Application for reinstatement of a proceeding which was struck out after a compulsory conference

Contract for the supply of education services between the respondent university and a fee paying overseas student - student completes all but one subject - completion of the subject requires the student to undertake a placement in a medical facility in which the student would undertake activities under supervision - placement terminated by the medical facility on the grounds of the student's conduct - two proceedings issued by the student in the Tribunal's Civil Claims List and Human Rights List against the university - proceedings processed together - proceedings settled after a compulsory conference by the execution of a Deed containing undertakings by the respondent to use its "best endeavours" to procure a third party to offer a placement to the applicant and a release by the applicant of the respondent - Tribunal proceeding struck out with a right to apply for reinstatement - applicant's application for reinstatement of the proceeding - applicant's submission that the Deed should be set aside by the Tribunal on the ground of innocent misrepresentation, which the applicant submits was within the Tribunal's power to order by applying equitable principles when exercising its jurisdiction - Herald and Weekly Times v State of Victoria [2006] VSCA 146 - speculation by Cavanough J in Tucci v VCAT & Athedium Pty Ltd [2010] VSC 425 that VCAT might be "required" to apply equitable principles in some circumstances - Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235, BC56000330.

Procedural irregularities - substance over form - respondent implicitly consents to the applicant giving evidence of matters that occurred in the compulsory conference - section 85, Victorian Civil and Administrative Tribunal Act 1998 - documents filed by the applicant personally, superseded by documents filed by her legal practitioners, statements and an affidavit supplemented by evidence given orally at the hearing of the application for reinstatement.

Kaur v Royal Melbourne Institute of Technology (Civil Claims) [2023] VCAT 1400

1. Each party is granted leave to be represented by a legal practitioner.
2. The applicant's application for reinstatement of the proceeding is dismissed.
3. Costs reserved.
4. Any application for costs must be filed by 9 February 2024, with a statement by the applicant for costs as to whether they seek a hearing or whether they seek to have the application for costs determined on the papers. An applicant for costs is not to file a "taxable bill of costs" with their application.

1. Ms Kaur was a fee paying international student at Royal Melbourne Institute of Technology ("RMIT"), in the School of Health Science, in 2017.
2. Ms Kaur issued this VCAT proceeding herself, without legal assistance, on 30 January 2018. In her initiating Application form Ms Kaur claimed $25,000.00 from RMIT based on the following brief description of the claim:

[page 1] she was relying on the Australian Consumer Law and Fair Trading Act 2012; and

[page 3] she paid high fees, but the "subject quality was very poor ... I got failed grade against the subject policy".

1. One would interpret the quoted words on page 3 of the Application form as conveying that Ms Kaur was alleging the following:

a) to the extent RMIT supplied the service of a course of education, it did not supply that service with due care and skill, contrary to its obligations under the consumer guarantee imposed by section 60 of the Australian Consumer Law (Victoria).[1] In this allegation the "service" could be the presentation of information in lectures and classes, the conducting of assessments and examinations, and the marking of such assessments and examinations. It is not unusual in VCAT proceedings for an initiating Application to only give a broad description of the basis of the claim, which must be replaced by Points of Claim in due course; > > b) to the extent RMIT supplied physical materials as part of the course of education, those materials were "goods" which were not of "acceptable quality" as required by the consumer guarantee imposed by section 54 of the Australian Consumer Law (Victoria).

