Applicant v First Respondent

2 The Applicant relies on his affidavits affirmed 14 September 2022, 28 November 2022, 13 December 2022, 4 January 2023 (two affidavits affirmed that day), 2 February 2023, 10 May 2023 and 22 May 2023.

3 The Respondents rely on an affidavit of Veronica Belot sworn 23 January 2023 ('Belot Affidavit'). Ms Belot is a managing principal solicitor at the Victorian Government Solicitor's Office ('VGSO'), the solicitors for the Respondents, and has carriage of this proceeding.[1]

4 The Applicant also relies on his written submissions dated 15 December 2022 and filed 16 December 2022 ('Applicant's Written Outline').

5 The Respondents rely on their written submissions dated and filed 20 January 2023 ('Respondents' Written Outline').

6 In addition to the Leave Application, there are three extant summonses filed by the Applicant, two of which were before the Court on 14 June 2023. I will come to these later, it being convenient to deal with the Leave Application first.

7 For the reasons which follow, the Leave Application will be dismissed. That being the case, the proceeding is concluded and the interlocutory applications made by the three summonses just referred to therefore fall away. If it is necessary or desirable to do so for the sake of clarity, then I will also make orders dismissing each of those summonses.

Relevant factual background regarding the subject matter of this proceeding

8 On 31 August 2015, a panel convened by the Victorian Institute of Teaching ('VIT') made a decision to cancel the Applicant's registration as a teacher ('VIT Decision').

9 On 24 September 2019, the Applicant applied to the Tribunal for review of the VIT Decision ('Review Proceeding').

10 On 3 December 2020, the Tribunal, constituted by the Respondents, refused to extend time to allow the Applicant to commence the Review Proceeding and published extensive reasons in this regard ('Respondents' Decision'). An extension of time was required as the application for review was filed well outside the statutory timeframe.

11 On 2 December 2021, the Applicant filed an application in the Tribunal against the Respondents ('VCAT Application'), which:

(a) stated the type of application as 'An order under the Equal Opportunity Act 2010';

(b) listed the type of conduct that had occurred as 'VictimisationOther';

(c) detailed the relevant incident as '[a]buse of power, targeted victimisation, deception and fraud in an VCAT decision'; and

(d) sought '[r]eversal of the said behaviour and decision'.

12 On 13 December 2021, Deputy President Nihill made an order proposing to dismiss the VCAT Application under s 75 of the VCAT Act, unless the Applicant reasonably objected by 7 January 2022 ('13 December Order'). This was stated to be on the following basis:

The Tribunal proposes to dismiss this application under section 75 of the Victorian Civil and Administrative Tribunal Act 1998, because it is outside VCAT's jurisdiction under the Equal Opportunity Act 2010 to review an order made by the Tribunal. Any such review is a matter for appeal to the Supreme Court of Victoria.

13 On 1 August 2022, Deputy President Nihill made the Order dismissing the VCAT Application under s 75 of the VCAT Act on the basis that it was misconceived. The Order and Accompanying Reasons stated:

ORDER

Further to orders made on 13 December 2021, the application is dismissed under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 on the basis that it is misconceived.

The Tribunal makes this order because:

1. The applicant has applied alleging victimisation by Members of the Tribunal apparently because of a decision or order made by those Members in their capacity as Members of the Tribunal.
2. The Tribunal only has the powers given to it by statute. Its jurisdiction derives entirely from statute.
3. The Tribunal does not have jurisdiction under the Equal Opportunity Act 2010 or any other statute to review on its merits a decision or order made by a Member of the Tribunal. Any such review is a matter for the Supreme Court of Victoria.
4. In orders made on 13 December 2021, I indicated that I would conduct this proceeding on the basis of documents, without the appearance of parties, under section 100(2) and 100(3) of the _Victorian Civil and Administrative Tribunal Act 199_8 unless the application [sic] objected to the proceeding being conducted in this matter, and the objection was reasonable. The applicant made no objection.

14 On 14 April 2022, Ginnane J dismissed two (related) proceedings brought by the Applicant in this Court, through which he sought:

(a) an extension of time to bring judicial review proceedings challenging the VIT Decision;[2] and

(b) leave to appeal the Respondents' Decision under s 148 of the VCAT Act.[3]

15 As noted above, the Applicant commenced this proceeding on 18 August 2022, in which he seeks leave to appeal the Order under s 148 of the VCAT Act.

16 On 23 November 2022, Judicial Registrar Keith made orders including the following:

(a) the Leave Application be listed for hearing on a date to be fixed, not before 8 February 2023, with an estimate of half a day;

(b) by 21 December 2022, the Applicant file and serve any affidavits on which he intends to rely, written outline of submissions of no more than 10 pages, and a list of authorities;

(c) by 25 January 2023, the Respondents file and serve any affidavits on which they intend to rely, written outline of submissions of no more than 10 pages, serve a list of authorities; and

(d) by 1 February 2023, the Respondents file and serve a book of combined authorities and an application book containing the documents filed in the proceeding.

17 The parties complied with these orders. Subsequent to the making of these orders, the Leave Application was listed for hearing on 1 May 2023 before Barrett AsJ.

18 On 2 February 2023, the Applicant filed a summons ('2 February Summons') applying:

for the Court to examine, investigate and grant summary dismissal of the defence by the First Respondent, Mr Reynah Tang, and thus the Second Respondent, Mr Paul Gysslink, pursuant to Section 61 of the Civil Procedure Act 2010 (Vic), on the ground that the Respondents' defence or part of that defence has no real prospect of success.

19 On 3 February 2023, the Applicant filed another summons ('3 February Summons') applying:

for the Court to examine, investigate and rule as to whether the legal representation of the respondents represents a conflict of interest and is inherently unfair to the plaintiff.

