Applicant v Respondent [2025] VSC 548 | Case summary

Supreme Court of Victoria|2025-09-04|Before: Quigley J

The Applicant sought that a newly appointed Senior Member 'take over the case and restart the hearing'.

39 The Respondent and the Applicant both filed submissions. On 3 October 2020, the Respondent filed written submissions in respect of the s 76 application, together with an affidavit sworn 3 October 2022 by Renae Petulla.[10]

40 On 7 November 2022, the Applicant filed his submissions,[11] which included reference to his s 108 application. These submissions asserted that the Applicant was so traumatised by the Tribunal, to the point of being suicidal, that he had to seek medical help and give a series of medical certificates to excuse him from further Tribunal hearings due to his fragile mental health. The Respondent filed submissions in reply, which included submissions in response to the s 108 application.

41 On 10 February 2023, the Tribunal made orders that proceeding H180/2019 be dismissed under s 76 of the VCAT Act for want of prosecution (the 'VCAT Orders'), including the Tribunal's reasons ('Reasons').[13] Section 76 is titled 'Summary dismissal for want of prosecution' and is extracted below at [70] in the 'Legislation' section of this judgment.

42 The Tribunal's Reasons set out the background and nature of the proceeding and the procedural history.[14] The Tribunal identified that the proceeding was brought pursuant to s 122 of the EO Act and that the Applicant bore the onus of proving, on the balance of probabilities and to a comfortable level of satisfaction, that the Respondent engaged in the conduct alleged.[15]

43 The Tribunal recorded that the Respondent's application for summary dismissal was made under s 76 of the VCAT Act and that the Respondent had the burden in respect of that application.[16]

44 The Tribunal set out the legislative framework and provisions of the EO Act, RRT Act, and the Charter, and related legal principles.[17] The Applicant claimed direct and indirect discrimination on the basis of age, race, religious belief or activity and disability, in breach of the EO Act in the area of the provision of goods and services.

45 The Tribunal explained that, for the Applicant's direct discrimination claims to succeed, he must establish that the Respondent treated him unfavourably because of a protected attribute in the area of goods and services.[18] In a claim of indirect discrimination, he must establish that the Respondent imposed a requirement, condition or practice that has, or is likely to have, the effect of disadvantage in persons with an attribute that he has in the area of goods and services.[19] The Tribunal set out a number of preliminary observations on the evidence that it had received, and the evidentiary and legal hurdles it had identified which confronted the Applicant. The Tribunal explained the basis of its preliminary view in respect of the Charter rights and the preliminary legal question of whether the EO Act applied.

46 It observed in its preliminary view, in respect of the long list of Charter rights the Applicant claimed had been breached by the Respondent, that the evidence presented to the Tribunal indicated that the Applicant's 'medical, psychological and dietary needs were appropriately met'.[20] Furthermore, the evidence 'did not otherwise identify any breaches of the Charter which were not consistent with reasonable limitations which the Respondent was entitled to impose within a prison context'.[21]

47 In respect of the threshold question arising from the EO Act as to whether the Respondent provided a 'service' to the Applicant, the Tribunal concurred with the Respondent's submission that a failure or refusal to provide or an interference with the enjoyment of the statutory right set out in s 47 of the Corrections Act, is not the failure to provide a 'service' for which action can be taken under the EO Act.[22] Rather, it is a breach of the Corrections Act and the proper means by which a prisoner is required to bring such a failure before the courts is 'by way of a judicial review application with respect to the unlawfulness arising under s 47' of the Corrections Act.[23]

48 The Tribunal agreed with the Respondent's submission, having received the witness statements, evidence in chief and most of the cross‑examination, that the matters about which the Applicant complained:[24]

[16.1] arose from the fact of the Applicant being a sentenced prisoner in the legal custody of the Secretary [of the DJCS] and subject to the Corrections Act and Corrections Regulations;

[16.2] are matters which are inherent parts of the Applicant's incarceration and not services to him; and

[16.3] were undertaken in performance of and in compliance with the statutory duties in the Corrections Act.

49 The Tribunal referred to a number of cases where prisoners alleged there had been a breach of the statutory rights in s 47 of the Corrections Act, noting that 'the proper means by which a prisoner is required to bring such a failure before the courts is by way of a judicial review application'.[25] These cases included Haigh v Ryan,[26] Minogue v Dougherty,[27] Minogue v Shuard,[28] and Castles v Secretary to the Department of Justice.[29]

50 The Tribunal set out the authorities which it considered relevant to the meaning of the term 'services'.[30] These included Waters v Public Transport Corporation,[31] IW v City of Perth,[32] Rainford v Victoria,[33] Robinson v Commissioner of Police, NSW Police Force,[34] Charles v State of Victoria (Corrections Victoria),[35] and Kavanagh v Victorian Workcover Authority trading as WorkSafe Victoria.[36]

51 The Tribunal, having discussed these authorities, agreed with the Respondent that the claims made by the Applicant did 'not relate to services within the meaning of the relevant EO Act definition'.[37]

52 In this context, the Tribunal then expressed its 'preliminary view of the Applicant's complaints' that the chances of the Applicant succeeding under any of his complaints were negligible, both by reason of legal impediment and 'the deficiency of credible and relevant evidence'.[38] The Tribunal then summarised the difficulties faced by the Applicant as follows:[39]

I accept that the Respondent does not provide 'goods and services' for the purposes of a claim under the EO Act; and

b. The Applicant's complaints do not fall within the RRT Act; and

The Charter rights have either not been limited; are necessarily and reasonably limited by the context of a penal system or the claims rely upon proof of discrimination under the EO Act.

53 The Tribunal then discussed the further legal and evidentiary impediments it had identified in the Applicant's case.

54 The Tribunal referred to the Respondent's application for summary dismissal of the Applicant's case based on s 75 of the VCAT Act (on the grounds that it is misconceived and lacking in substance) that had been dealt with earlier in the proceeding by Senior Member Burdon‑Smith. At that time, the Respondent in the alternative had requested an order pursuant to s 76 of the VCAT Act summarily dismissing the discrimination and vilification complaints because they related to events that allegedly took place more than 12 months before the application was made. The earlier order of the Tribunal dismissed the victimisation claim on the basis that it was misconceived and lacking in substance.[40] The Respondent's application was otherwise dismissed, there being a very high threshold to meet before the Tribunal can be satisfied there is no arguable case.

55 The Tribunal expressed the view that it was now appropriate to revisit the s 76 application given the delays which have occurred since the hearing was adjourned in September 2021.[41] The Tribunal set out the timeline of the proceeding and noted that most of the Applicant's complaints related to alleged conduct between one and five years prior to the filing of his application with the Tribunal on 29 July 2019. The Tribunal then stated as follows:[42]

In turn, the Hearing did not commence until April 2021, and it is now nearly 2 years later. At best, when giving evidence, the Applicant and witnesses have had to recollect events between at least 3 to 7 years ago. I also have regard to the Respondent Counsel's submissions that the delay adversely impacts upon a Presiding member's reasonable capacity to recall all the details of the evidence given and the assessment of ten witnesses. In my view, these circumstances have a significant potential to impact adversely upon the resolution of the proceeding fairly. For this reason alone, it is appropriate to dismiss the proceeding under s 76 of the VCAT Act in accordance with Clause 18 of Schedule 1.

