(b) in correspondence between the applicants and the respondents' legal practitioner after the compulsory conference, the applicants had asked for the Deed to be amended or replaced to give them a release, and that request had been refused. As a deed can be varied by agreement, but one side of this Deed had refused an amendment, the effect of the applicants' application was to seek an Order from the Tribunal varying the Deed. In the absence of extraordinary vitiating circumstances such as fraud, which were not present in these proceedings, no such Order would be made;

(c) to the extent that the application could be confined initially to be an application simply for reinstatement of the proceedings, the applicants' release of the respondents in the Deed would of course be relied on the respondents as a defence in the reinstated proceedings.

1. The application was vigorously pursued by the applicants, and so it is necessary to set out my reasons for dismissing the application in more detail.

1. Mr Caspersz and Ms Wang are the parents of two children. The children were enrolled at a Catholic school ("St Gregory the Great Primary School").

1. Mr Caspersz and Ms Wang made certain complaints, and on 23 September 2019 Mr Caspersz and Ms Wang issued Civil Claims List proceeding C7173/2019 and Human Right List proceeding H344/2019.

1. There can be an overlap between Civil and Human Rights proceedings, such as when a consumer pays fees to acquire services, and the consumer alleges that the service supplier discriminates against them, both contrary to the Equal Opportunity Act 2010 and in breach of the contract or obligations under consumer law. To be practical, VCAT seeks to deal with such matters by processing the two proceedings together or by striking out one of them but allowing all issues to be ventilated in the other, as appropriate in the particular dispute.

1. In the initiating Application in C7173/2019, Mr Caspersz and Ms Wang and their two children were named as the applicants, and "Anthony Ireland (business name) St Gregory the Great Primary School" was named as respondent. The School's ABN was inserted in the Application form. Registry's data entry practices in the Civil Claims List resulted in the respondent being named, in the heading of VCAT documents in C7173/2019, as "St Gregory the Great Primary School ABN 34 553 286 122". Mr Caspersz, Ms Wang and their two children were named as the four applicants.

1. In the initiating Application in H344/2019 Mr Caspersz was named as the only applicant, and "St Gregory the Great Primary School" sans the ABN was named as the only respondent. Registry's data entry practices in the Human Rights List resulted in three respondents being named, in the heading of VCAT documents in H344/2019: "St Gregory the Great Primary School", "Catholic Education Melbourne" and "Catholic Archdiocese of Melbourne".

1. There could be some fine points of procedure as to whether the respondents were correctly and accurately named, and even whether "Catholic Education Melbourne" is a legal entity or whether it is in fact a name of an organ of the Catholic Archdiocese of Melbourne. Nevertheless, I would say that the parties knew what the dispute was about and who were intended to be parties to the proceedings. If there were technical errors in the names of respondents, they were irregularities which could be corrected if necessary.

1. From an early stage VCAT dealt with the two proceedings together. Relevantly, VCAT held a mediation in both cases in February 2020, and a compulsory conference on 23 September 2020.

1. The compulsory conference was held online, using Zoom, because Covid-19 restrictions would not allow face-to-face meetings.

1. Both cases were settled at the compulsory conference. A Deed of Settlement has been executed by the parties (covering both proceedings); the steps required of the parties under the Deed have been performed; and Mr Caspersz now applies to reinstate both proceedings.

1. The presiding Member at the compulsory conference, Dr R Wilson, made an Order by consent in each proceeding in these terms:

1. The proceeding is struck out with a right to apply for reinstatement to enforce the terms of the Deed of Settlement agreed by email by the parties on 23 September 2020.

1. The Deed of Settlement was drafted by the respondents' legal practitioners and it names Mr Caspersz, Ms Wang and the two children as parties and calls them the "Releasors", and Monsignor Anthony Ireland as Representative of St Gregory The Great Primary School, Catholic Education Melbourne and Catholic Archdiocese of Melbourne as the "Releasees".