20 Both of these summonses were listed for directions on 22 February 2023. On that date, Judicial Registrar Baker made orders ('22 February Orders') including that:

(a) the 2 February Summons be listed for hearing on 1 May 2023, together with the Leave Application;

(b) in respect of the 2 February Summons:

(i) the Applicant was to file and serve any affidavits, an outline of submissions of no more than 10 pages and a list of authorities by 15 March 2023;

(ii) the Respondents were to file and serve any affidavits, an outline of submissions of no more than 10 pages and a list of authorities (plus electronic copies) by 5 April 2023; and

(iii) the Respondents were to file and serve any supplementary application book by 21 April 2023.

(c) the 3 February Summons was to be listed for directions on a date to be fixed by the Court after the determination of the applications to be heard in this proceeding on 1 May 2023.

21 The parties complied with these orders, save that the Applicant did not file an outline of submissions or a list of authorities in respect of the 2 February Summons.

22 On 11 March 2023, the Applicant filed a third summons ('11 March Summons') applying:

for the Court to examine, investigate and grant summary dismissal of the defence by the First Respondent, Mr Reynah Tang, and thus the Second Respondent, Mr Paul Gysslink, pursuant to Section 61 of the Civil Procedure Act 2010 (Vic), on the ground that the Victorian Institute of Teaching is a legal fiction and is thus unable to conduct legal proceedings.

23 The 11 March Summons was listed for directions before Barrett AsJ on 1 May 2023.

24 On 5 May 2023, Barrett AsJ adjourned the hearing listed for 1 May 2023 to 14 June 2023 at 9.30am before himself. In 'other matters', his Honour noted that by email dated 13 April 2023 to the Court the Applicant had sought an adjournment of at least six weeks, and that by email dated 28 April 2023 the Respondents informed the Court that they did not object to this request.

25 On 7 June 2023, the parties were informed that I would be hearing the applications listed in this proceeding for 14 June 2023.

26 The hearing on 14 June 2023 commenced via Zoom at 9.30am. The Applicant appeared in person via Zoom and the Respondents' counsel appeared via Zoom.

27 At the commencement of the hearing, I indicated to the parties that as far as I was aware, the Leave Application and the 2 February Summons were listed for hearing and the 11 March Summons for directions, and that I was also aware of the 3 February Summons. When asked to confirm that this was his understanding of the matters before me at the hearing, the Applicant stated that there was a preliminary issue he wanted to deal with. He then proceeded to submit that I should stand down and not hear these matters as I was prejudiced against him.

28 I sought clarification from the Applicant that he was making an oral application that I recuse myself, which he stated was the case and he made some further submissions in respect of this issue. I asked the Applicant if he wished to add anything in support of the recusal application, to which he responded by saying 'just this' before appearing to turn off his computer. He was no longer present at the Zoom hearing. I then asked the Respondents' counsel for any response to the recusal application. After hearing those submissions, I stated that I would not be recusing myself as I did not see any basis for me to do so, and that I was going to stand down for 5 minutes so that my Associate could inform the Applicant that the hearing was going to proceed at 9.45am. That was done.

29 The hearing resumed at 9.45am and the Applicant did not rejoin the hearing. I then proceeded to hear oral submissions from the Respondents in respect of the Leave Application, following which I reserved my decision.

30 At the hearing, I did not give reasons for refusing the recusal application. I have included my reasons for refusing the recusal application in these reasons.

31 The Applicant referred to a separate case he was involved in that I had recently dealt with, being a proceeding he had commenced in this Court for leave to appeal the Tribunal's orders and decision in a case he had against a Mr Bailey.

32 I interpose here to briefly explain that proceeding. Named under the pseudonym CZZ in that proceeding, the Applicant sought leave to appeal the decision of the Tribunal in CZZ v Bailey (Human Rights)[4] to summarily dismiss his application under the Equal Opportunity Act 2010 ('Equal Opportunity Act') claiming discrimination against him as a father of a student, as he had been refused a copy of his daughter's school report. On 9 December 2022, I heard and determined an application under r 4.08(8) of the Supreme Court (General Civil Proceedings) Rules 2018 (Vic) to dismiss the Applicant's application for leave to appeal CZZ v Bailey. I dismissed the Applicant's leave application on the basis that he had no arguable case on appeal.

33 Having mentioned that proceeding, the Applicant went on to say that he had made a complaint about my conduct and that he did not believe I should hear the matters listed before me on 14 June 2023. I indicated that I knew the case he was referring to but that I did not know of a complaint. The Applicant then stated:

Well, I can tell you right now, Your Honour, there was a complaint made - a very strong complaint made. You were bias, prejudice on that date, and I do not believe that you should hear this matter today because of your bias, prejudice displayed in that matter. In fact, I think you should remove yourself from the matter completely.[5]

If you refuse to do so, I shall turn off the video right now and they can settle the complaint. You were bias and prejudice against me that day, we had a - a verbal argument. You were extremely rude to me. You were prejudice towards me, you were bias against me. I think you need to remove yourself from this matter, because of the strong complaint lodged against you and clearly I have no confidence in your ability to deal with this matter. I think you need to step down from this matter.[6]

...

You step down, because I have already made a very strong verbal - very strong written complaint about you, about your behaviour on that day. I have no confidence that you will deal with this matter with a fair hearing, and you are to remove yourself.

You must stand down, because there is a complaint lodged against you that clearly, would be plainly in mind, and what we seek there is (indistinct) grounds there if I've made a very strong complaint about you for bias prejudice, and you will seek - I - I believe displayed, by your displaying in that previous matter, that you will seek retribution in this matter. You must stand down. You must stand down. You must stand down, Ms - Your Honour, you must stand down.[7]

...

You must stand down because you have bias and prejudice against me. We had a verbal argument. I walked out of your court last time because you were so discriminatory against me. You must stand down.[8]

35 I then asked whether, apart from repeating that I must stand down, the Applicant had anything else he wished to say in support of the recusal application. He replied 'Yeah. This'. At that point, the Applicant stood up and either left the Zoom hearing or turned off his camera and microphone. I subsequently ascertained that he had left the hearing after making that statement.

