;

(c) Michael Fitzgerald, Area Executive Director for the Department in the relevant area since 2016;

(d) Carlo Ticchi, who acted as Area Executive Director for a period in 2018, while Mr Fitzgerald was on leave; and

(e) Leesa Dorman, the Administration Manager at the school.

29 The Tribunal summarised the submissions of the parties,[17] and then set out its findings:

1. CZZ has expressed concern about, and significant criticism of, his 'treatment' by each of the respondents, both individually and as a group. However, while he is left with feelings of injustice, this is not what invokes the jurisdiction of the Tribunal.
2. For CZZ to succeed, he must bring himself within the 'discrete' statutory framework of the EO Act.
3. It is not in dispute that CZZ has the attributes of sex (he is a male), of marital status (he was married to ICC), and of parental status (he is the father of YWK). Despite CZZ's comments in his reply submissions, the fact of CZZ being on remand, in custody or in prison is not an attribute.
4. Although CZZ, in his application, has made a number of claims and all of which are considered in my findings, the focus is whether Ms Bourne directly discriminated against CZZ by failing to provide YWK's school report and any other requested information to CZZ as sought by him in his letter to the school in December 2016.
5. There have been inconsistencies between parties in their evidence about events, with particular reference to Ms Dorman and Ms Bourne. Ms Bourne, in her oral evidence, while confirming her witness statement, did subsequently vary occasionally in her accounts relating to some matters when compared with her statement. However, these variations were not fundamental or decisive. I regarded her as a credible witness who was rather aptly described in the respondents' closing submissions as having been 'steadfast' in giving her evidence. I did not accept CZZ's strong criticisms of Ms Bourne, either in relation to her allegedly unlawful discrimination or her giving of evidence.
6. Ms Bourne did make concessions in her evidence, including that there were issues with her recall of certain matters. However, I find this to be understandable given her very short period of tenure at the school, and her statement and evidence having been given between three and a half and four years after the events.
7. I cannot understand the basis of CZZ's scathing and inappropriate criticism of Mr Sproal's brief evidence. Mr Ticchi's evidence was credible, concise, and to the point, which accords with his actual involvement in events, the subject of CZZ's claims. There is simply no basis, given Mr Ticchi's conduct and minimal involvement, to find any liability on his part arising from any aspect of the EO Act.
8. I also found both Mr Fitzgerald and Ms Dorman to be credible witnesses, with each of them prepared to make concessions, as and when appropriate.
9. CZZ's evidence was replete with speculation. As such, what 'might have been' does not discharge his burden of proof to comfortably satisfy me on the balance of probabilities that he has made out each essential element of his claims under the EO Act. Additionally, CZZ's closing submissions were, to an appreciable extent, either not based on any evidence or contrasted with substantive evidence. They exemplified CZZ's focus on what he regarded as inconsistencies of the respondents and trying to build a case on these matters, rather than leading evidence of substance relating to the EO Act.
10. Importantly, there was no evidence about how or when either or both of the family law orders were placed on YWK's school file. This has particular relevance to the 2016 interim order of which CZZ claimed to have had no knowledge for some time after it was made. I cannot be satisfied on the evidence that both court orders were on YWK's school file in August 2016.
11. CZZ urged that adverse inferences be drawn by me against Ms Bourne from the VACRO letter of 28 November 2016 and from the unsigned letter headed 'To Whom it May Concern' dated 25 November 2016 and purportedly typed by, or for, Ms Bourne, on paper without letterhead. However, 'Glenn' did not give evidence about the authenticity and accuracy of the VACRO letter and its contents. Indeed, its date does not align with the preponderance of CZZ's evidence about his December 2016 letter. I accepted both Ms Dorman's and Ms Bourne's evidence that they did not have any knowledge of how the purported correspondence of 25 November 2016 came into existence or the reason for it. It was entirely unclear how either letter came to be on YWK's school file or why. I do not place any weight on either letter.
12. Having accepted Ms Bourne as a credible witness, I also accept that she did meet with ICC and YWK in December 2016 at the school. Relevantly, CZZ's submission that the meeting did not occur is contrary to how he approached and undertook cross-examination of Ms Bourne at the hearing.
13. I find, on the preponderance of evidence, that Ms Bourne did not discriminate against CZZ in not responding to his December 2016 letter. There is no direct evidence, nor can there be any inferences reasonably drawn by me, that her conduct and actions were due to treating CZZ unfavourably because of any attribute in section 6 of the EO Act, with particular reference to sex, parental status, or marital status.
14. Given the wording of the 2016 interim order, I also find on the preponderance of evidence that Ms Bourne did have genuine concerns, which were justifiable and reasonably based, that CZZ's parental responsibility had been removed and that, in the first instance, pending any further information that might be available, a cautious approach, as adopted, was warranted until that issue was clarified. This situation of concern was not unreasonably then exacerbated by the visit of ICC to the school and the apparent safety concerns of both her and YWK. I also accept on the preponderance of evidence that Ms Bourne did not have sufficient knowledge at that stage about whether an imminent visit to the town could have been made by CZZ.
15. I also accept that as CZZ was not a student at the school, he could not come within the provisions of section 38 of the EO Act relating to discrimination by educational authorities or of section 44 relating to discrimination in the provision of goods and services. In this regard, the respondents have also relied on the decision in Tarpey v State of Victoria - Department of Education and Early Childhood Development & Ors.[18] It relates to the Equal Opportunity Act 1995 (Vic) but its wording of the corresponding sections was the same as in the EO Act. Although the decision is not binding, I find its relevant reasoning to be persuasive.
16. I cannot find any discrimination by Mr Fitzgerald. I agree with the respondents' submissions that the bases of CZZ's allegations in this regard are speculation, unsupported on the evidence, and, even if proven, do not constitute discrimination under the EO Act.
17. Any allegations of indirect discrimination made by CZZ against Ms Bourne, Mr Fitzgerald, or Mr Ticchi were not sufficiently or fully particularised. Having said that, any practices, conditions, or requirements that could be contemplated as having been imposed were reasonable and CZZ, on the evidence, was not disadvantaged because he is a man, because of his marital status, or due to his parental status.
18. Given my findings about there having been no discrimination by Ms Bourne, allegations against Mr Fitzgerald and Mr Ticchi of authorising or assisting discrimination fall away. In any event, I accept the respondents' submissions that the allegations of CZZ on this issue do not come within the concept as defined under the EO Act.
19. I also accept the respondents' submissions, for the reasons given in closing submissions, that any claims for failure to make reasonable adjustments or victimisation must fail and they are also dismissed.