1. Without going into unnecessary detail, the Deed provided for the applicants to receive a payment and some communiqués in an agreed form, and in consideration of those benefits it provided for the applicants to give a release. Mr Caspersz is now concerned that the release given by the applicants extends beyond the named parties to the Deed. First, in clause A of the Recitals, which states that the two VCAT proceedings have been commenced and which broadly describes the nature of the applicants' complaints, the last sentence says:

"The Releasors also complain about various interactions between the Releasees and the Releasors including St Gregory The Great Primary School, its employees and agents in documents and evidence filed in the proceedings" (emphasis added).

1. All of those complaints described in clause A of the Recitals are defined as "the claims".

1. Secondly, clause 1 of the operative part of the Deed contains the release given by the applicants in the following terms:

"(T)he Releasors release and discharge the Releasees from all damages, costs, causes of actions, and legal proceedings whatsoever arising out of or in any way connected with the claims and the disputes underlying the claims, which the Releasors now have or have had the right to bring

against the Releasees or which the Releasors would have had the right to bring against the Releasees but for the execution of this Deed. This Deed extends to all employees, representatives, agents and associated entities and associated persons of the Releasees".

1. Whilst the Deed contains a clause on page 4 which says "The Releasees confirm ... that any and all debts owed by the Releasors to the Releasees as at the date of signing this deed are extinguished", the Deed does not include a full release of the applicants by the respondents (that is, by using a form of words such as "all damages, costs, causes of actions, and legal proceedings whatsoever arising ...") , or any release of the applicants by the respondents' "employees, representatives, agents and associated entities and associated persons".

1. To some extent Mr Caspersz' submissions were repetitive, and are based on perceived moral rather than legal arguments, but in fairness to him I paraphrase them below:

(a) The Deed is unfair because the applicants release the respondents but there is no cross release in return. Without a cross release the applicants could be sued by unknown parties. VCAT did not prevent a deed being prepared which did not contain a cross release.

(b) The applicants' understanding of the Deed was that there would be a cross release.

(c) The applicants did not have legal representation. The respondents' legal practitioners drafted the Deed. Before the final version of the Deed was executed, there had been negotiations over the terms of the Deed and, for example, some text from one of the agreed communiqués which had been suggested by Mr Caspersz were deleted by the respondents.

(d) The applicants were rushed, signed the Deed under duress, and did not have the opportunity to obtain legal advice.

(e) Section 114 of the Victorian Civil and Administrative Tribunal Act 1998 contains a time limit of 14 days.

(f) Mr Caspersz' emailed the respondents' legal practitioners at 9:36am on 25 September 2020 to show how the release clause was inappropriate. The clause implicitly contains a cross release.

(g) Mr Caspersz asserts that the respondents executed their counterpart of the Deed after he had asserted that the applicants wanted a cross release. The respondents have never denied that they executed the Deed after Mr Caspersz had sent his email of 25 September 2020 and accordingly Mr Caspersz asserts that the respondents did execute the Deed after that email.

(h) The applicants did not receive the executed Deed back from the respondents until a week after its date.

(i) It is unfair of the respondents to refuse to amend the Deed, or to not grant a release to the applicants, because on 2 October 2020 the respondents' legal practitioners emailed the applicants saying that the respondents had no intention of suing the applicants. However because the practitioners only wrote on behalf of their clients, and the words "employees, representatives, agents and associated entities and associated persons" cover persons who are not the practitioners' clients, that assurance is hollow.

1. In substance the respondents made the following submissions:

(b) Because the compulsory conference was held on-line, due to Covid-19 restrictions, the parties could not literally sit together and sign the Deed. Therefore at 5:37pm and 5:43pm on 23 September 2020 the respondents' legal practitioners and Mr Caspersz exchanged emails which confirmed their respective acceptance of the terms of the Deed[2], and thereafter the Deed was executed.