2. Ms Kaur also issued a proceeding against RMIT in the Human Rights List of VCAT, which was given case number H14/2018. It is not unheard of for a student to issue two proceedings against an education body, in the Civil Claims List on contractual and consumer law principles and in the Human Rights List based on allegations of discrimination. Often the Tribunal will deal with the two cases together. That is what occurred in relation to Ms Kaur and RMIT.
3. On 13 February 2018, RMIT wrote to VCAT, asking that the two proceedings be dealt with together and be listed for a 'conciliation'. That term is not used in VCAT, but both mediations and compulsory conferences are used in the Tribunal, and the latter is akin to what would be called a conciliation in other venues. In practical terms, a compulsory conference is a private discussion between the parties to litigation, supervised by a Tribunal member, and is conducted on a without prejudice basis.[2]
4. The two proceedings were listed for a compulsory conference to be held on 26 February 2018. The Tribunal member who conducted the compulsory conference made an Order on 26 February 2018 adjourning both proceedings to an 'administrative mention' on 26 March 2018. In VCAT, an 'administrative mention' is a device by which parties are required to advise the Tribunal in writing of the state of their proceeding. An administrative mention is often ordered if parties settle their dispute "in principle" at a compulsory conference, but need time to prepare formal Terms of Settlement.
5. On 20 March 2018, Ms Kaur wrote to the Tribunal, asking that a directions hearing be listed in both proceedings. The Tribunal listed a directions hearing before the member who had conducted the compulsory conference.[3] At that directions hearing, on 10 April 2018, the member again adjourned both proceedings to an 'administrative mention', this time on 5 June 2018.
6. On 5 June 2018, an in-house lawyer of RMIT wrote to the Tribunal saying, "Please inform the principal registrar that this matter has settled. The (parties) have signed a Deed of Settlement and Release". By 18 June 2018, the Tribunal had not received any similar advice from Ms Kaur, and the registry wrote to her asking that she confirm in writing that the matter had settled and advise if she sought the matter being struck out with a right of reinstatement. Ms Kaur could have replied to the effect that the dispute was not settled. By 23 July 2018, Ms Kaur had not replied, and the Tribunal made an Order that the "proceeding is struck out with a right to apply for reinstatement".
7. On 15 October 2020, Ms Kaur filed a new initiating Application form, again without assistance from a legal practitioner. The Tribunal deals with many self represented parties and necessarily approaches procedural matters by emphasising substance over form. The Tribunal construed the new form as amounting to an application for reinstatement of this proceeding made under the Order of 23 July 2018.[4] The Tribunal listed a directions hearing on 14 April 2021 in proceeding C746/2018, for the purpose of hearing Ms Kaur's application for reinstatement, and it ordered Ms Kaur and RMIT to file and serve relevant documents before that directions hearing. Neither party appeared on 14 April 2021 and the presiding Member confirmed the Order of 23 July 2018.
8. On 11 November 2021, Ms Kaur applied to reinstate the proceeding, enclosing a doctor's report of 22 April 2021 - which could be seen as explaining her absence at the directions hearing on 14 April 2021 - and a typed narrative of six pages setting out the grounds of her application for reinstatement. In substance that narrative contained these assertions:

[page 2, second paragraph] she had studied for a Bachelor of Nursing, and had completed 23 subjects which included 656 hours of direct clinical placement.

[page 2, third paragraph] at her final nursing practical placement in January 2017, the relevant hospital unilaterally terminated the placement.

[page 2, third & fourth paragraphs] a nurse should check medications prescribed for a patient before administering them, but a clinical nurse educator in the hospital aggressively directed Ms Kaur, in the presence of other staff, to administer the medications first and check later. This caused Ms Kaur embarrassment, humiliation, upset and distress.

[page 2, fifth paragraph] Ms Kaur sent an SMS to RMIT seeking support on how to manage the matter.

[page 3, first paragraph] Ms Kaur does not consider RMIT to have taken any steps to investigate her legitimate concerns.

[page 3, second paragraph] Ms Kaur had a meeting with an RMIT "student rights officer", on an undisclosed date, but that officer made humiliating comments about Ms Kaur in front of some six RMIT teachers. RMIT then wrote to Ms Kaur accusing her of making comments about the hospital staff member "that seem to have no basis" and counselling her to "exercise caution when drafting future emails" and to avoid "making unsupported statements that might unfairly tarnish another person's reputation". RMIT then failed Ms Kaur in that subject.

[page 3, fourth & fifth paragraphs] RMIT did not investigate Ms Kaur's complaint about the hospital staff member.