30 For those reasons, the Tribunal made an order dismissing the application.

31 Mr Taylor's notice of appeal set out eight 'questions of law', each with corresponding grounds of appeal.

Has Member Josephs made errors of fact in his assessment of the Applicant's Victorian Civil and Administrative Tribunal (VCAT) application?

33 The grounds of appeal related to Question 1 were:

(1) Member Josephs has made an error of fact by accepting as true the evidence given by Ms Bourne despite clear errors and deceptions. Ms Bourne's reference to Family Court Orders is in clear contradiction to the evidence given by Ms Dorman. Despite the contradiction on this vital point Member Josephs, at different times, accepts both propositions as true to support a point he is making.

(2) Member Josephs has made an error of fact by accepting as true the evidence given by Ms Bourne about a meeting with [ICC].[19] This was an important meeting yet there is no recording of it and, as it can't be confirmed, must be considered hearsay.

Despite the fact that the meeting cannot be confirmed, Member Josephs, based a considerable part of his decision assuming the meeting took place.

Further, the fact that the Department of Education fought so bitterly to ensure [ICC] did not give evidence of this meeting should be viewed as an attempted to hide the fact that the meeting did not take place.

A reading of the facts shows no meeting and it cannot be accepted as having to have occurred without collaborating evidence from [ICC].

Has Member Josephs made a serious legal error in his assessment of the Applicant's Victoria Civil and Administrative Tribunal (VCAT) application?