(c) The Deed is valid and enforceable, and only after the Deed was executed did Mr Caspersz begin asserting that the applicants sought to receive a release.

(d) If the VCAT proceedings were reinstated, the respondents would plead the Deed as a complete bar to the applicants' claim.

(e) The respondents deny that the Deed is unfair, or that the applicants did not have an opportunity to obtain legal advice. The parties had attended a one-day long mediation in February 2020, as well as attending the one-day long compulsory conference in September 2020, and in May 2020 the respondents' legal practitioners had sent the applicants a draft Deed of Settlement during negotiations. Clause 1 of that draft was in the same form as in the executed Deed, and so the applicants had the clause before them for around four months before executing the Deed. They had ample time to obtain legal advice on it.

(f) The respondents did not impose any pressure on the applicants to sign the Deed. It was simply a matter of the parties exchanging offers until finally the settlement agreement recorded in the Deed was reached.

(g) The respondents have offered to sign a document which would be to the effect that they give a full release to the applicants. However, the respondents could not purport to give a release which would bind other persons, such as teachers at the School. The legal practitioners could sign a document binding their clients, on the clients' instructions, but could not sign such a document binding person who were not their clients.

(h) It was important to the respondents that the applicants release teachers at the School, as well as the respondents, and it is legitimate to provide for such a release in a Deed.

(i) Objectively, Mr Caspersz has simply changed his mind. It is submitted that VCAT would not impose on the respondents new clauses of a Deed, because essentially Tribunals and Courts enforce agreements rather than imposing new ones. There is a public interest in litigation reaching finality and it would be inappropriate for VCAT to reinstate the two proceedings.

(j) If, though, VCAT was to reinstate the proceedings it ought be conditional on the applicants returning to the respondents the settlement sum that has been paid to them.

1. It is common ground between the parties that as well as the contents of the Deed having been accepted by the parties as evidenced by the exchange of emails at 5:37pm and 5.43pm on 23 September 2020, that the Deed was executed by all parties, and that the respondents have met their obligations under the Deed by paying the agreed settlement sum within time and issuing the agreed communiqués. So, there is no question of the Deed having been repudiated, breached or rescinded.

1. Paragraph 1 of the Order made 23 September 2020 expressly granted a very limited right to apply for reinstatement: to enforce the terms of the Deed of Settlement. Clearly, Mr Caspersz is not seeking to enforce the terms of the Deed. It follows he is not exercising a right under paragraph 1 of the Order. Instead he is seeking to extract from that paragraph only the words "The proceeding is struck out" and then to rely on an implied right to seek reinstatement of a proceeding which has been struck out. The applicants must demonstrate why the proceedings should be reinstated.

1. The applicants fail on all grounds, for the following reasons:

(a) The applicants have not established that the Deed is "unfair". Parties have freedom of contract, and they are able to choose to settle proceedings on terms. In a case in which applicants sue respondents for damages or other relief, and there is a settlement, it stands to reason that the respondents would require a release. Where the respondents have not asserted claims against the applicants, there could be no presumption that the applicants would be entitled to require a release. In any event, the Deed records the agreement which the parties freely entered into.

(b) It is a big question as to whether the Tribunal has an obligation to ensure that terms of a settlement are "fair", and that is further complicated by the fact that fairness can be in the eye of the beholder. In the Family Law Act 1975, a court exercising jurisdiction under that Act can make a consent order dividing property between parties, if the court is satisfied that the order is just and equitable. There is no expressly equivalent provision in the Victorian Civil and Administrative Tribunal Act 1998. Whilst such an order in a family court would contain the property division provisions, the Order made in this VCAT proceeding on 23 September 2020 did not contain the terms of the settlement: it only struck out the proceeding. This VCAT proceeding is not one in which the question of whether the Tribunal has an obligation to only allow cases to settle on "fair" terms should be determined, as objectively the provisions of the parties' Deed are commonplace.