56 The Tribunal proceeded to express further preliminary views about the Applicant's discrimination claim, as follows:[43]

The Applicant has made many claims of unfavourable treatment by one or more of the prison staff, which he found hurtful and humiliating. Putting aside whether such conduct amounts to the provision of goods and services, in my view, the evidence has not demonstrated how the Respondent treated him unfavourably, because of his age, race, disability or religious belief. This is a fatal deficiency in the Applicant's evidence.

It must also be borne in mind that unacceptable or antisocial behaviour such as inexplicable rudeness, ill‑mannered or insulting behaviour and lack of consideration for others does not of itself necessarily amount to discriminatory conduct. The recipient of such conduct may be understandably aggrieved, shocked and hurt. The Applicant's own witnesses certainly attested to bad behaviour which they occasionally experienced by some prison officers. However, it does not necessarily follow that such conduct will satisfy the elements of discriminatory behaviour under the EO Act.

57 The Applicant's discrimination claims predominantly focused upon the officers' conduct of cell searches, the removal of food containers from the Applicant's cell, their restriction on ingredients for biscuit baking, and his volume of accumulated food, ingredients and documents requiring storage. The Tribunal expressed the view that 'the volume of the Applicant's biscuit baking became excessive and whilst it may have been tolerated and overlooked for periods, the evidence revealed that the Respondent acted within its rules, practices and procedures'.[44] Furthermore, the Respondent's witnesses expressed reasonable concerns for 'managing food trafficking and stand over behaviour by prisoners'.[45]

58 Separately, the Tribunal noted that certain complaints made by the Applicant appear to have been dealt with elsewhere.[46] This included his claims concerning transportation and storage of property, particularly when being moved between facilities. This had been the subject of a conciliation agreement at the Commission and, accordingly, was not a matter which should have been brought before the Tribunal. In addition, the Applicant's complaints with respect to the same facts concerning the reading of his legal documents were made to the Office of the Victorian Information Commissioner ('OVIC') and to the Commission. In March 2018, OVIC had written to the Applicant notifying him that his complaints had been dismissed in accordance with s 66(5) of the Privacy and Data Protection Act 2014 (Vic) and no further action may be taken in relation to the complaint. Consequently, this is not a matter which should have been brought before the Tribunal.

59 In respect of the Applicant's diabetes and dietary requirements, the management of these conditions was documented and there was no evidence before the Tribunal that the Applicant had suffered any adverse medical consequences.[47]

60 The Tribunal expressed the view that the Applicant's complaints concerning delivery of his mail, or the alleged opening of mail, did not identify a protected attribute.[48] The Respondent 'provided a reasonable and plausible account for the limitations to their involvement in mail delivery and the overriding security issues'.[49]

61 The physical assaults upon the Applicant by other prisoners were not denied. However, the Applicant did not allege that the Respondent's alleged failure to prevent him from being assaulted was 'because of any protected attribute under the EO Act'.[50] The Respondent 'had policies and procedures in place to minimise the risk of violence between prisoners but is not responsible for the actions of prisoners and the actions of prisoners are not part of any "service" provided by the Respondent'.[51]

62 In considering the want of prosecution of the Respondent, the Tribunal identified the overriding consideration in determining such an application is 'the interests of justice in the Tribunal's ability to control its own processes to ensure that those interests are not compromised'.[52] In considering the application, the Tribunal identified that it should consider 'similar matters to those considered by the courts, in determining a want of prosecution claim', including:[53]

Whether there has been an inordinate and inexcusable delay by a party in taking a step in the proceeding.
Whether the delay means that there will be a substantial risk that a fair trial will not be possible.

c. Any prejudice to the respondent that is caused by the delay.

d. Any hardship to the applicant if the matter was dismissed.

63 The observations of Wilcox and Gummow JJ in Lenijamar Pty Ltd v AGC (Advances) Ltd ('Lenijamar')[54] were referred to as providing useful guidance for determination of the application.[55] Lenijamar referred to two situations as 'obvious candidates for the exercise of the power' to dismiss for want of prosecution and made observations as a consequence thereof, as follows:[56]

[1] cases in which the history of non‑compliance by an applicant is such as to indicate an inability or unwillingness to co‑operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period and [2] cases - whatever the applicant's state of mind or resources - in which the non‑compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent. Although the history of the matter will always be relevant, it is more likely to be decisive in the first of these two situations. Even though the most recent non‑compliance may be minor, the cumulative effect of an applicant's defaults may be such as to satisfy the judge that the applicant is either subjectively unwilling to co‑operate or, for some reason, is unable to do so. Such a conclusion would not readily be reached; but, where it was, fairness to the respondent would normally require the summary dismissal of the proceeding.

64 The Tribunal accepted that both categories applied in the present case, finding that the Applicant was 'unable' rather than 'merely ... unwilling' to complete the final day of the hearing, and that the hearing could not be completed 'within an acceptable period'.[57] From October 2021, the Applicant had provided seven medical certificates of an unfitness to proceed extending over 16 months.[58] There was 'no current indication of when the Applicant might be well enough' to continue with the hearing.[59] Consequently, the Tribunal formed the view that 'the lengthy delay and uncertainty of recommencing the [h]earing was now intolerable and unacceptable'.[60]

65 In reaching this conclusion, the Tribunal did not criticise the Applicant in any way. However, the Tribunal formed the view that the interests of justice required that the proceeding be dismissed.[61] The Tribunal was satisfied that 'any further delay in the conduct of the proceeding [would] significantly impact adversely upon the Tribunal's ability to conclude a fair hearing for both parties'.[62] The Tribunal was also satisfied that the further conduct of the proceeding was 'unlikely to result in a favourable outcome for the Applicant'.[63]

66 The Applicant filed an initial notice of appeal on 10 March 2023 and an amended notice of appeal on 16 August 2024.[64]

67 The 14 questions of law posed by the amended notice of appeal can be summarised as follows:

(a) Did the Tribunal err in law by failing to determine the s 108 application? (Question 1)

(b) Did the Tribunal deny the Applicant procedural fairness, breach the right to a fair hearing in s 24 and/or the right to recognition and equality before the law in s 8 of the Charter, or otherwise err in law by:

(i) Failing to inform him that it intended to consider the merits of his complaint in determining the Respondent's application under s 76 of the VCAT Act? (Question 2)

(ii) Making findings in respect of the merits of his complaint in circumstances where the hearing was part heard and the Applicant had not been provided with an opportunity to cross‑examine all of the Respondent's witnesses, to address any perceived deficiencies in his evidence, or to make submissions? (Question 3)

(iii) Imposing restrictions upon the Applicant's cross‑examination of the Respondent's witnesses? (Question 4)