35 The grounds of appeal related to Question 2 were:

(1) Member Josephs has made a serious legal error in that he has ignored the fact that it is a legal principal as stated in the reading of the Education and Training Reform Act 2006, the Education and Training Reform Act 2006 and on Education websites that parents are legally entitled to their child's school report.

(2) It is in line with community expectations that a parent is entitled to information about their child's academic progress.

(3) To deny a parent this legal right a court must specifically state this right is denied. It is inconceivable to think of any reason why a parent would be denied, at the very least, a redacted copy of their child's academic progress.

(4) The decision to refuse the Applicant his daughter's school reports was made by a School Principal who has given inconsistent and contradictory evidence to the VCAT as to the existence of Family Court Orders yet claims her decision stated, not by her, but by the Department of Education was based on the same Family Court Orders.

(5) In addition, Ms Bourne has no legal training and did not seek a advice from the legal section of the Department of Education yet proceeded to decide on a legal principle.

Has Member Josephs failed to afford natural justice and procedural fairness in his assessment of the Applicant's Victorian Civil and Administrative Tribunal (VCAT) application?

37 The grounds of appeal related to Question 3 were:

(1) Member Josephs has failed to afford natural justice and procedural fairness in his assessment of the Applicant's Victorian Civil and Administrative Tribunal (VCAT) application.

(2) Member Joseph, as a starting point, assumed I was not entitled to my daughter's school reports. This is the wrong procedure as the starting point is that I am entitled and Ms Bourne must show that right is negated.

Has Member Josephs have failed to address and reverse jurisdictional errors committed by the Respondents and the Department of Education in his assessment of the Applicant's Victorian Civil and Administrative Tribunal (VCAT) application?

39 The grounds of appeal related to Question 4 were:

(1) Member Josephs have failed to address and reverse jurisdictional errors committed by the Respondents and the Department of Education.

(2) Ms Sandra Bourne does not hold any legal qualifications and has proceeded to make a legal decision which is clearly outside her jurisdiction as a school principal. No supporting evidence or reasons for the decision can be supplied or seem to exist.

Has Member Josephs and the VIT breached the Applicant's Human Rights as per Articles 6, 7, 8, 10 of the Universal Declaration of Human Rights?

41 The grounds of appeal related to Question 5 were:

(1) Member Josephs and the VIT have breached the Applicant's human rights as per Articles 6, 7, 8, 10 of the Universal Declaration of Human Rights.

(2) Article 6 in the Articles in the Universal Declaration of Human Rights is that, "Everyone has the right to recognition as a person before the law".

(3) Article 7 in the Articles in the Universal Declaration of Human Rights is that "All are equal before the law and are entitled without any discrimination to equal protection of the law".

(4) Article 8 in the Articles in the Universal Declaration of Human Rights is that, "Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights grounded by the constitution or by law".

(5) Article 10 in the Articles in the Universal Declaration of Human Rights is that "Everyone is entitled in full equality to a fair hearing by an independent and impartial tribunal, in the determination of his rights and obligations ...".

Has Member Josephs displayed extreme bias and prejudice in his assessment of the Applicant's Victorian Civil and Administrative Tribunal (VCAT) application?

43 The grounds of appeal related to Question 6 were:

(1) Member Josephs has displayed extreme bias and prejudice in his decision and his decision making.

(2) The Respondents have willfully and deliberately deceived the VCAT on several occasions with the intention of perverting the course of justice.

Despite clear evidence of this fact Member Josephs has ignored the deceptions and placed the Respondents in a position of trust while placing me in the reverse. By doing so Member Josephs has displayed bias and prejudice against the Applicant.

Have the Respondents willfully and deliberately deceived the VCAT on several occasions with the intention of perverting the course of justice? Further, despite being informed of this fact, has Member Josephs ignored all information detailing the same.

45 The grounds of appeal set out under the heading 'Question of Law (7)' appeared to relate to Question 8.

Has Member Josephs ignored that this case is in the public interest to be reheard?