36 I indicated that the Court had not had any notice of this recusal application and asked the Respondents' counsel if they had been given notice of it, which he confirmed they had not. I then asked the Respondents' counsel if they wished to make any submissions about it.

37 The Respondents submitted that they did not consent to the recusal application, noting that there had been adequate time for the Applicant to put on material if he felt there was a basis for it.

38 The Respondents submitted that the Applicant seemed to be alleging actual bias and that there is a very high threshold which needs to be met. The Respondents say that an allegation of that nature needs to be made properly, in that it needs to be specific and supported by relevant and admissible evidence. They say that there is nothing they have seen which would support an allegation of actual bias. If it is an allegation of apprehended bias, then the Respondents say that the Applicant's view is not relevant, regardless of how strongly held it might be. The Respondents submitted that the test is whether a fair-minded lay observer would think that I might not bring an open mind to the resolution of the matter. They say that there is simply nothing they are aware of that would cause a fair-minded lay observer to have that apprehension. The Respondents say that the Applicant alluded to what might have been some robust exchange between him and the bench and stated that it is not sufficient to found an apprehension of bias.

39 The Respondents submitted that the Court should be cautious in acting on the basis of what the Applicant said was a complaint that he had made, as that invites the opportunity for forum shopping. They say that a complaint made by a disappointed litigant is an inadequate basis for a judicial officer to recuse themselves, because of the public policy imperative of ensuring that the test remains an objective one. The Respondents also say that a litigant cannot avail themselves of a mechanism for complaints in order to have their matter determined by a particular judicial officer.

40 The Respondents' counsel concluded that they certainly do not consent to the recusal application and that, while he did not have instructions, he expects the Respondents would be prepared to oppose it given they are ready for the hearing to proceed today and have had no notice of the recusal application.

General principles applicable to the recusal application

41 To the extent that actual bias is relied upon, the person alleging it must establish that there is bias in fact.

42 In Reid v Commercial Club (Albury) Ltd,[9] the NSW Court of Appeal stated that:

A finding of actual bias is a grave matter. Authority requires that an allegation of bias must be distinctly made and clearly proved; that such a finding should not be made lightly; and that cogent evidence is required.[10]

43 To the extent that apprehended bias is relied upon, the objective test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.[11] That principle gives effect to the requirement that justice should both be done and be seen to be done.[12] The principle for apprehended bias was stated in Ebner, as follows:

Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.

...

Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an 'interest' in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.[13]

44 Mahoney JA in Australian National Industries Ltd v Spedley Securities Ltd (in liq) stated that, subject to qualifications and exceptions, there are four matters to consider regarding to the prejudgment principle:[14]

(a) the disqualification of a judge for apprehended pre-judgment depends on form rather than substance;

(b) whether there is an unacceptable appearance of pre-judgment is to be decided, not according to likelihood, but according to possibility;

(c) the case is to be judged, not according to what the court and the parties know, but according to the impressions of a lay person who does not know the facts; and

(d) there will be an unacceptable appearance of pre-judgment if the judge has previously dealt with the issue of fact or credibility which is before him in the instant case.

45 A judge should not automatically disqualify herself at the request of a party, as that would be an abdication of judicial function. [15] In this regard, there is a duty for a judge to hear a case in which there is no proper reason for disqualification.[16] The administration of justice depends upon the proposition that parties ought not be able to pick and choose the judges who sit on any particular case. [17]

46 The Applicant's recusal application consisted of nothing more than an accusation that I had been biased and prejudiced towards him and that I had discriminated against him. He did not descend into specifics at all: he gave no explanation of how it is said that I had been biased, prejudiced or discriminatory. He referred to a 'verbal argument' he says he had with me, but again does not say what that was.

47 It seems to me that these accusations fall into the category of an allegation of actual bias.

48 The allegation is vague and has not been 'distinctly made', to use the language of the NSW Court of Appeal in Reid.

49 There has been no evidence adduced, let alone cogent evidence, to support such an allegation and there is therefore no foundation or proper basis upon which I can or should recuse myself for actual bias.

50 It seems to me that the Applicant's submission that as he had made a complaint about me, a complaint which he says would be in my mind and for which I may seek retribution against him, is possibly more an apprehended bias allegation rather than an actual bias allegation. If it was an allegation of actual bias, then it fails for the same reason as stated in the previous paragraph.

51 To the extent that it is an allegation of apprehended bias, there is simply nothing before the Court which could meet the objective test required. The broad allegations made by the Applicant are not likely to be seen by the fair-minded lay observer as allegations of impropriety which might reasonably give rise to an apprehension that I might not decide this case impartially and without prejudice. The Applicant made no attempt to address why it should be assumed that I would put aside my judicial training and my oath to decide cases without fear, favour, affection or ill-will. As stated by Brereton J in British American Tobacco Australia Ltd v Gordon:

a judge is a professional who by training, tradition and oath is required to discard irrelevant, immaterial and prejudicial material and can ordinarily be assumed to comply with the judicial oath.[18]

52 As already noted, I refused the recusal application as I saw no proper basis to grant it.

53 Section 148 of the VCAT Act relevantly provides as follows:

(1) A party to a proceeding may appeal, on a question of law, from an order of the Tribunal in the proceeding -

(a) to the Court of Appeal, if the Tribunal was constituted for the purpose of making the order by the President or a Vice President, whether with or without others; or

(b) to the Trial Division of the Supreme Court in any other case -

if the Court of Appeal or the Trial Division, as the case requires, gives leave to appeal.

(2) An application for leave to appeal must be made -

(a) no later than 28 days after the day of the order of the Tribunal; and

(b) in accordance with the rules of the Supreme Court.

(2A) The Trial Division of the Supreme Court may grant an application for leave to appeal under this section only if it is satisfied that the appeal has a real prospect of success.