(iv) Determining to dismiss the proceeding under s 76 of the VCAT Act in accordance with cl 18 of sch 1 without informing him that it was considering so determining, giving him an opportunity to make submissions in respect of cl 18 of sch 1, or otherwise providing the Applicant a reasonable opportunity to respond? (Question 5)

(v) Finding that the Applicant had not demonstrated that the Respondent did not treat him unfavourably because of his age, race, disability or religious belief? (Question 7)

(c) Did the Tribunal misconstrue or misapply the legal test in cl 18 of sch 1 to the VCAT Act, or make findings that no reasonable Tribunal member could make, in determining to dismiss the proceeding under s 76 of the VCAT Act in accordance with cl 18 of sch 1? (Question 6)

(d) Did the Tribunal misconstrue or misapply the legal tests for discrimination in ss 7-11 of the EO Act, or otherwise err in law in finding that the Respondent had not demonstrated that he had been treated unfavourably because of his age, race, disability or religious belief? (Question 8)

(e) Did the Tribunal make a finding that was not open to it in determining that the Applicant did not allege that the Respondent's failure to prevent him from being assaulted was because of any protected attribute under the EO Act? (Question 9)

(f) Does the Respondent provide a service to prisoners within the meaning of s 44 of the EO Act? (Question 10)

(g) Did the Tribunal make a finding that was not open to it in finding that the evidence failed to identify any breaches of the Charter which were inconsistent with reasonable limitations which the respondent was entitled to impose in a prison context? (Question 11)

(h) Did the Tribunal make a finding that was not open to it, in finding that no evidence met the test for vilification per s 7(1) of the RRT Act? (Question 12)

(i) Did the Tribunal misconstrue or misapply the legal test in s 76 of the VCAT Act or make a finding that was not open to it, in finding that the proceeding should be dismissed for want of prosecution? (Question 13)

(j) Was the Tribunal's decision affected by actual or apprehended bias? (Question 14)

68 The 32 grounds of appeal are linked to the various questions of law and, in summary, relate to:

(a) the failure of the Tribunal to determine the s 108 application prior to determining the s 76 application (Ground 1);

(b) the procedure adopted by the Tribunal in determining the Respondent's application under s 76 of the VCAT Act in making findings as to the merits of his claims:

(i) without notifying him or affording him a reasonable opportunity to be heard on those matters (Grounds 2 and 3); and

(ii) in circumstances where the evidence had not been completed (Grounds 4 and 5);

(c) the restrictions placed on the Applicant in his cross‑examination of witnesses including requiring him to put questions in writing in advance and requiring all questions to go through the Tribunal member and requiring the cross‑examination of Mr Jacques to be completed through written questions and answers (Grounds 6 and 7);

(d) the dismissal of the proceedings on the basis of the complaint related to matters that occurred more than 12 months prior to making a complaint under cl 18 of sch 1 to the VCAT Act when the Respondent's application for summary dismissal on that basis had already been refused, some of the conduct complained of occurred less than 12 months prior to the making of the complaint, and the Respondent was not asserting any prejudice and there were potential explanations for the delay (Grounds 8 to 11);

(e) the findings of the conduct complained of could not or did not amount to discrimination under the EO Act (Grounds 12 to 15);

(f) the findings that the Respondent was not providing a service to the Applicant for the purposes of s 44 of the EO Act (Grounds 16 to 19);

(g) the findings in respect of the Applicant's claims in respect of breaches of his rights under the Charter (Grounds 20 to 26);

(h) the finding that none of the evidence could amount to racial vilification under the RRT Act (Ground 27);

(i) the dismissal for want of prosecution in circumstances where the unchallenged evidence before the Tribunal was the reason the Applicant was unable to attend a resumed hearing was due to his mental health (Grounds 28 and 29); and

(j) the conduct of the proceedings was in a manner that gives rise to apprehend actual bias (Grounds 30 to 32).

69 The key provisions of the VCAT Act, the EO Act, the RRT Act, the Charter, and the Corrections Act are set out below.

70 Section 76 of the VCAT Act provides for summary dismissal for want of prosecution as follows:

(1) At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding for want of prosecution.

(2) The Tribunal's power to dismiss or strike out a proceeding under this section is exercisable by -

(a) the Tribunal as constituted for the proceeding; or

(b) a presidential member.

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

The Tribunal may make an order under section 76 summarily dismissing an application under the Equal Opportunity Act 2010 in respect of an alleged contravention of Part 4, 6 or 7 of that Act if the alleged contravention occurred more than 12 months before the application was made.

The Tribunal may make an order under section 76 summarily dismissing an application under the Racial and Religious Tolerance Act 2001 in respect of an alleged contravention of Part 2 of that Act if the alleged contravention occurred more than 12 months before the application was made.

73 Sections 97 and 98 are of general importance to the Tribunal's procedure. Section 97 states as follows:

The Tribunal must act fairly and according to the substantial merits of the case in all proceedings.

(1) The Tribunal -

(a) is bound by the rules of natural justice;

(b) is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures;

(c) may inform itself on any matter as it sees fit;

(d) must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit.

(3) Subject to this Act, the regulations and the rules, the Tribunal may regulate its own procedure.

(4) Subsection (1)(a) does not apply to the extent that this Act or an enabling enactment authorises, whether expressly or by implication, a departure from the rules of natural justice.

The Tribunal may give directions at any time in a proceeding and do whatever is necessary for the expeditious or fair hearing and determination of a proceeding.

The Tribunal may conduct all part of the proceeding entirely on the basis of documents, without the appearance of parties or their representatives or witnesses, unless a party objects to all or part of the proceeding being conducted in this manner.

77 Section 102 sets out the rules as to evidence in a Tribunal proceeding. It provides:

(1) The Tribunal must allow a party a reasonable opportunity -

(a) to call or give evidence; and

(b) to examine, cross‑examine or re‑examine witnesses; and

(c) to make submissions to the Tribunal.

(2) Despite subsection (1), the Tribunal may refuse to allow a party to call evidence on a matter if the Tribunal considers that there is already sufficient evidence of that matter before the Tribunal.

78 Section 108 enables a party to make an application for reconstitution of the Tribunal as follows:

(1) At any time before the conclusion of the hearing of a proceeding -

(a) a party may apply to the Tribunal for the reconstitution of the Tribunal for the purposes of the proceeding; or

(b) the President or a member of the Tribunal as presently constituted may give notice to the parties that the President or member seeks the reconstitution of the Tribunal for the purposes of the proceeding.

(2) If an application is made under subsection (1)(a) or notice is given under subsection (1)(b) -

(a) a presidential member, after allowing the parties to make submissions, may decide that the Tribunal should be reconstituted; and

(b) if so, the President must reconstitute the Tribunal.

(3) If the Tribunal is reconstituted for the purposes of a proceeding, the reconstituted Tribunal may have regard to any record of the proceeding in the Tribunal as previously constituted, including a record of any evidence taken in the proceeding.

79 Section 148 concerns appeals from the Tribunal. It relevantly provides:

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

...

(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.

...