47 The grounds of appeal that appeared to relate to Question 8 were:

(1) Member Josephs has ignored that this case is in the public interest to be reheard.

(2) Parents have the legal right to their child's school report and a school principal, acting alone without legal assessment, does not have the jurisdiction or authority to make a ruling on such a decision.

48 On 2 April 2023, Mr Taylor filed a document headed 'Notice of Proposed Orders', setting out two options:

(1) To rule Ms Sandra Bourne has, without justification, discriminated against the Applicant.

To rule Ms Sandra Bourne is to issue a written apology to the Applicant.

To issue damages in favour of the Applicant.

(2) To rule Mr Michael Fitzgerald has, without justification, discriminated against the Applicant and to issue damages in favour of the Applicant.

To rule Mr Michael Fitzgerald is to issue a written apology to the Applicant.

To issue damages in favour of the Applicant.

(3) Claims of discrimination by Mr Carlo Ticchi have been withdrawn.

(4) To rule that Member Josephs has made errors of fact against the Applicant.

(5) To rule that Member Josephs has made errors of law against the Applicant.

(6) To rule that Member Josephs has denied the Applicant natural justice and procedural fairness.

(7) To rule that Member Josephs has made judicial errors against the Applicant.

(8) To rule that Member Josephs has displayed extreme bias and prejudice against the Applicant.

or, in the alternative

Option 2

To void the VCAT hearing and send it back to the VCAT to be reheard under a different presiding member thus removing Member Josephs entirely from the hearing process.

49 As noted, an appeal from an order of the Tribunal constituted by a member requires leave of the Trial Division of this Court. Under s 148(2A) of the VCAT Act, I may only grant leave to appeal if I am satisfied that the appeal has a real prospect of success - that is, that there is a real, as opposed to fanciful, prospect of success on appeal. The applicant for leave to appeal need not demonstrate that it is likely that the appeal will succeed, only that its prospects are not fanciful.[20]

50 Even where there is a real prospect of success on appeal, leave may be refused for some other reason.[21] Relevantly here, leave may be refused where the claimed error of law could have made no difference to the order made by the Tribunal.[22]

51 The overriding consideration in determining an application for leave to appeal under s 148 is the justice of the case as it appears to the Court. That means justice to all parties, not only the applicant for leave.[23]

52 For the reasons set out in the following paragraphs, none of the proposed questions of law in the notice of appeal has a real prospect of success.

53 Question 1 is whether the member made errors of fact in his assessment of the application. This is not a question of law, but a question of fact or merit. Leave to appeal the Tribunal's findings of fact can only be granted when there is a real prospect of establishing that there was no evidence upon which the Tribunal might rationally have made those findings.[24] In this case, it was open to the Tribunal to accept Ms Bourne's evidence and to make findings of fact based on that evidence.

54 Question 2 is whether the member made a serious legal error in his assessment of the application. It is apparent from the grounds of appeal that this question is directed to Mr Taylor's arguments based on the principle in s 1.2.1(f) of the Education and Training Reform Act 2006 (Vic) (ETR Act), that a parent of a student has a right to access information about the student's achievement. This principle was not in dispute, but was only tangentially relevant. The question for the Tribunal was not whether Mr Taylor was entitled to receive his daughter's school report, but why it was not provided to him when he requested it in 2016.

55 The Tribunal noted these arguments,[25] but correctly observed that for Mr Taylor to succeed, he had to bring himself within the discrete statutory framework of the EO Act; feelings of injustice are not sufficient to invoke the Tribunal's jurisdiction.[26] The member found that Ms Bourne had genuine concerns, which were justifiable and reasonably based, that Mr Taylor's parental responsibility had been removed and so a cautious approach was warranted until that issue was clarified. He was not satisfied on the evidence that Ms Bourne's conduct and actions were because of any attribute of Mr Taylor's, in particular his sex, parental status, or marital status. These findings were well open on the evidence before the Tribunal. The 'question of law' identified in Question 2 is beside the point; it was unnecessary for the Tribunal to determine whether the respondents had complied with principle 1.2.1(f) of the ETR Act.[27]

56 Question 3 asks whether the member failed to afford natural justice and procedural fairness in his assessment of the application. The related grounds of appeal assert that the member assumed that Mr Taylor was not entitled to his daughter's school reports. Mr Taylor's written submissions and supporting affidavits do not identify any basis for that assertion, either in the Tribunal's reasons or in the transcript of the hearing. No such assumption appears in the Tribunal's reasons, in which the member correctly focused on the key question of why Mr Taylor was not provided with his daughter's school report when he asked for it in 2016.