54 In Kennedy v Shire of Campaspe,[19] the Court of Appeal had occasion to consider the requirement for leave to appeal to be obtained under s 14A of the Supreme Court Act 1986 (Vic) in appeals to the Court of Appeal and the meaning of the phrase in s 14C of that Act that 'The Court of Appeal may grant an application for leave to appeal under section 14A only if it is satisfied that the appeal has a real prospect of success'. In Kennedy, Whelan JA and Ferguson JA (as her Honour then was) stated that:[20]

Attention must be focussed on the words "real prospect of success" used by the statute. Bearing that in mind, those words should be construed consistently with this Court's interpretation of s 63 of the Civil Procedure Act. That is, the Court may only grant leave where the appeal has a "real" as opposed to a "fanciful" chance of success. This also accords with the interpretation given to the same words in the UK Civil Procedure Rules relating to appeals_._

Naturally, there will be some cases where the prospects of the appeal are strong, others where the prospects are weaker but it cannot be said that they are fanciful, and others where the prospects are fanciful. For the purposes of leave, it is only necessary to distinguish between those whose prospects are real and those whose prospects are fanciful. There is no bright line that divides the two. Nor is it useful to devise other categories using terminology deployed in other situations.

There are, of course, some different considerations that may play a part in the exercise of the Court's residual discretion to refuse leave, even where the appeal has a real prospect of success. For example (and without limiting the possibilities), there may be cases where even though the prospects of the appeal are real, no substantial injustice will be done if the decision stands. This may be particularly so when the appeal is from an order as to practice and procedure. No such considerations are at play in this case.

55 In Mendes v Baptcare Ltd,[21] Forbes J referred to the first two paragraphs cited above from Kennedy, stating that they explained the test for leave to appeal set out in s 148(2A) of the VCAT Act.[22]

56 The Respondents referred to Mount Atkinson Holdings Pty Ltd v Landfill Operations Pty Ltd, where it was stated that: [23]

Leave to appeal under s 148 may be granted only if the Court is satisfied that the application for leave has a real prospect of success [citing s 148(2A)]. To attract the grant of leave to appeal, a ground of appeal must raise a question of law with a real prospect of success. Leave to appeal should be refused where a question and related ground merely controvert the Tribunal's findings of fact, the question of law is misconceived, or where the ground misstates a finding of the Tribunal.

57 Even where there is a real prospect of success on appeal, that is not the end of the matter: leave may be refused for some other reason.[24] For example, leave may be refused where the claimed error of law could have made no difference to the order made by the Tribunal.[25]

58 Section 75 of the VCAT Act is also relevant to the Leave Application. Section 75 relevantly provides as follows:

75 Summary dismissal of unjustified proceedings

(1) At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion -

(a) is frivolous, vexatious, misconceived or lacking in substance; or

(b) is otherwise an abuse of process.

...

(4) An order under subsection (1) or (2) may be made on the application of a party or on the Tribunal's own initiative.

(5) For the purposes of this Act, the question whether or not an application is frivolous, vexatious, misconceived or lacking in substance or is otherwise an abuse of process is a question of law.

59 The notice of appeal states the questions of law as follows:

1. It is contended that the Equal Opportunity Act 2010, being a civil Act affirmed by the parliament of Victoria, is to be reviewed for a breach in the first instance at the [Tribunal]. The [Tribunal] be the forum where a member of the public can ask for review of a Victorian government employee's administrative decision.
2. The Order issued by the Deputy President is to dismiss such an application on the basis that it is misconceived and thus the VCAT forum is incorrect.

The question of law to consider is whether the application is indeed misconceived - thus the VCAT forum is incorrect - and, if in the affirmative, the matter is to be placed before the Supreme Court for determination. If in the negative, the matter is to be heard at the VCAT.

60 The notice of appeal then states that when determining whether the application was misconceived the following considerations need to be taken into account:

(i) Have [the Respondents] victimised and discriminated against the [Applicant], in particular, by breaching the Equal Opportunity Act 2010 so as to prejudice and bias him in his VCAT hearing against the [VIT]?

(ii) Have [the Respondents] victimised and discriminated against the [Applicant], in particular, by ignoring and deliberately misinterpreting principles and clauses within the Education and Training Reform Act 2006 (ETRA 2006) and so acted with prejudice and bias. This said Act having been used to review the [Applicant's] teaching registration?

(iii) Have [the Respondents] victimised and discriminated against the [Applicant] by ignoring serious breaches of procedural fairness and natural justice by the [VIT] in the lead up to, during and after the [Applicant's] VIT hearing and so acted with prejudice and bias thus perverting the course of justice?

(iv) Have [the Respondents] victimised and discriminated against the [Applicant] by deliberately ignoring High Court precedent and so acted with prejudice and bias thus perverting the course of justice?

61 The notice of appeal then lists 9 grounds of appeal, each one of which commence with the following:

[The Respondents] have breached (i) the Equal Opportunity Act 2010, (ii) the Education and Training Reform Act 2006 and (iii) ignored serious breaches of procedural fairness and natural justice by the [VIT] which have perverted the course of justice.

62 The grounds of appeal are prolix and discursive. As best as I can discern, they can be summarised as follows:

(a) Ground 1: the VIT 'tribunal hearing' cannot be heard until the alleged fraud has been resolved before the courts as the courts are the only jurisdiction for a criminal allegation. This resulted in a breach of the separation of powers. The Respondents 'either did not do their due diligence' or they 'deliberately ignored this breach of procedural fairness', both giving rise to victimisation and discrimination.

(b) Ground 2: the Respondents deliberately dismissed, thus victimised and discriminated against the Applicant, the High Court ruling in Ziems v The Prothonotary of the Supreme Court of NSW (1957)) [1957] HCA 46; 97 CLR 279.

(c) Ground 3: the Respondents did not do due diligence and victimised and discriminated against the Applicant because they sided with the VIT in ignoring the wording of the Education and Training Reform Act 2006 (Vic) ('ETR Act') requiring the VIT panel to consider all the submissions made to it. The VIT panel is said to have made its decision without considering 'all submissions' since 'all submissions' must include a review by Victoria Police and the courts.