(7) The Court of Appeal or the Trial Division, as the case requires, may make any of the following orders on an appeal -

(a) an order affirming, varying or setting aside the order of the Tribunal;

(b) an order that the Tribunal could have made in the proceeding;

(c) an order remitting the proceeding to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the court;

(d) any other order the court thinks appropriate.

(8) If the court makes an order under subsection (7)(c), it must give directions as to whether or not the Tribunal is to be constituted for the rehearing by the same members who made the original order.

80 While the Applicant was a prisoner, he was in the legal custody of Corrections Victoria, DJCS under s 6A of the Correction Act. Under the Corrections Act and the Corrections Regulations 2019 (Vic) ('Regulations'), the Respondent is responsible for the establishment, management and security of prisons and the welfare of prisoners.

81 The Corrections Act and Regulations confer various functions, duties and powers on officers of the Respondent and impose various requirements upon prisoners. Section 47 of the Corrections Act sets out rights afforded to prisoners.

82 The parties referred to several provisions of the EO Act, the RRT Act, and the Charter in the course of this proceeding.[65] As will become evident in my reasons, many of these provisions do not bear setting out in this judgment. However, as it pertains to a standalone question of law of some concern to the parties, s 44 of the EO Act bears extraction:

(1) A person must not discriminate against another person -

(a) by refusing to provide goods or services to the other person; or

(b) in the terms on which goods or services are provided to the other person; or

(c) by subjecting the other person to any other detriment in connection with the provision of goods or services to him or her.

(2) Subsection (1) applies whether or not the goods or services are provided for payment.

83 Whilst this provision and related question of law (Question 10) were central to the position of the Intervenor, its relevance in the context of an appeal under s 148 of the VCAT Act is misplaced, as I have found below at [171].

84 The Applicant filed lengthy and varied submissions which I have considered. The lengthy questions of law and grounds of appeal are demonstrative of much of the Applicant's submissions. Some of the key submissions are explored further in this section.

85 It was submitted that there are some acts or omissions and decisions of the Tribunal in respect of which the Tribunal may be regarded as acting administratively, particularly those acts and decisions which occurred outside the hearing, including the vacation of hearing dates and relisting, dealing or not dealing with the Applicant's application for reconstitution, failing to respond to the Applicant's medical certificates, and making enquiries or taking steps to assist him to attend the hearing or otherwise enable the hearing to be completed.

86 It was submitted that, in respect of these acts and decisions, the Tribunal was not only required to act compatibly with the rights in ss 8 and 24, it was also required to do so by reason of s 6(2)(b), and had obligations under s 38(1) of the Charter to give proper consideration to them. There are no written reasons to explain what was not taken into account by the Tribunal. It was submitted that it is open to the Court to conclude there was a failure to properly consider the rights in ss 8 and 24 of the Charter based upon the actions that were (or in most instances were) taken by the Tribunal.

87 It was submitted by the Applicant that this appeal raises important questions about how the Tribunal deals with self‑represented litigants who suffer from disability, particularly mental and cognitive impairments.

88 In particular, it was submitted that there are a number of grounds which directly or indirectly raise issues with respect to the obligations of the Tribunal in respect of self‑represented litigants pursuant to common law principles of procedural fairness and the right to a fair hearing in s 24 of the Charter. These included:

(a) the 'significant' restrictions imposed on the Applicant's cross‑examination of witnesses that were not imposed upon the Respondent and the imposition of 'onerous conditions' such as the preparation of written submissions which were more difficult for a person such as the Applicant;

(b) the s 76 application being decided on the papers and without allowing the Applicant to make submissions on the merits; and

(c) the dismissal of the proceeding for want of prosecution in circumstances where the reason for the delay in completing the hearing was the Applicant's incapacity to attend due to his mental health.

89 It was submitted that there are additional obligations under s 8(3) of the Charter where a self‑represented litigant has attributes protected by the EO Act that impact on the capacity to conduct legal proceedings. Further that under the VCAT Act the Tribunal has broad powers to adopt procedures in order to accommodate the needs of persons whose attributes impact on their ability to effectively participate in legal proceedings. This includes procedures adopted for the hearing,[66] the use of interpreters,[67] the assistance of support persons,[68] and that where a party is unrepresented the Tribunal may appoint a person to represent that party.[69]

90 Ultimately, the Applicant sought that the Court set aside the VCAT Order and either:

(a) grant the specific relief which he had sought before the Tribunal, as outlined in [104] of his Further Particulars of Claim dated 10 December 2020; or

(b) order that the Trial Division of this Court hear and determine the discrimination case under the EO Act the RRT Act and the Charter; or

(c) remit the proceeding back to be heard by the Tribunal, differently constituted (by a Senior Member).

91 The Respondent conceded Question 1 in respect of the s 108 application not having been decided by the Tribunal and argued that the proceeding could be remitted to the Tribunal on this basis alone. It was said that this omission is an error of law as:

(a) the Tribunal failed to exercise its jurisdiction in relation to the s 108 application; and

(b) the s 76 application should not have been heard while the s 108 application remained undetermined.

92 The other parties however resisted remittal to the Tribunal for various reasons that were either not fleshed out or not to the point at hand.

93 The Respondent submitted that it was not necessary to decide the additional 31 grounds of appeal if the appeal was granted on the first ground/question of law. In the alternative, the Respondent resisted these grounds as misplaced in the context of an appeal of a s 76 decision.

94 The Respondent emphasised that the Tribunal had before it an application under s 76 of the VCAT Act for summary dismissal for want of prosecution and, at the time that the proceeding was dismissed on 10 February 2023:

(a) all of the Applicant's evidence had been heard by the Tribunal;

(b) the Applicant claimed to be 'unfit to proceed' with the balance of the VCAT hearing, in accordance with his medical certificate dated 10 December 2022; and

(c) the relevant events had occurred approximately six years earlier, the proceeding had been commenced three‑and‑a‑half years earlier and the hearing had commenced almost two years earlier;

and therefore no procedural unfairness (statutory or otherwise) or bias (actual or apprehended) occurred.

95 The Respondent further pointed to the following matters:

(a) although the Tribunal gave preliminary views about the Applicant's claims, the Tribunal did not make a final decision with respect to his application;

(b) the Applicant's complaints about procedural fairness not being provided at the hearing are not relevant to the s 76 application because that application was determined 'on the papers' and both parties submitted written submissions; and

(c) the Applicant does not identify an error of law with respect to the determination of the s 76 application itself.

96 The Respondent submitted that it did not accept the claim that the Applicant was unable to resume the hearing due to his mental health. It took the view that many of the issues were caused by the Applicant's unwillingness to appear before the Tribunal.

97 It was submitted that no bias arose upon the Tribunal's decision on the s 76 application, nor in respect of the Tribunal's handling of the earlier hearings. The Respondent emphasised that bias and procedural fairness are context sensitive questions, and that when the Transcript is considered in its entirety, these grounds have no real prospect of success.

98 In respect of the discrimination issues, if they remained relevant, the Respondent submitted that, to the extent the alleged events occurred, the actions of the Respondent's employees involve the performance of the statutory duties and obligations set out in the Corrections Act and Regulations. On this basis, an exception under s 75 of the EO Act applies.