57 There is no merit to the claim that the Tribunal did not afford natural justice to Mr Taylor. The transcript of the hearing compels the opposite conclusion. The application was heard over three days, during which Mr Taylor had every opportunity to present evidence, question the respondents' witnesses, and make submissions. Although his evidence and questioning were not always relevant, the Tribunal heard him respectfully and with remarkable patience.

58 Question 4 is whether the member failed to address and reverse jurisdictional errors committed by the respondents and the Department in assessing the application. This question entirely misconceives the Tribunal's function in hearing and deciding an application under the EO Act, which invokes the Tribunal's original jurisdiction.[28] The Tribunal does not have a judicial review jurisdiction, and it is no part of its function to identify or correct jurisdictional error.[29]

59 Question 5 asks whether the member and the Victorian Institute of Teaching breached Mr Taylor's human rights, specifically articles 6, 7, 8 and 10 of the Universal Declaration of Human Rights. Those articles relate to recognition and equality before the law, effective remedies, and fair hearings. The Universal Declaration of Human Rights is a resolution of the United Nations General Assembly that does not of itself give rise to domestic legal rights and obligations. However, many of the human rights recognised by the Universal Declaration are protected in Victoria by the Charter of Human Rights and Responsibilities Act 2006 (Vic), including the right to recognition and equality before the law, and the right to a fair hearing.[30] It is arguable that these rights apply directly to the Tribunal when it is exercising original jurisdiction under the EO Act.[31]

60 However, Question 5 is not particularised in the notice of appeal, and it is unclear from his written submissions and affidavits how or in what way Mr Taylor says that his rights to recognition and equality before the law and to a fair hearing were breached. Obviously, Mr Taylor was recognised by the Tribunal and was able to prosecute his complaint of discrimination under the EO Act. I have reviewed the transcript of the hearing, and it appears to me that Mr Taylor received a scrupulously fair hearing - indeed, he was heard on a range of matters well beyond the claims made in his application. He did not make out his case and so was not entitled to any remedy. In my view this question has no prospects of success.

61 The Victorian Institute of Teaching was not involved in the proceeding before the Tribunal and the reference to it in Question 5 is gratuitous.

62 Question 6 is whether the member displayed extreme bias and prejudice in his assessment of the application. This question is not particularised in the notice of appeal and Mr Taylor made no submissions in support of it. There is no discernible basis to suggest that the member was actually biased, or that his conduct of the hearing gave rise to a reasonable apprehension of bias. The mere fact that the Tribunal dismissed the application does not give rise to an apprehension of bias.

63 Question 7 asks whether the respondents wilfully and deliberately deceived the Tribunal, with the intention of perverting the course of justice, and whether the member ignored information that they had done so. Again, this question was not particularised, or supported by evidence or argument. The Tribunal considered and rejected Mr Taylor's criticisms of the respondents' witnesses, in particular Ms Bourne, and gave reasons why it found them to be credible and accepted their evidence. Those conclusions were open to the Tribunal on the material before it. There is no real prospect of this question succeeding on appeal.

64 Question 8 is whether the member ignored that the case is in the public interest to be reheard. It is unclear what rehearing Mr Taylor says should have occurred, beyond the three days that the Tribunal spent hearing his application. The Tribunal was not reviewing the respondents' response to Mr Taylor's request for his daughter's report; it was hearing a complaint of discrimination under the EO Act. This question does not raise any arguable question of law.