(d) Ground 4: the Respondents ignored information provided by the Applicant and refused to act on that information, thereby deliberately discriminating and victimising him. Ground 4 is particularly difficult to both understand and summarise, but seems to be a complaint that the Respondents conceived that the VIT Decision referred to fraud when it did not, referring instead to misrepresentation, and that the Applicant had pointed this out to the Respondents.

(e) Ground 5: the Applicant did not receive procedural fairness at the VIT hearing, and the Respondents have actively discriminated against him thereby denying procedural fairness in the Tribunal hearing as well.

(f) Ground 6: the Respondents introduced material at the Tribunal hearing that was not presented by either party, which is an obviously prejudicial and biased act that discriminates and victimises the Applicant as well as denying him his right to procedural fairness.

(g) Ground 7: This ground is very difficult to discern, but appears to be that the VIT did not have jurisdiction to conduct the hearing in respect of his registration as a teacher.

(h) Ground 8: The gist of this ground appears to be that the VIT did not have jurisdiction or the factual foundation for making the decision to cancel the Applicant's registration as a teacher, and that the Respondents have sought to deny this and actively tried to suppress it.

(i) Ground 9: the VIT had no jurisdiction to determine fraud and to rule on a criminal matter.

63 Based on these two questions of law and on these nine grounds, the Applicant seeks orders that the Order be quashed and the matter remitted to the Tribunal for rehearing according to law, with this new hearing to be before Tribunal members other than the Respondents.

64 The Applicant's affidavit affirmed 14 September 2022 ('First Taylor Affidavit') comprises 9 numbered paragraphs which essentially repeat the 9 grounds set out in his notice of appeal.

65 The Applicant's affidavit affirmed 28 November 2022 ('Second Taylor Affidavit') corrects an error made earlier where he referred to the VIT hearing as having been conducted by a VIT tribunal whereas it was a VIT panel. The Second Taylor Affidavit also deposes to conduct said to have been engaged in by the VIT or its officers/investigators which are alleged to have traversed into the criminal area.

66 The Applicant's affidavit affirmed 13 December 2022 ('Third Taylor Affidavit'), which is lengthy, appears to critique many sections of the reasons for the Respondents' Decision and provides evidence which the Applicant says contradicts the reasons of the Respondents.

67 The first of the Applicant's affidavits affirmed 4 January 2023 ('Fourth Taylor Affidavit') is also lengthy, and appears to deal with the Tribunal's fair hearing obligation, how it is said the Respondents did not abide by this obligation, refers to his disabilities of asthma and a broken hip and discrimination against him, and makes various complaints about the VIT Decision.

68 The second of the Applicant's affidavits affirmed 4 January 2023 ('Fifth Taylor Affidavit') refers to material on the Tribunal's website that it is independent of the executive government and then alleges that it is a conflict of interest and institutionalised unfairness for the Respondents to be represented by the VGSO.

69 The Applicant's affidavit affirmed 2 February 2023 ('Sixth Taylor Affidavit') appears to have been filed in support of the 2 February Summons. This affidavit refers again to the VIT investigation and hearing, and makes further complaints about the Respondents' Decision. The questions of law referred to in the Sixth Taylor Affidavit appear to be the questions of law said to be at issue in the Respondents' Decision, not the questions of law stated in the notice of appeal filed in this proceeding. The Sixth Taylor Affidavit also alleges that the First Respondent is not a lawyer and that since the Second Respondent is a pharmacist there must not have been a judicial member of the Tribunal who decided the questions of law.

70 The Applicant's affidavit affirmed 10 May 2023 ('Seventh Taylor Affidavit') deposes to the matters relied upon by the Applicant to allege that the VIT is a legal fiction, which appears to be in support of the 11 March Summons.

71 The Applicant's affidavit affirmed 22 May 2023 ('Eighth Taylor Affidavit') repeats the Applicant's challenges to the VIT's jurisdiction and states a proposition that if he challenges the jurisdiction in a tribunal or court it is up to the person accused of acting outside their jurisdiction to prove that they were acting within their jurisdiction. It is alleged that in never challenging the VIT to establish its jurisdiction, the Respondents were biased and discriminatory.

72 I have included a brief description of all of the Applicant's affidavits here, as it is not entirely clear whether they are all relied upon in respect of the Leave Application or not. Since the Applicant did not clarify this at the hearing, it seems to me to be prudent for me to have regard to all of his affidavits when determining the Leave Application, so as not to inadvertently leave out any evidence.

73 The Belot Affidavit deposes to the Respondents' Decision, the VCAT Application, the 13 December 2021 Order, and the Order. Copies of these documents are exhibited to the Belot Affidavit.

74 As the Applicant chose to absent himself from the hearing of the Leave Application, I have not had the benefit of any oral submissions he may have made. In the Applicant's Written Outline, the Applicant summarises his background and then sets out a number of matters in which it is said that the VIT hearing and the VIT Decision were wrong. These substantially reflect the grounds stated in the notice of appeal.

75 The Applicant submits that the VIT failed to follow Ziems, unfairly denied his reasonable request for a six week adjournment due to his disability, committed jurisdictional errors, errors of law, administrative errors, and breached the Privacy and Data Protection Act 2014 and the Information Privacy Principles. The matters relied upon in respect of these submissions are also set out. By and large, they are the same matters as set out in the grounds contained in the notice of appeal.

76 The Applicant also submits that the Tribunal ignored the fact that VIT had acted against Ziems, discriminated against the Applicant, and overlooked the VIT's alleged breaches of the ETR Act. The Applicant submits that the Tribunal unlawfully relied on a 'vaguely defined issue that had not been raised' by either party.

77 The Applicant's Written Outline then addresses eight questions, all of which go to either the VIT Decision or the Respondents' Decision.

78 The Applicant concludes his Written Outline by referring to discrimination and the Equal Opportunity Act. I set this out verbatim as follows (omitting footnotes):

(39) A person is discriminated against when they are treated badly or unfairly because of a personal characteristic that is protected by the law.