99 The Commission intervened in this proceeding as of right pursuant to s 40(1) of the Charter and the orders made by the Court on 2 May 2024 to grant of leave to intervene pursuant to s 159 of the EO Act.

100 The Commission's intervention was confined to making submissions in respect of the following issues:

(a) the proper construction of s 44 of the EO Act and its interaction with the Corrections Act and the Charter;

(b) whether before deciding that an act is incompatible with s 8(3) of the Charter the Tribunal must identify that discrimination under the EO Act has occurred;

(c) the proper construction of s 10(b) of the Charter and in particular whether it is open as a matter of fact for a failure to prevent or respond to assault and racist taunts to amount to 'cruel, inhuman or degrading treatment';

(d) the meaning of 'arbitrary' for the purpose of s 13(a) of the Charter; and

(e) the scope of the right to freedom of association under s 16(2) of the Charter.

101 The Commission did not seek to be heard on the application of the EO Act, the Charter or the factual matters underlying the appeal.

102 The issue in respect of s 44 of the EO Act was the main interest of the Commission. It supported the Applicant's submissions which contended that, in accordance with s 32(1) of the Charter, the meaning of 'services' in s 44 of the EO Act should be given a broad and beneficial interpretation that is compatible with s 8 of the Charter. It was argued that this position is consistent with the effect of s 32(1) of the Charter and the jurisprudence of the Court.[70] To interpret s 44 in a way that is compatible with the right to equality in s 8 of the Charter means that it should be given the widest possible effect as a provision that prohibits discrimination and promotes equality.[71] The Commission supported a construction of 'services' that leaves room for the application of s 44 of the EO Act to those providing 'services' to persons in custody. A blanket denial of the class of persons from the scope of the EO Act by reason only that the 'services' are performed by Corrections Victoria is not a construction compatible with the right to equality. It is also a construction inconsistent with the object and purpose of the EO Act.[72]

103 Otherwise, the Commission supported some of the other submissions of the Applicant, such as submissions concerning the process in respect of s 8(3) of the Charter, and the possibility for the application of s 10(b) of the Charter in circumstances of assault and racial abuse. Whilst the Commission made no submissions in respect of the factual finding made by the Tribunal, it submitted there is authority to support the proposition that the conduct complained of is conduct of a kind capable of engaging the right in s 10(b).[73] It was submitted that racial taunts and abuse also clearly fall within the definition of 'discrimination' in ss 7(1)(a) and 8 of the EO Act as unfavourable treatment on the basis of race.[74]

104 The Commission contended that the Tribunal erred in law in making various findings in respect of the Charter, including the findings that:

(a) there was no evidence which raised any concerns of the rights under s 13(1)(a) of the Charter were limited arbitrarily or unreasonably in any way; and

(b) the evidence did not identify the Applicant's right to privacy under s 13(k) of the Charter was subject to the limits other than those permitted by s 7(2) of the Charter.

105 The Applicant's submissions at [174] set out numerous instances of interferences with the Applicant's privacy correspondence within the scope of s 13(a) which were repeated and relied upon by the Commission.[75]

106 Other submissions were made in respect of the scope of s 16(2) of the Charter (right to freedom of association), including that the association does not need to be a formal one. It was submitted that the protections afforded by s 16 would be internally inconsistent if informal peaceful assembly was protected under s 16(1) but informal association with other persons was not protected under s 16(2).

107 However, as will be seen, many of these submissions fall away upon a consideration of the appeal.

108 As summarised above,[76] the Applicant has raised 14 questions of law and 32 grounds of appeal, which broadly fall into the categories of:

(a) whether there was a failure to exercise jurisdiction under s 108 of the VCAT Act (Question 1);

(b) a denial of procedural fairness in the manner in which the Tribunal afforded the Applicant an opportunity to be heard (Questions 2 to 5, 7 to 9, 11 and 12), including where:

(i) he is a self‑represented litigant;

(ii) he had some inability to participate by reason of mental disability;

(iii) the Tribunal has an obligation to provide a fair hearing pursuant to s 98 of the VCAT Act; and

(iv) there was an inconsistency with s 100 in relation to the right to cross‑examine; and

(c) an alleged misapplication of cl 18 of sch 1 of the VCAT Act (Question 6);

(d) an alleged misconstruction of s 44 of the EO Act - i.e. whether the Respondent provided 'services' to the Applicant (Question 10);

(e) an alleged misapplication of s 76 of the VCAT Act (Question 13); and

(f) actual or apprehended bias (Question 14).

109 I have grouped my analysis of the questions of law and related grounds of appeal in this manner.

110 A theme which runs through the questions and the grounds in relation to fairness is an allegation that the Applicant's Charter rights have been adversely affected by the Tribunal's processes and decision. In particular, s 8 (right to recognition and equality before the law) and s 24 (right to a fair hearing) were relied upon.

111 The submissions of the Applicant both in chief and by reply were extensive. I was also assisted by the submissions made on behalf of the Intervenor. However, given the view I have taken on the s 76 issue, the balance of the matters raised fall away to a large extent and are not determinative of the proceeding, the appeal being one in respect of orders for want of prosecution.

112 Realistically, the framework of this appeal is much more confined.

113 Stripped back, the issues before the Court in reviewing an order of the Tribunal on appeal are as follows:

(a) What is the jurisdiction of the Court on an appeal under s 148 of the VCAT Act?

(b) What was the order made?

(c) Did the Tribunal apply the appropriate test in making that order?

(d) Did the Tribunal make any other error of law in making that order?

114 This links to Question 13, which queries whether the Tribunal applied the correct test in making a determination under s 76 of the VCAT Act. As I have indicated, the s 76 issue is central, being the provision upon which the order subject of the appeal was made.

115 An appeal lies on a question of law only, from an order of the Tribunal in the proceeding. The Order made by the Tribunal here was that the proceeding be summarily dismissed pursuant to s 76 of the VCAT Act for want of prosecution. The appeal must not lose sight of this.

116 The Court may only grant leave if it is satisfied that the appeal has a real prospect of success. The term 'a real prospect of success' has been well established to mean that the Court may only grant leave if the appeal has a 'real as opposed to a fanciful' chance of success.[77]

117 The Court retains a discretion under ss 148(1)(b) and (2A) to refuse to grant leave to appeal even if an appeal has a real prospect of success.[78] This is because s 148(1) confers a discretion and an applicant must persuade the Court to exercise that discretion in its favour. Factors that may weigh against the exercise of discretion, even if the Court is satisfied that there is a real prospect of success, include whether the proposed appeal would be futile or of limited practical impact or where the claimed error of law made any difference to the VCAT order.[79] It is open to the Court in considering the question of leave to appeal to first address discretionary factors which may be relevant to the grant of leave, regardless of an assessment of the applicant's prospect of success.[80] In an appropriate case, leave could be refused without consideration of whether the appeal has a real prospect of success.[81]

118 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. This means justice to all parties, not only the applicant for leave.[82]

119 By reason of s 117(6) of the VCAT Act, the reasons for an order form part of that order. However, it is the order itself that must be affected by legal error and it is not enough that there is an error in the reasons if that error does not affect the order. There is no general vitiation as to the reasons and opinions provided for by s 148 of the VCAT Act.[83]

120 Invocation of s 24 of the Charter does not alter the test for leave.[84]

121 Where there are allegations of a breach of procedural fairness, it has been held that this raises issues of public interest, in addition to those which arise between the parties, and this is a relevant consideration in the leave application.[85]

122 The importance of the question of law in respect of which leave is sought may be a consideration, however, where there are not real prospects of success, the Court's discretion would not be enlivened.[86] Further, where a question of law has no real prospect of success, the public importance of the question will be diminished.