65 Because I do not consider that there is a real prospect of success in relation to any of the questions of law set out in the notice of appeal, I cannot grant leave to appeal.

66 I would have refused leave in any event, because none of the claimed errors that Mr Taylor seeks to agitate on appeal could have made any difference to the Tribunal's order dismissing his application. Mr Taylor's proposed questions of law and grounds of appeal do not address and could not overcome the Tribunal's findings that:

(a) he could not come within the provisions of s 38 of the EO Act relating to discrimination in education by educational authorities, or s 44 relating to discrimination in the provision of goods and services;[32] and

(b) his claims for failure to make reasonable adjustments and victimisation must fail.[33]

Those findings were fatal to the claim of unlawful discrimination.

67 To explain, the Tribunal can only make an order under s 125 of the EO Act if it finds that a person has contravened a provision of Pts 4, 6 or 7 of the EO Act. It has no power to grant remedies in relation to discrimination at large. Part 4 of the EO Act sets out prohibitions on discrimination in a range of areas. The relevant areas in this case are in Div 3 of Pt 4, concerning discrimination in education, and possibly also in Div 4 of Pt 4, concerning discrimination in the provision of goods and services. Part 6 prohibits sexual harassment and is not relevant here. Part 7 prohibits victimisation, authorising or assisting discrimination, and discriminatory requests for information.

68 Mr Taylor's application claimed that he had been discriminated against in the area of education, that there had been a failure to make reasonable adjustments for him as a parent or carer in the area of education, and that he had been victimised. He also made a claim that one or more of the respondents had authorised or assisted discrimination, which could only have succeeded if he established that another person had contravened a provision of Pt 4 of the EO Act.

69 In their closing submissions, the respondents submitted to the Tribunal that:

(a) Mr Taylor's allegations did not fall within any of the situations conceived by Div 3 of Pt 4 of the EO Act, because he was not a student of the school;

(b) He had not advanced any argument that he had been the recipient of goods or services provided by the respondents, so as to arguably bring his application within Div 4 of Pt 4 of the EO Act; and

(c) Mr Taylor had not pursued his claims of failure to make reasonable adjustments for him as a parent or carer in the area of education or victimisation, and there was no evidence to support either claim.

70 Mr Taylor's submissions in reply did not engage with or respond to any of these arguments, which the Tribunal accepted in the findings at [161] and [165] of its reasons. The effect of those findings was that there could be no contravention of Pts 4 or 7 of the EO Act, regardless of why the respondents did not provide Mr Taylor with his daughter's school report. There is no proposed ground of appeal that might disturb either finding. Even if Mr Taylor could show some error of law in the Tribunal's findings of fact, he would be unable to establish any contravention of Pts 4 or 7 for which he might obtain a remedy under the EO Act. In those circumstances, leave to appeal must be refused.

71 Mr Taylor has an extensive litigation history, during which he has enjoyed no success. Leaving aside his criminal matters[34] and his recently concluded migration proceedings,[35] Mr Taylor has pursued the following litigation through this Court:

(a) In proceeding S ECI 2020 03014, Mr Taylor sought an order compelling the Minister for Education to investigate the fitness to teach of his former wife, and an order compelling the Minister to investigate Mr Taylor's claims of discrimination and victimisation against his ex-wife and a compliance officer of the Victorian Institute of Teaching. Alternatively, he sought a direction that the Minister give reasons for not conducting those investigations. I summarily dismissed that proceeding, for the reasons given in Taylor v Minister for Education [2021] VSC 23. Mr Taylor withdrew his appeal to the Court of Appeal, after his application for an adjournment was refused.[36]

(b) In proceeding S ECI 2020 04291, Mr Taylor sought judicial review of the Attorney-General's refusal to consider or make a decision on Mr Taylor's petition for mercy. The proceeding was summarily dismissed by Matthews AsJ on 27 January 2022, on the basis that it had no real prospect of success.