[page 3, sixth paragraph & page 4, first paragraph] RMIT gave Ms Kaur another placement in July 2017 at an institution which Ms Kaur did not identify, but advised her that she needed to pass simulation before that placement. During a simulation class or exercise in a clinical lab, the RMIT clinical lab teacher told Ms Kaur that she would receive a fail grade again. Ms Kaur complained to RMIT about the clinical lab teacher, saying that she had been biased.

[page 4, second paragraph] RMIT gave Ms Kaur another placement in July 2017, in Sunshine. Ms Kaur alleges that the conduct of the RMIT clinical lab teacher referred to above already made her upset, and that the conduct of staff at this hospital in Sunshine during this placement made her feel ostracised, bullied and harassed. Ms Kaur wrote to RMIT about this but to her surprise she received a reply to the effect that if she sent another "emotive or distressing" email RMIT would terminate her from the placement, and RMIT insisted that Ms Kaur apologise to the educator at the hospital.

[page 4, fourth paragraph] RMIT sent Ms Kaur a notice of termination on 31 July 2017 with a report criticising her professional conduct, but Ms Kaur does not accept the document as being accurate.

[page 4, fifth paragraph] at a meeting with a teacher at RMIT, the teacher said Ms Kaur had been terminated at two placements and that the teacher could not place her at another hospital and that she should think about seeking another degree.

[page 5, first paragraph] on 19 August 2017 RMIT wrote to Ms Kaur, advising that it was normal process for a fail grade to be given in cases where a placement was terminated due to concerns about patient safety, and that it was not unusual for a placement to be terminated before a student could perform simulation. In a subsequent letter of 2 November 2017 RMIT said that under "preparation 5 policy" the student could be given a fail grade if they performed unsatisfactorily in simulation.

[page 5, second and third paragraphs] Ms Kaur compares a situation (a) in 2016 when her placement at a hospital was terminated but RMIT let her complete a simulation which she passed, and whilst RMIT made her perform a second simulation it required her to spend less hours than usual because it recognised the hours she had spent in the first simulation, with (b) the position in 2017 when, she asserts, her complaint about RMIT nursing staff led to her being deprived of performing simulation and then being given a fail grade.

[page 5, fifth paragraph] Ms Kaur quotes or paraphrases the criteria for passes or fails in the Clinical Assessment Tool. Ms Kaur interprets the text to mean that she was entitled to perform simulation if her performance at the formative assessment was unsatisfactory.

[page 5, subsequent paragraphs]. In substance Ms Kaur submits that in her settlement of her VCAT proceeding, RMIT "agreed to organise a last placement" so that she could finish her degree, but that in February 2019 RMIT advised that it was "unable to find a placement for (her) and had exhausted all possible avenues to give (her) a final placement to complete (her) studies". This text refers to the Deed of settlement entered into by the parties in relation to this VCAT proceeding.

1. Because it was unclear whether Ms Kaur had served the above documents on RMIT, a directions hearing was held on 20 June 2022. The presiding member directed the registrar to serve copies of Ms Kaur's documents, as well as the Orders of 14 April 2021 and 20 June 2022, on RMIT and adjourned the directions hearing to 31 October 2022. In making that Order, the presiding member adopted an email address for RMIT which Ms Kaur had supplied. The registrar's email to RMIT bounced back, and on 29 August 2022 the registrar wrote to Ms Kaur and required her to serve her documents on RMIT, on the basis that it was more likely that she knew RMIT's correct email address. On 29 August 2022, RMIT wrote to the Tribunal, advising that Ms Kaur had sent it the registrar's email of 29 August 2022, but not the copies of her documents. RMIT advised the registrar of a new email address and the name of the in-house lawyer who was now dealing with the proceeding.
2. Both parties appeared at the directions hearing on 31 October 2022, and a detailed timetable Order was made, which included the requirement that the parties file and serve Points of Claim and Points of Defence respectively. The presiding member directed that the reinstatement hearing be held on 9 May 2023, with an estimated duration of three hours.
3. Ms Kaur engaged legal practitioners, who filed Points of Claim on 16 January 2023 under the above Order. The Points of Claim clearly show that the legal practitioners took proper instructions on the events surrounding Ms Kaur's studies with RMIT, and the document sets out a chronological narrative of allegations which is broadly consistent with Ms Kaur's previous descriptions filed with the Tribunal, but in better detail. However remarkably in my view:

(a) the Points of Claim focus entirely on the Equal Opportunity Act 2010 (Vic), making no mention of the Australian Consumer Law and Fair Trading Act 2012 (Vic) or the Australian Consumer Law (Victoria), or even alleging that there was a contract or agreement between Ms Kaur and RMIT save for the most oblique reference in paragraph G(b) of the prayer for relief, in which "damages with respect to past and future economic loss in connection with tuition fees" were claimed; and

(b) the Points of Claim made no mention of the Deed of Settlement.

1. Ms Kaur's legal practitioners also filed written submissions on 16 January 2023 under the above Order. They were headed, "Applicant's submissions to reinstate proceeding and set aside Deed of Settlement".
2. A full copy of the Deed has been filed. In her legal practitioners' submissions, Ms Kaur states - correctly - that the Deed contained these provisions:

Clause 2.1(d)(i) The parties acknowledge and accept that [ Ms Kaur] must successfully complete the Placement in order to complete the Program.

Clause 2.1(d)(ii) RMIT shall use its best endeavours to arrange a Placement for [ Ms Kaur] that is suitable for [Ms Kaur] on the terms to be agreed between RMIT and the third party health organisation.

Clause 2.1(d)(iii) RMIT cannot guarantee that it is able to obtain a Placement for [ Ms Kaur], at the time, dates and for the duration, and in the desired setting, required for her to complete her Program, but it will use its best endeavours to do so.

1. In the submissions Ms Kaur also says that she remains excluded from the Bachelor of Nursing Program.
2. In summary, Ms Kaur's legal practitioners made these points in the written submissions:

a) RMIT breached, or did not fully comply with, its obligations under the Deed; > > b) Ms Kaur felt highly pressured to sign the Deed, pursuant to interactions with the member who conducted the compulsory conference and with RMIT's representatives and Ms Kaur's union after the compulsory conference; > > c) Ms Kaur would not have signed the Deed had she understood there was a "real possibility" of not being provided a placement; > > d) there was never a genuine prospect of Ms Kaur being provided with a placement; > > e) the steps which RMIT must take to obtain a placement for students were such that by August 2018 all placements for RMIT students for the second half of 2018 had already been allocated; of the 26 potential placements which in November 2018 were identified as being available in 2019, only 7 would be suitable for Ms Kaur;[5] 3 of those 7 were not available to Ms Kaur because a student could be excluded if - as was the case with Ms Kaur - they had previously been placed with a particular provider and/or had that placement terminated; and providers could refuse or be unable to provide a placement to a student, having regard to their own internal processes; > > f) the matters stated in the previous paragraph were not explained to Ms Kaur when negotiating the Deed. At paragraph 9, "Nowhere in the Deed does it state this requirement, nor why a placement in a non-acute 'mental health' or 'specialty' type setting is insufficient for [ Ms Kaur] to have subsequently met the requirements of the program"; > > g) at paragraph 10.2, "Many of the matters potentially determinative of whether [ Ms Kaur] could be afforded a placement were outside the control of RMIT or never adequately raised during negotiations with [her]"; > > h) in the heading above paragraph 12, that Ms Kaur "felt enormous pressure to settle the proceeding and this unduly influenced her decision-making at the time of signing the Deed". Following this paragraph, it was asserted that Ms Kaur was not legally represented at all relevant times, and at paragraph 13 an assertion was made as to an exchange in the compulsory conference. At paragraphs 14 - 22 it was asserted in broad terms that RMIT is a large and powerful organisation, and that the applicant was an international student who had limited exposure to, and understanding of, the Australian legal system. At paragraphs 14 and 16 Ms Kaur said she sought assistance after the compulsory conference from her union, and that she placed great weight on input provided by the union, as well as on the input by the Tribunal member and RMIT's representatives;