(c) The applicants have not established any objective basis to support their alleged understanding that the Deed did or would contain a release in their favour. The document is in relatively plain text. It does contain the statement by the respondents that "any and all debts owed by the Releasors to the Releasees as at the date of signing this deed are extinguished", which would obviously cover outstanding school fees, levies and the like (if there were any). The applicants have the benefit of that statement. The presence of the statement is inconsistent with the applicants' allegation of understanding that the Deed would contain a release of them expressed differently.

(d) The applicants cannot benefit in this application from their decision not to retain legal practitioners. Mr Caspercz filed quite lengthy and detailed documents in the proceedings in the period before the compulsory conference and demonstrated an understanding of the position which the applicants were asserting. VCAT's procedures are designed to allow citizens to represent themselves in proceedings if they choose to do so. The Deed is not expressed in obscure legalese. It is clear from the documents filed by Mr Caspercz in this application that the words in the Deed were the subject of negotiation before the final version was agreed. Mr Caspercz conceded, for example, that the respondents had required the word "lies" to be deleted and that he agreed to that. There is no merit in this submission of the applicants.

(e) There is no objective basis for me to conclude that the applicants signed the Deed under duress.

(f) I do not accept that the applicants did not have the opportunity to obtain legal advice. The applicants' issued their two proceedings around one year before settling them in the compulsory conference. The parties participated in a one-day long mediation in February 2020.

(g) The applicants' reference to section 114 of the Victorian Civil and Administrative Tribunal Act 1998 is misplaced. That section concerns formal offers of settlement, the rejection of which may have an impact on the offeror's ability to seek costs. That it provides that a formal offer must be open for a certain length of time has no application to communications during a compulsory conference.

(h) Mr Caspercz' submission that the release clause in the Deed "implicitly" contains a cross release is plainly incorrect. It only provides for a release by the applicants of the respondents and their associates.

(i) Mr Caspercz' email to the respondents' legal practitioners at 9:36am on 25 September 2020 does not assist the applicants because it was plainly sent after all parties had accepted the terms of the Deed on 23 September 2020.

(j) The date on which the applicants may have received the executed Deed is irrelevant, given the exchange of emails at 5:37pm and 5:43pm on 23 September 2020 and the applicants' receipt of the benefits under the Deed.

(k) The applicants' criticism of the email of 2 October 2020 from the respondents' legal practitioners is irrelevant as the applicants have rejected that email.

(l) If the VCAT proceedings were reinstated, the respondents have a complete defence because of the Deed. Accordingly, the proceedings should not be reinstated.

1. The application for reinstatement of the two proceedings was misconceived and unwarranted. Mr Caspersz has put the respondents to the expense of opposing the applications and has made that an expensive exercise by the sheer volume of documentation that he has filed and served. The question of costs was not raised in the hearing before me, but it is appropriate that I reserve costs.

1. In each proceeding, the applicants' application for reinstatement is dismissed. Costs are reserved.

[1] In the hearing before me, Mr Caspercz also acknowledged that the applicants had never received a demand from any person within the respondents' camp.

[2] Paragraph 1 of the Order made 23 September 2020 refers to "the Deed of Settlement agreed by email by the parties on 23 September 2020". The emails were:

(a) an email from the respondents' legal practitioners to Mr Caspercz dated 5:37pm on 23 September 2020 saying, "Attached is the final deed of settlement. I Jason Newman, on behalf of the Respondents agree to the terms of the attached Deed of Settlement as though I had signed it. This email shall be taken to be evidence of my signing of the deed on my client's behalf"; and

(b) an email from Mr Caspercz to the respondents' legal practitioners dated 5:43pm on 23 September 2020 saying, "Confirmation of attached final deed of settlement prepared by Gilchrist Connell. I, Adrian Caspercz on the behalf of the Applicant's agree to the terms of attached Deed of Settlement as though I had signed it. This email shall be taken to be evidence of my signing of the deed".