(c) In proceeding S ECI 2020 03043, Mr Taylor brought a judicial review proceeding against the Victorian Institute of Teaching four and a half years out of time. Justice Ginnane refused an extension of time and dismissed the proceeding, for the reasons given in Taylor v Victorian Institute of Teaching (No 1 - The Judicial Review Proceeding) [2022] VSC 184. Leave to appeal to the Court of Appeal was refused.[37]

(d) In proceeding S ECI 2020 04794, Mr Taylor sought leave to appeal from orders of the Tribunal made on 3 December 2020, refusing his application for an extension of time to commence a proceeding to review a decision of the Victorian Institute of Teaching made on 31 August 2015, and striking out his application. Justice Ginnane dismissed the application for leave to appeal, holding that there was no real prospect of any of Mr Taylor's questions of law succeeding, and no prospect that he would succeed in his Tribunal proceeding if an extension of time were granted. His Honour's reasons are found in Taylor v Victorian Institute of Teaching (No 2 - The VCAT Appeal Proceeding) [2022] VSC 185. The Court of Appeal recently refused leave to appeal from this decision.[38]

72 Mr Taylor has at least two other proceedings pending in this Court.

73 In proceeding S ECI 2022 01254, Mr Taylor seeks judicial review remedies in respect of the Attorney-General's decision of 30 April 2021, to refuse Mr Taylor's application for a petition of mercy. As the proceeding was commenced nine months out of time, an application for an extension of time is listed for hearing on 21 June 2023.

74 In proceeding S ECI 2022 03805, Mr Taylor seeks leave to appeal from an order of the Tribunal made on 1 August 2022, summarily dismissing his application under the EO Act against Tribunal members Reynah Tang and Paul Gysslink. In that application, Mr Taylor appears to have claimed that the Tribunal's decision in Taylor v Victorian Institute of Teaching (Review and Regulation) [2020] VCAT 1359 constituted victimisation and discrimination in breach of the EO Act. Mr Taylor's application for leave to appeal, as well as his summonses seeking summary dismissal of the respondents' 'defence', were heard by Matthews J on 14 June 2023. Her Honour's decision is reserved.

75 Also pending in this Court is proceeding S ECI 2021 04357, an application for leave to appeal from the Tribunal's orders and decision in CZZ v Bailey (Human Rights) [2021] VCAT 1238. The facts in that case are strikingly similar to this one. The Tribunal summarily dismissed an application under the EO Act by 'CZZ' claiming discrimination against him as a father of a student, in the area of education, because he had been refused a copy of his daughter's school report. On 9 December 2022, Matthews AsJ dismissed the application under r 4.08(8) of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic), on the basis that Mr Taylor had no arguable case on appeal. He has appealed that decision, which is listed for directions on 21 June 2023.

76 In light of this litigation history, there appears to me to be an arguable case that Mr Taylor has persistently and without reasonable grounds commenced or conducted vexatious proceedings, within the meaning of the Vexatious Proceedings Act. In those circumstances, the Court has power, on its own motion, to make a general litigation restraint order against a person under s 29 of the Vexatious Proceedings Act.

77 Before such an order could be made, Mr Taylor would have to be heard, or given an opportunity to be heard, as required by s 45 of the Vexatious Proceedings Act. The Court's rules do not prescribe a procedure for the Court to consider whether to make a litigation restraint order on its own motion.[39] In the absence of any express rule, I consider that an appropriate way to proceed is to direct the Prothonotary to file an originating motion seeking a general litigation restraint order against Mr Taylor.[40]

78 I will make orders refusing leave to appeal and dismissing the proceeding. I will also direct the Prothonotary to initiate a proceeding for a general litigation restraint order against Mr Taylor. I will hear the parties on the question of costs.

[1] The background to and disposition of those charges is set out in Taylor v The Queen [2019] VSCA 162; (2019) 59 VR 163. An application for special leave to appeal from this decision was refused on 9 September 2021: Taylor v The Queen [2021] HCASL 180.

[2] CZZ v Department of Education and Training (Human Rights) [2021] VCAT 1146 (Reasons).

[3] WEQ v Medical Board of Australia [2021] VSCA 343, [59] (WEQ).