123 The question of delay, both in terms of time taken when the underlying conduct took place and the time it would take to resolve the matter if it was remitted to the Tribunal, are said to be relevant as to whether or not it would be just to grant leave to appeal.[87]

124 With this context in mind, I will now deal with each of the 14 questions of law raised by the notice of appeal. As indicated, some of these questions attract detailed analysis and some essentially fall away. Consequently, I will deal with many of the issues raised in summary form, save that more detail shall be provided in respect of the procedural fairness and bias complaints as they are relevant to the disposition of the s 108 (failure to exercise jurisdiction) issue.

125 Each of the 14 questions of law are stated in full above at [67].

Question 1 - Non‑consideration of the s 108 application

126 It is clear from the Tribunal's Reasons that there was no formal consideration of the s 108 application. The s 108 application was based on allegation of bias and procedural fairness.

127 The Respondent has conceded this question of law and argues that the proceeding could be remitted to the Tribunal on this basis alone. This is opposed by the Applicant and the Intervenor.

128 The purpose of s 108 is to deal with procedural fairness and bias claims prior to the determination of the proceeding. This is clear from the limitation in s 108 that an application can be made any time before the determination of the proceeding. The s 108 application in this case was made prior to the determination of the proceeding.

129 In the context of the statutory framework - and given my below findings as to bias and procedural fairness - even if there is a demonstrated error of law, it is not obligatory for the Court to grant leave to appeal[88] or (where leave is granted) to allow the appeal and remit the proceeding back to the Tribunal. The consequential orders to be made are in the broad discretion of the Court pursuant to s 148(7) of the VCAT.[89] In this regard, considerations of utility, efficient use of resources and the interests of justice must be considered.

130 As I have set out below, I am not satisfied that the grounds and questions of law which rely on bias and procedural fairness have any substance. In such circumstances, there is little utility in returning the proceeding to be dealt with again by the Tribunal in the face of this conclusion.

131 Further, it would be a manifest waste of resources to do so. Given the Tribunal's observations as to the significant evidentiary and procedural hurdles facing the Applicant, the further passage of time only elevates the concerns expressed by the Tribunal as to the consequences of delay.

132 Thus, even though there has been a procedural failure, in my view it is not of such a character that there is any utility in remitting the proceeding on this ground. What I have said above at [117]-[118] is pertinent in this regard. The exercise in considering leave to appeal requires a nuanced balance of considerations and a neutral assessment of what is just in all of the circumstances.

133 One of the relevant considerations open to the Court in granting leave is delay. Given the delay between the time of the alleged complaints (being between one and five years before the claim was made in July 2019) and the current time (being six years later than that), and there being no evidence that the Applicant is in any position to participate sensibly in further proceedings at the Tribunal, remittal on a question of bias or breach of procedural fairness is totally unwarranted. It would not be a proper exercise of discretion under s 148, nor in the interests of justice overall, to return the matter for determination on the s 108 application. I am reinforced in this view by my findings on the substantive issues raised in this appeal in respect of bias and procedural fairness.

134 Question 1/Ground 1 does technically engage s 148(2A) of the VCAT Act such as to require a granting of leave to appeal. However, unless any other more impactful grounds are made out, I am of the view that I should exercise the discretion in s 148(7) to dismiss the appeal.

Questions 2 to 5, 7 to 9, 11 and 12 - Procedural fairness and related grounds

135 These questions all proceed on a false premise that there was a determination of the merits of the Applicant's claims made by the Tribunal. This is simply incorrect - the decision made, and the decision now under appeal, was a determination of a s 76 application for want of prosecution.

136 The principles which apply to the exercise of discretion to dismiss for want of prosecution are set out in the summary of the Tribunal's Reasons at [55] and [63] above, and are further dealt with below in respect of Question 13 at [173]-[183].

137 Whilst it is not a requirement to consider the merits, it is also not wrong to do so. In the task before the Tribunal of determining a s 76 application, the Tribunal may formulate an informed but preliminary view of the claim. The Tribunal is to be guided by the applicable statutory provisions, including cl 18 of sch 1 of the VCAT Act.

138 There is no mandatory requirement (in a Peko‑Wallsend[90] sense) to consider the merits of the underlying claim in a s 76 application at VCAT.[91] That is not to say that the merits are prohibited from being considered.

139 It is clear on a fair reading of the Tribunal's Reasons that the Tribunal expressed preliminary views as to the legal and evidentiary issues facing the Applicant's case. Reading the decision as a whole, it is clear that the determination was made on proper consideration of the relevant matters which support a s 76 determination. There is no lack of procedural fairness in form or substance. There is no obligation for the Tribunal to consider the merits of the underlying claim in making a s 76 determination. Insofar as there was an expression of a view as to the merits, it was a preliminary one and, if there was error, it is not an error which affects or is material to the s 76 application.

140 Rather, the Tribunal in its Reasons has indicated the evidentiary and legal issues which faced the Applicant given the stage in which the proceeding had reached. In particular, his re‑litigation of matters which had already been resolved indicates a lack of capacity of the Applicant to prosecute his claim notwithstanding the assistance of the Tribunal.

141 The Applicant, in relation to Question 2, specifically took issue with the s 76 application having been decided on the papers. However, this is a method of hearing which is open to the Tribunal to adopt and was, in all the circumstances, the appropriate course for the Tribunal to take. The Tribunal gave the parties an opportunity to be heard by directing their submissions on the issue to be made in writing, which opportunity they both undertook. The Tribunal had both parties' submissions before it. There is no procedural or legal error in this course.

142 Question 2 and the related grounds (Grounds 2 and 3) are not made out.

Questions 3 and 4 - Opportunities to make submissions and cross‑examine

143 Questions 3 and 4 are related and can be considered in unison.

144 When the whole of the trajectory of the proceeding is considered in the context of the Tribunal's powers and duties under the VCAT Act, there is no substance to these questions.

145 First, as I have said in relation to Question 2, the alleged consideration of the merits was expressed to be preliminary views as to the obstacles facing the Applicant and made in the context of an application under s 76. As a consequence, as with a number of other grounds, these complaints are based on a misconception that the Tribunal made findings in respect of the merits of the Applicant's complaint.