(40) Characteristics protected in the Equal Opportunity Act 2010 are:

• disability

• profession, trade or occupation

(41) Discrimination is against the law when it happens in a specific area of public life.

• Employment

(42) Under the Equal Opportunity Act 2010, employers have a positive duty to eliminate discrimination, sexual harassment and victimisation as far as possible.

(43) Direct discrimination occurs if a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute.

(44) Indirect discrimination occurs if a person imposes, or proposes to impose, a requirement, condition or practice that has, or is likely to have, the effect of disadvantaging persons with an attribute; and that is not reasonable.

(45) Discrimination can occur by either acting with others or by not acting to redress existing or ongoing discrimination.

(46) Victimisation is when someone subjects or threatens to subject the other person to any detriment.

(47) The VIT is a qualifying body and must not discriminate in the terms on which it confers, renews or extends an occupational qualification nor subject the person to any other detriment.

79 The Respondents submit that the appeal has no real prospect of success and that the Leave Application should therefore be dismissed. Their submission focuses on two propositions: that it is not arguable that the Order was affected by an error of law; and that there is no utility in granting leave due to the statutory immunity afforded the Respondents.

80 I will set out the Respondents' submissions on these two issues below.

Is it arguable that the Order was affected by an error of law?

81 The Respondents submit that the grounds set out in the notice of appeal focus on alleged errors relating to the Respondents' Decision and/or the VIT Decision. Those grounds are said to be irrelevant to the determination of this proceeding. The Respondents refer to the fact that the Applicant's attempts to appeal those decisions were dismissed by this Court in Taylor v VIT No 1 and Taylor v VIT No 2.

82 The Respondents submit that to succeed in this appeal, the Applicant would need to establish an error of law in the Tribunal's conclusion in the Order, being that it did not have jurisdiction to consider the VCAT Application and therefore his application was misconceived. That question is to be determined solely by considering the jurisdiction of the Tribunal.

83 The Respondents submit that it is not arguable that the Order was affected by an error of law and that therefore the appeal has no real prospect of success. This is said to be for three reasons.

84 First, it is said to be trite that the Tribunal's jurisdiction is limited to that which is conferred upon it by an enabling enactment.[26] This limitation on the Tribunal's jurisdiction was acknowledged at [2] of the Accompanying Reasons to the Order.

85 The Respondents submit that it was the misconceived nature of the VCAT Application that led Deputy President Nihill to exercise the power under s 75 of the VCAT Act and to express it in terms of the jurisdiction of the Tribunal.

86 Second****, the VCAT Application stated the type of conduct the subject of the claim as 'VictimisationOther', described the relevant incident as '[a]buse of power, targeted victimisation, deception and fraud in an [sic] VCAT decision' and sought '[r]eversal of the said behaviour and decision'. The Respondents say that properly construed, and as correctly characterised at [1] of the Accompanying Reasons to the Order, the Applicant was seeking to bring a victimisation claim under the Equal Opportunity Act arising from the Respondents' Decision made in their capacity as members of the Tribunal.

87 Relevantly, the Equal Opportunity Act would allow certain relief if the Applicant established that the Respondents had victimised him contrary to s 103 of that Act. The Respondents submit that such a claim faces two insurmountable hurdles:

(a) section 104 of the Equal Opportunity Act defines victimisation as when a person subjects or threatens to subject the other person to any detriment because the other person has exercised their rights under the Equal Opportunity Act in certain ways. There is no factual basis on which the Applicant could maintain that the Respondents acted in that manner. The Respondents' Decision had nothing to do with the exercise by the Applicant of any rights under the Equal Opportunity Act; and

(b) the Respondents had (and continue to have) a statutory immunity in relation to the discharge of their functions as members of the Tribunal.

88 Further, the Respondents submit that insofar as the VCAT Application could be construed as a discrimination claim, Part 4 of the Equal Opportunity Act only prohibits discrimination in certain contexts, none of which provide an avenue to challenge the Respondents' substantive decision. The claims made by the Applicant regarding his asthma and 'broken' hip assert discrimination in the context of the VIT Decision, which is not relevant to the determination of this proceeding. Rather, the Applicant's complaint seems to be that the Respondents failed to identify and remedy the discrimination by the VIT that is at the heart of his complaint. The Respondents submit that that complaint is not something that falls within the rubric of prohibited discrimination under Part IV of the Equal Opportunity Act.

89 The Respondents submit that in the Accompanying Reasons to the Order, the Tribunal has not expressly turned its mind to its original jurisdiction under the Equal Opportunity Act. However, they say that while those reasons may not elaborate or fully explicate the basis on which the VCAT Application was misconceived - as they seem to be fixed or limited to a consideration of the review jurisdiction - the statement that the VCAT Application was misconceived was nonetheless entirely correct.

90 Third, the Respondents submit that even if the VCAT Application could be construed as seeking to engage the Tribunal's review jurisdiction, there is no enabling enactment that confers jurisdiction on the Tribunal to review its own decisions.

91 Of the statement in [3] of the Accompanying Reasons to the Order, the Respondents say that it elides a few concepts but nonetheless correctly sets out that there is no review jurisdiction of the Tribunal to review its own decisions on the merits. They say that, to the extent the VCAT Application was seeking to review the Respondents' Decision, to do so was plainly outside the jurisdiction of the Tribunal. The Respondents submit that while this paragraph of the Accompanying Reasons is a little inelegantly expressed, the conclusion that the VCAT Application was misconceived cannot be impugned.

92 Fourth, the Respondents say that the VCAT Application was also misconceived due to the statutory immunity afforded them as members of the Tribunal.

93 The Respondents say it follows that the conclusion in the Order that the VCAT Application was misconceived and liable to be dismissed under s 75 of the VCAT Act was correct. They say that there is no real prospect of the Applicant establishing otherwise.

Does the statutory immunity afforded the Respondents mean that there is no utility in granting the Applicant leave to appeal the Order?