[4] Hunter v Australian Football League [2015] VSC 112, [10]-[12], citing ABC v D1 & Ors, ex parte Herald Sun & Weekly Times Limited [2007] VSC 480.

[5] [2015] VSC 112.

[6] Eg, Judicial Proceedings Reports Act 1958 (Vic), s 4 (a person who has been a victim of a sexual offence); Family Violence Protection Act 2008 (Vic), s 166 (a person involved in a proceeding under the Act); Children, Youth and Families Act 2005 (Vic), s 534 (a child or other party to a proceeding in the Children's Court, or a witness in the proceeding); Victorian Civil and Administrative Tribunal Act 1998 (Vic), Sch 1, cl 37 (a party to a proceeding under the Guardianship and Administration Act 2019 (Vic)).

[7] [2001] FCA 1747; (2001) 118 FCR 308 (Hinchcliffe).

[8] Hinchcliffe, [53] (emphasis in original).

[9] Hinchcliffe, [54], quoting Re Edelsten; Ex parte Donnelly (1988) 18 FCR 434, 436.

[10] Eg, CFB18 v Reader Lawyers & Mediators [2018] FCA 611, [1]; CHZ19 v Minister for Home Affairs [2019] FCA 914, [145]. See also, in relation to s 26(1) of the Children and Young Persons Act 1989 (Vic), Howe v Harvey [2008] VSCA 181; (2008) 20 VR 638, [101].

[11] [2021] VSCA 343, (WEQ).

[12] WEQ, [76] (footnotes omitted).

[13] Porch v State of Victoria [2023] VSC 61, [20]-[22].

[18] [2009] VCAT 410, [18].

[19] ICC was the pseudonym used by the Tribunal to refer to the applicant's ex-wife.

[20] Note Printing Australia Ltd v Leckenby [2015] VSCA 105; (2015) 50 VR 44, [82] (Tate JA, Whelan and Ferguson JJA agreeing), applying Kennedy v Shire of Campaspe [2015] VSCA 47, [11]-[14].

[21] Metricon Homes Pty Ltd v Softley [2016] VSCA 60; (2016) 49 VR 746, [29] (Warren CJ, Tate JA and Robson AJA agreeing).

[22] Forster v Legal Services Board [2013] VSCA 73; (2013) 40 VR 587, [137] (Kyrou AJA, Weinberg and Harper JJA agreeing).

[23] Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331, [16].

[24] Kyriackou v Law Institute of Victoria [2014] VSCA 322, [14]; Maund v Racing Victoria Ltd [2016] VSCA 132, [67]-[69].

[25] Reasons, [23](f), (p); [98]-[104].

[27] In addition, I note that s 1.2.3 of the Education and Training Reform Act 2006 (Vic) provides that nothing in s 1.2.1 gives rise to, or can be taken into account in, any civil cause of action.

[29] Director of Housing v Sudi [2011] VSCA 266; (2011) 33 VR 559, [15]-[21] (Warren CJ).

[30] Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 8, 24.

[31] Matsoukatidou v Yarra Ranges Council [2017] VSC 61; (2017) 51 VR 624, [45]-[46].

[34] Taylor v The Queen [2019] VSCA 162; (2019) 59 VR 163; Taylor v The Queen [2021] HCASL 180.

[35] Taylor and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 19; Taylor v Minister for Home Affairs [2022] FCA 309; Taylor v Minister for Home Affairs (No 2) [2022] FCA 401; Taylor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 144; Taylor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCASL 210.

[36] Taylor v Merlino [2022] VSCA 37.

[37] Taylor v Victorian Institute of Teaching [2023] VSCA 119.

[38] Taylor v Victorian Institute of Teaching [2023] VSCA 119.

[39] Order 83 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) provides for applications for leave to proceed, where a litigation restraint order has been made, but does not deal with applications for a litigation restraint order.

[40] By analogy with r 75.07(1) of the Rules, which provides that the Court may, by order, direct the Prothonotary to apply by summons or originating motion for punishment of the contempt.