146 Second, the Tribunal has an obligation to accord procedural fairness but that concept is a relative one. It is also one which is to be assessed in the context of the specific statutory provisions which are relevant to the Tribunal's functions and procedures.

147 The provisions of the VCAT Act grant the Tribunal a large degree of procedural flexibility. The Tribunal must 'act fairly and according to the substantial merits of the case'.[92] It may regulate its own procedures.[93] The Tribunal may make such directions as it deems appropriate in the circumstances.[94] It must conduct each proceeding with as little formality and technicality and determine each proceeding with as much speed as the requirements of the VCAT Act, the enabling enactment and proper consideration of the matters before it permit.[95]

148 Importantly, s 102 of the VCAT Act provides that the Tribunal must allow a party a reasonable opportunity to call or give evidence and to examine, cross‑examine or re‑examine witnesses. It is to be noted that this is a 'reasonable opportunity' and, as such, is not one which can be dictated by any party nor that is open‑ended or absolute.[96] A reasonable opportunity to cross‑examine witnesses is not an endless opportunity to do so.[97] It is a matter for the Tribunal to determine what a reasonable opportunity is in the circumstances, particularly in light of s 98(1)(d) which directs the Tribunal to determine each proceeding with relative expedition.

149 Also of particular note is the discretion available to the Tribunal in s 102(2) to refuse to allow a party to call particular evidence, if the Tribunal considers there is already sufficient evidence of that matter before the Tribunal.

150 Consequently, consideration of the question of whether there was a reasonable opportunity to cross‑examine must be viewed in light of the broader circumstances and powers granted to the Tribunal. Whilst s 102(1) sets the general expectation with respect to cross‑examination, it is subject to both s 102(2) and the general procedure of s 98. Therefore, it is within the Tribunal's discretion to limit the submissions of the parties and the evidence, including the extent of cross‑examination, or limit the witnesses who otherwise are sought to be called or cross‑examined.

151 This is particularly so where a self‑represented litigant is involved in a proceeding, as is very commonly the case in proceedings in the Tribunal. A self‑represented litigant commonly requires some direction and assistance in order to present their case in a manner which is both relevant and of assistance to the decision maker.

152 In the circumstances of this Applicant, the transcript and audio recording demonstrate the repetition and resort to irrelevancies by the Applicant and the Tribunal's patient attempts to direct him towards submissions and cross‑examination relevant to the facts and issues in question.

153 Whilst at times the Tribunal was direct and forceful, such direction and emphasis was clearly necessary given the amount of time and the resort to repetition and irrelevancies which peppered the Applicant's case.

154 In Doughty‑Cowell v Kyriazis ('Kyriazis'),[98] Mr Kyriazis was self‑represented on his appeal to the County Court against his convictions on two minor traffic offences, before Judge Chettle, and subsequently complained of unfairness and bias. The Supreme Court at first instance granted Mr Kyriazis' application for judicial review, concluding that the County Court had not accorded him a fair hearing and was guilty of ostensible bias. The Court of Appeal reversed this decision, finding that whilst Mr Kyriazis was 'articulate', he had in the County Court displayed a 'remarkable ... level of hostility, anger and aggression' directed towards the Court.[99] Judge Chettle had been 'calm and patient' (if at times reasonably frustrated) and 'there was nothing more his Honour could have done to ensure a fair hearing', having provided Mr Kyriazis with 'all of the assistance he could reasonably expect'.[100]

155 The opening paragraphs of Kyriazis succinctly summarise the principle to be drawn from the decision:[101]

Ensuring a fair hearing for an unrepresented litigant can present formidable difficulties for a court. Their needs, and their attitudes towards the court, vary across a wide spectrum. At one end of the spectrum, the litigant may be inarticulate, or anxious, or distressed, and in need of considerable assistance in order simply to understand the process in which he/she is involved. At the other end, there are litigants who are variously articulate, strong‑minded, stubborn, dismissive of legal advice and, very often, unwilling to accept judicial authority.

The obligation of a court to ensure a fair hearing is undoubted. The content of that obligation varies, however, with the circumstances of the case and ― in this context ― according to the particular capabilities and attitudes of the self‑represented litigant.

156 Whilst I do not suggest in any way that the Applicant at VCAT displayed the same level of inappropriate behaviour or aggression as Mr Kyriazis did in the County Court, I consider this case on fours with Kyriazis in the sense that Judge Jenkins was patient with the Applicant and afforded him appropriate procedural fairness in all of the circumstances.

157 I have reviewed the audio recording of the hearing at the time stamps indicated by the Applicant and additional phases.

158 It is clear from the manner of the Tribunal that the Tribunal member was empathetic, patient and attempted to assist the Applicant in the presentation of his case so as to make it relevant and directed to the principles in the questions of law and the evidence, to support the elements of the courses of action he complained of. It is also obvious that, after many days of hearing and assistance by the Tribunal, by the completion of the Applicant's case, Judge Jenkins had more than sufficient evidence upon which to form her preliminary view, as she expresses in the Tribunal's Reasons.

159 The principle in Kyriazis is that a self‑represented litigant will be provided with leniency and assistance commensurate with their 'capability and attitudes'. In such circumstances, the leniency, assistance and largesse of the Tribunal cannot be infinite. The Tribunal must make an educated assessment of the 'substantial merits' of a case and ensure that the management of the proceeding complies with the overarching expectations in the Tribunal setting, as embodied in ss 97 and 98 of the VCAT Act.

160 In my assessment, the Tribunal member provided significant assistance, empathetic encouragement and direction, and fulfilled her obligation in all of the circumstances to provide for a fair hearing. In particular, the manner in which the Tribunal managed the last day of the hearing is not inconsistent with the Tribunal's obligation to be efficient and deal with the real substance of the matter.

161 The Tribunal was entitled to limit the Applicant's repetition and irrelevant submissions and cross‑examination. It is clear that the Tribunal found no utility in the Applicant's repetition and inability to remain relevant to the considerations which supported his claim. In particular, there is no error by way of breach of the rules of natural justice or procedural fairness in the manner in which the Tribunal directed the Applicant about the relevant matters and the amount of time being taken by the Applicant on irrelevant matters, thus requiring her direct intervention. The Tribunal's conduct of the matter was, as in Kyriazis, consistent with the Applicant's capability and attitudes. This includes matters related to his mental health. Judge Jenkins was appropriately compassionate, and ultimately balanced such considerations with the procedural requirements of the VCAT Act. In this regard, I do not accept the Applicant's submission, summarised above at [89], that any of the particular procedures in the VCAT Act in respect of persons requiring specific assistance were not met.

162 Questions 3 and 4 and the associated grounds of appeal (Grounds 4 to 7) are not made out.

Question 5 - Opportunity to make submissions on cl 18 of sch 1

163 In respect of Question 5, I echo the findings I have just made in respect of Questions 3 and 4 and procedural fairness, which was afforded. There is a brief additional matter to emphasise in relation to Question 5.