94 The Respondents submit that if, contrary to these submissions, the Court considers there is a real prospect of the Applicant establishing an error in the Order, there is in any event no utility in granting leave to appeal because the Respondents had the benefit of a statutory immunity such that any remittal of the VCAT Application is bound to fail.

95 The Respondents rely on s 143(1) of the VCAT Act which provides that a member of the Tribunal has, in the performance of his or her functions as a member, the same protection and immunity as a judge of the Supreme Court has in the performance of his or her duties as judge. The Respondents say that as they are both members of the Tribunal, s 143(1) of the VCAT Act applies to them.

96 The Respondents submit that the effect of s 143(1) is that, at least when acting in the course of their duties as a member, a member is immune from being personally sued and personally held liable.[27] They say that accordingly, any claim under the Equal Opportunity Act directly against a member related to the exercise of their decision-making is precluded.[28]

97 The Respondents submit that the VCAT Application was brought against them under the Equal Opportunity Act on the basis of '[a]buse of power, targeted victimisation, deception and fraud in an [sic] VCAT decision' (emphasis added). The Respondents say that accordingly, the VCAT Application was based on the performance of their functions as members of the Tribunal, such that the immunity under s 143(1) of the Act applied. The Respondents submit that the VCAT Application was therefore bound to fail.[29]

98 The Respondents submit that the significance of the immunity is that there is no utility in remitting the VCAT Application, with the result that:

(a) the appeal has no real prospect of success; or alternatively

(b) even if the Court is satisfied there is a basis on which the appeal has a real prospect of success, it would be appropriate for the Court to exercise its discretion under s 148(2A) of the VCAT Act to refuse leave to appeal.

99 Although the Applicant chose to absent himself from the hearing of the Leave Application and was thus not present to press it, I consider it prudent to approach the Leave Application as if it was still pressed and on the basis of all of the material filed.

100 One of the fundamental deficiencies with the Leave Application is that not only is the Applicant's material prolix, repetitive and (at times) difficult to comprehend, the Applicant has directed himself mostly to challenging the VIT Decision and the Respondents' Decision. Very rarely does he squarely address the Order which is the subject of this proceeding. This is most clearly reflected in the four issues which the notice of appeal says must be taken into account when determining whether the VCAT Application was misconceived and in the grounds of appeal.[30]

101 Much of the Applicant's material conflates the concept of the Tribunal's review jurisdiction with its jurisdiction under specific legislation such as the Equal Opportunity Act.

102 It is conceivable that the first question of law stated in the notice of appeal could be construed as a question as to whether the Tribunal considered its original jurisdiction to deal with complaints under the Equal Opportunity Act, although this is far from obvious, given the emphasis in the second sentence on seeking a review of a Victorian government employee's administrative decision. In my view, significant re-drafting of the first question of law would need to be done in order to construe the question of law as being an error in the Tribunal's Order because it did not consider its original jurisdiction under the Equal Opportunity Act.

103 In fairness to the Applicant, who is not a lawyer and is not represented in this proceeding, if the expression of the first question of law stated in the notice of appeal was the only problem with the notice of appeal then I would give consideration to whether to permit an amendment of that question if I was of the view that there was a real prospect of success in relation to that amended question.

104 However, I am satisfied that there is no real prospect of success on the appeal, irrespective of whether there was an amendment to the first question of law. This is because I am satisfied that the VCAT Application was misconceived, for the following reasons:

(a) there is no error of law in Deputy Nihill's conclusion that the Tribunal's jurisdiction is limited to that which is conferred on it by an enabling enactment. Further, there is no error of law in the conclusion that the Tribunal does not have jurisdiction to review its own decisions. In this regard, I accept the Respondents' submissions as set out at paragraphs 84 to 85 and 90 to 91 above;

(b) I accept the Respondents' submission that while the Tribunal does not appear in the Accompanying Reasons to the Order to have expressly turned its mind to its original jurisdiction under the Equal Opportunity Act, the statement that the VCAT Application was misconceived was entirely correct. In this regard, I accept the Respondents' submissions as set out at paragraph 89 above;

(c) there is no factual basis upon which the Applicant could bring himself within the provisions of the Equal Opportunity Act prohibiting victimisation for exercising his rights under that Act. In this regard, I accept the Respondents' submissions as set out at paragraphs 86 and 87(a) above;

(d) if it was intended by the Applicant that his VCAT Application also (or alternatively) constitute a discrimination claim under Part 4 of the Equal Opportunity Act, there is also no basis upon which he can bring the matter complained of - being the Respondents' Decision and/or the Respondents' conduct in dealing with the matter the subject of that decision - within a prohibited ground/s of discrimination in the contexts specified in the Equal Opportunity Act. In this regard, I note that the Applicant's Written Outline referred to the specific area of public life where discrimination was prohibited as 'employment'. That is not the area of public life participated in by the Applicant when conducting the Review Proceeding or when making the VCAT Application. In this regard, I accept the Respondents' submissions as set out at paragraph 88 above; and

(e) the statutory immunity afforded the Respondents in the discharge of their functions as members of the Tribunal is a barrier to the Applicant succeeding in proceedings against the Respondents.[31]

105 Under s 143(1) of the VCAT Act, the Respondents have a statutory immunity from suit in the performance of their functions as members of the Tribunal. I accept their submissions in this regard, as set out at paragraphs 95 to 97 above.

106 In particular, the conduct of which the Applicant complains in his VCAT Application is conduct occurring in the Respondents performing their duties and functions as members of the Tribunal. They were engaged in the hearing and determining of the matters set out in the Respondents' Decision and it is very clear from the VCAT Application and the notice of appeal, as well as the rest of the Applicant's material, that this was the case. There can be no doubt about that. The VCAT Application being based on the performance of the Respondents' functions as members of the Tribunal, the statutory immunity applies and the VCAT Application was bound to fail.