164 The Applicant was aware of the category of application brought against him, being a s 76 application for want of prosecution, and was given a fair opportunity to prepare his case in that respect. The Applicant was aware that the Respondent's s 76 application was in part premised upon delay, and had access to the Respondent's submissions in support of the application in this regard. The submissions made by the Applicant on the s 76 application in response to the delay issue, despite cl 18 of sch 1 not being directly named by the Respondent, can be considered to be equally responsive to cl 18. The issues are one and the same. All that cl 18 does is empower the Tribunal to (in its discretion, noting the word 'may') draw a statutory line as to when the delay is considered unreasonable.[102]

165 Question 5 and the related grounds (Grounds 8 and 9) are not made out.

Question 7, 8, 9, 11 and 12 - Charter, EO Act and RRT Act grounds

166 These questions and associated grounds are misconceived, being falsely premised on a view that the Tribunal determined the merits. As with Questions 2 to 5, it is important that the observations by the Tribunal in respect of the evidentiary and legal hurdles facing the Applicant were made on the basis of expressing a preliminary view. As previously set out, the Tribunal was not required to make a finding in respect of the merits in determining this s 76 application. Therefore, I am equally not required to consider any of the substantive issues in respect of the Charter, the EO Act or the RRT Act.

167 Question 7, 8, 9, 11 and 12 and the related grounds (Grounds 12 to 15 and 20 to 27) have no substance and are not made out.

168 Whilst Question 6 raises a discrete issue in respect of cl 18 of sch 1 of the VCAT Act (as compared with Question 5), there has been no misconstruction or misapplication of this provision. Clause 18 again emphasises the discretionary nature of the decision before the Tribunal in this case. The clause 'may' be invoked.

169 Again, all that cl 18 does is empower the Tribunal to choose to draw a line as to when the delay in an EO Act proceeding is considered unreasonable to prevent injustice.[103] There is no 'test' to apply other than a strict consideration of whether the application was made more than 12 months after the alleged contravention. The only other consideration is whether to exercise the discretion at all, which will turn on the facts of the case.

170 Question 6 and the grounds related to it (Grounds 10 and 11) are not made out.

Question 10 - Provision of 'services' under s 44 of the EO Act

171 I note that whilst there is a serious question of ongoing jurisprudential controversy in respect of whether the Respondent is subject to the EO Act - on the operation of s 44 in the context of the provision of 'services' - I do not consider that this is a good choice of vehicle to ventilate that argument. The issue is not germane to the Order made by the Tribunal. As such, it is not necessary or appropriate for the Court to make a determination on this issue. Any utility in this Court's view of the matter will be significantly diluted by the factual matrix within which this appeal lies, rendering it obiter at best. Whilst the Tribunal in its Reasons expressed some preliminary views on this issue, there is no need for me to do so.

172 Question 10 and the grounds pertaining to this issue (Grounds 16 to 19) are not made out.

Question 13 - The test and alleged error in respect of the s 76 application

173 As indicated above at [113]-[114], the question of whether the Tribunal applied the correct legal test in respect of s 76 of the VCAT Act is a question capable of exposing the VCAT Orders to an appeal under s 148. Any other error of law exposed in the Tribunal's decision in this respect would be equally capable.

174 VCAT does not have a general or inherent power to dispose of a proceeding in a manner akin to strike out or summary dismissal without conducting a hearing of the merits.[104] The power to summarily dismiss for want of prosecution resides in s 76 of the VCAT Act.

175 Additionally, cl 18 of sch 1 sets a time limit that can be invoked where reasonable to dismiss an EO Act claim for want of prosecution. As I have indicated, cl 18 does not impose a mandatory limit but provides a discretion to prevent injustice due to delay.[105]

176 Clause 66K of sch 1 provides a similar discretion in relation to the dismissal of applications under the RRT Act, and is of equal utility in dispensing justice.

177 Section 76 does not identify any specific considerations required to be taken into account. However, the interpretation and application of the provision thus far by the Tribunal has been to take into account similar considerations as to the courts in determining whether to dismiss the proceeding for want of prosecution.

178 The overriding consideration is the interests of justice in the Court's ability to control its processes to ensure those interests are not compromised. Though not a fixed or immutable list, from the authorities the following matters have been established as being relevant considerations:[106]

(a) whether there has been an inordinate and inexcusable delay by a party in commencing or taking a step in the proceeding;

(b) the length of the delay;

(c) the explanation for the delay;

(d) whether any default was intentional or contumelious;

(e) whether the delay means there will be a substantial risk that the fair trial will not be possible;

(f) any prejudice to the Respondent that is caused by the delay including prejudice if the action is allowed to proceed notwithstanding the delay;

(g) any hardship to the Applicant if the matter were dismissed for want of prosecution;

(h) the conduct of the Respondent; and

(i) case management considerations and questions of proper use of the Tribunal resources.

179 Section 76 does not require the Court to determine the merits of the underlying claim in considering an application under that provision.[107] As I have said above in relation to Question 2, in the context of this application, that the Tribunal expressed any views at all (expressed to be preliminary or otherwise) as to the underlying merits of the proceeding will not amount to an error of law. The Tribunal's Reasons fundamentally rely on the issue of delay and the ability to ensure a fair hearing given that delay. Observations in relation to the law or the merits of the Applicant's case in respect of the law fall away. In this sense, the merits‑related issues raised by the Applicant are equally not supportive of Question 13 as with the procedural fairness grounds.

180 That is not to say that the merits of the underlying case will never be open to be part of the overriding considerations in a s 76 application. Rather, one can envisage in the exercise of discretion to dismiss for want of prosecution a submission that the merits of a particular case were so meritorious it would be an injustice to dismiss the proceeding. However, in the context of the accepted approach to the applicable exercise of discretion, the key considerations will always be the delay, the reasons for delay and the consequences of the delay.

181 The existence of the 12‑month discretion in cls 18 and 66K of sch 1, in respect of the EO Act and the RRT Act, demonstrates the centrality of issues of delay and timing to s 76 applications. In my view, this suggests a legislative intention that matters brought pursuant to these enabling provisions ought to be brought promptly. This also suggests that the prosecution of the proceeding ought be undertaken with some promptness. The effect of the time lag between the alleged incidents complained of - being between three and seven years at the time it was before the Tribunal in 2021 - alone provides grounds for serious concern that a fair hearing to all parties could be conducted. This was a relevant and valid concern for the Tribunal.

182 The Tribunal identified the issue of delay, the reasons for delay and the impact on the ability to have a fair hearing given the time which had elapsed and the uncertainty surrounding the Applicant's ability to continue the hearing as considerations it took into account and gave weight to.

183 There is no error of law identified in the Tribunal's consideration of the application pursuant to s 76. Question 13 and the associated grounds (Grounds 28 and 29) are not made out. Given that, as I have stated, Question 13 is the most on point question of law posed in this s 148 appeal, this finding is sufficient to dispose of the appeal. However, for completeness, I will consider the final issue, bias.

184 The test for apprehended bias is well established, being whether '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'.[108]

Applicant v Respondent

At a glance

Court

Decision date

Before

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Judgment (258 paragraphs)

Parties

Legislation Cited (7)

Cases Cited (12)