107 This has implications for the Leave Application in two ways: first, it means that there is no real prospect of the Applicant succeeding on the appeal; and second, even if there was a real prospect of success, the statutory immunity still means that proceeding with the appeal would be futile as there would be no utility in remitting the VCAT Application, such that leave should be refused. I accept the Respondents' submissions in this regard, as set out at paragraphs 94 and 98 above.

108 It follows from the outcome of the Leave Application that this proceeding is to be dismissed. Consequently, the Applicants' interlocutory summonses, being the 2 February Summons, the 3 February Summons and the 11 March Summons, fall away.

109 While it is not necessary for me to go further in this regard, I would simply state that even if that were not the case, I would dismiss the summons that was listed before me on 14 June 2023 for hearing, being the 2 February Summons, as I am not satisfied that the Applicant has established that the Respondents' defence has no real prospect of success.

110 In this regard, I accept the submissions made by the Respondents in their written outline of submissions regarding the 2 February Summons. I accept the Respondents' submissions that:

(a) The summons is premature in circumstances where the application for leave to appeal (the substantive application before the Court) had yet to be determined.

(b) As a consequence of the orders made on 23 November 2022, the Respondents' Written Outline is limited to addressing the question of leave to appeal. The Respondents are yet to file any material in the proposed substantive proceeding, and indeed may not need to in the event that the Leave Application is dismissed. In these circumstances, there is no capacity for the Court to assess whether the Respondents' defence to a proceeding that is still contingent has no real prospect of success. Further, it would be fundamentally unfair to deprive the Respondents at this stage of a prospective proceeding of the opportunity to present its case in the usual way.[32]

(c) Even if the Respondents' Written Outline could be conceived of as a defence to the substantive proceeding, those submissions reveal that the Respondents have a real chance of succeeding in their arguments that the Order was not affected by an error of law, and that there is in any event no utility in remitting the VCAT Application.

(d) The Applicant has not made any submissions that could rationally support a conclusion that the Respondents have no prospect of success in defending the proceeding. The 2 February Summons was accompanied by the Sixth Taylor Affidavit. That affidavit, and the ones filed subsequently, allege errors in the VIT Decision and the Respondents' Decision. Those decisions are not relevant to the Order under challenge in this proceeding, nor the determination of the 2 February Summons. Further, proceedings brought by the Applicant regarding those decisions were dismissed by the Court on 14 April 2022, as set out earlier in these reasons.

111 It follows that the Leave Application will be dismissed. I will therefore make orders refusing leave to appeal and dismissing the proceeding.

112 The parties are to confer on the form of orders to give effect to this judgment and as to costs. If there is agreement, they are to provide my chambers with the proposed orders by 4.00pm on 14 July 2023. If there is no agreement, then the parties are to provide their preferred form of orders and a short written submission as to costs of no more than 3 pages to my chambers by 4.00pm on 14 July 2023. I will determine any question of costs on the papers after 4.00pm on 14 July 2023.

113 There is one further matter which should be mentioned. On 14 June 2023 at 7.59pm (ie after the conclusion of the hearing), my Associates received an email from the Applicant directed at myself and couched in scandalous and disrespectful terms. As correspondence sent after the hearing without leave, I have not taken it into account in coming to my decision on the Leave Application. However, this email may well constitute a contempt of court. If it were not for the fact that there appears to be little utility in doing so, given that the Applicant is now located in the United Kingdom, having been deported from this country in March 2023,[33] I would make a direction under r 75.07 of the Supreme Court (General Civil Procedure) Rules 2015 that the Prothonotary apply by summons for punishment of the contempt.

[2] Taylor v Victorian Institute of Teaching (No 1 - The Judicial Review Proceeding) [2022] VSC 184 ('Taylor v VIT No 1').

[3] Taylor v Victorian Institute of Teaching (No 2 - The VCAT Appeal Proceeding) [2022] VSC 185 ('Taylor v VIT No 2').

[4] [2121] VCAT 1238 ('CZZ v Bailey').

[5] Transcript of Proceedings, Julian Taylor v Reynah Tang (Supreme Court of Victoria, S ECI 2022 03805, Matthews AsJ, Wednesday 14 June 2023) 2.

[9] [2014] NSWCA 98 ('Reid').

[10] Reid, [68] (citations omitted). See also Minister for Immigration v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17, [69], [127]; and Bahonko v Moorfields Community and Others [2012] VSCA 89; (2012) 34 VR 409, [25].

[11] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, [11] ('Johnson'); Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, [6] 'Ebner'.

[14] (1992) 26 NSWLR 411, 438 ('Australian National Industries').

[15] Livesey v NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288, 293-4.

[16] Western Australia v Watson [1990] WAR 248, 263; Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, 352.

[17] Karadaghian v Big Beat (Australia) Pty Ltd (No 3) [2014] NSWSC 1691.

[18] [2007] NSWSC 109, [63].

[19] [2015] VSCA 47 ('Kennedy').

[21] [2019] VSC 790 ('Mendes').

[23] [2020] VSC 345, [46] ('Mount Atkinson Holdings').

[24] Metricon Homes Pty Ltd v Softley [2016] VSCA 60; (2016) 49 VR 746, [29].

[25] Forster v Legal Services Board [2013] VSCA 73; (2013) 40 VR 587, [137].

[27] Towie v Victoria [2008] VSC 177, [59], citing Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166, [36]-[41].

[28] See, by analogy, Macras v Victoria Police [2018] FCCA 1908, [27], citing Luck v University of Southern Queensland [2014] FCAFC 135 which held at [41] that any claim of discrimination by a judicial officer under the Disability Discrimination Act 1992 (Cth) would be precluded by the principle of judicial immunity.

[29] Roth v Murphy [2019] NSWSC 1345, [19], [26].

[30] See paragraphs 60 to 62 above.

[31] This is discussed more fully below.

[32] AML v Longden Super Custodian Pty Ltd [2023] VSC 99, [23]-[24].

[33] Taylor v State of Victoria [2023] VSC 320, [5].