1. if the Tribunal set aside the Deed, it should then reinstate the proceeding so that Ms Kaur's rights could be determined by the Tribunal. At paragraph 26, "There is no apparent prejudice likely to be suffered by [RMIT] if this were done given [RMIT's] resources and openness to explore a resolution involving finding Ms Kaur a placement as a means of enabling her to complete the Program".
2. As the submissions were prepared by legal practitioners, it is noted that they include very general allusions, to "interactions" in the compulsory conference and "input" from the Tribunal member in the compulsory conference. The written submission is not evidence, and the submission only refers to these matters in very general and non-specific terms, and so by filing the written submissions Ms Kaur did not offend section 85 of the VCAT Act, which (omitting irrelevant text) says:

Evidence of anything said or done in the course of a compulsory conference is not admissible in any hearing before the Tribunal in the proceeding, except - where all parties agree to the giving of the evidence.

1. It is noted, of course, that many of the points made in the submissions go to Ms Kaur's alleged internal, subjective perceptions of events. As discussed below, in various ways the law of contract - which would apply to a deed of settlement - focuses on objective meanings rather than on the subjective perceptions of a party. These contractual principles create significant barriers to Ms Kaur's application.
2. On 2 May 2023, the parties submitted Minutes of Proposed Consent Orders, for the purpose of adjourning the hearing of 9 May 2023 and giving Ms Kaur the opportunity of filing an affidavit in support of her application. The Minutes also provided for RMIT to reply. On 8 May 2023, the Tribunal made an Order by consent, broadly consistent with these Minutes. It listed the application for reinstatement for hearing on 8 August 2023. Subsequently that date was changed, and the hearing took place on 20 November 2023.
3. On 22 May 2023, Ms Kaur affirmed an affidavit of 55 paragraphs.
4. At paragraphs 12-17 of her affidavit Ms Kaur deposed to matters which she said occurred in the compulsory conference. These paragraphs are clearly inconsistent with section 85 of the VCAT Act. Ms Kaur deposed within these paragraphs to these matters:

in the compulsory conference RMIT made an offer and she was told "RMIT would prepare a draft settlement deed which contained the specific details of the offer" ; that "RMIT stated they would use their best endeavours to find a placement"; "initially, [Ms Kaur] insisted on a guaranteed offer of a placement. RMIT told [her] that they could not guarantee a placement, but that they would use their best endeavours to find her a placement. It was not explained to [her] what best endeavours would look like from a practical perspective; [she] understood it to mean that RMIT would do their best to find [her] a placement"; "[she] agreed to accept RMIT's offer ... subject to the terms of the proposed settlement deed being agreed".

1. At paragraphs 18 - 22 Ms Kaur deposed to matters which she says occurred between the compulsory conference on 26 February 2018 and when she signed the Deed on or around 11 May 2018. She says that having received a draft Deed from RMIT, between 13 March 2018 and 8 May 2018 she corresponded with RMIT negotiating amendments to the wording of the Deed; in that period she received advice from her union and from the law firm Gordon Legal; and that on 14 March 2018 RMIT emailed her stating -

"RMIT can use best endeavours to arrange a placement. RMIT cannot force a hospital/health organisation to take you for a placement - we are relying on a hospital/health organisation's goodwill" and that "RMIT will use its best endeavours to do what it has agreed to do - but as you know some of the actions rely on third parties to do their bit and the successful outcome is obviously is (sic) heavily dependent on you participating in the process as we agreed".

1. At paragraphs 24 - 42 Ms Kaur deposed that she "signed the deed on the basis that the placement could comprise one in an acute health, mental health, or other specialty setting", because the Deed stated that the placement comprises 160 hours of supervised practicum in a third party health organisation which she "took ... to mean could be in an acute health, mental health, or other specialty setting" but that after signing the Deed RMIT told her that to satisfy the learning outcome of the PEP 5 course, the required placement was one in an acute care setting. Ms Kaur deposed that she did not believe that an acute care placement was required to satisfy the learning outcome of the PEP 5 course. Similarly to what was said in the written submission, Ms Kaur deposed that of the 26 providers who had potential placements only 4[6] were considered suitable candidates.
2. At paragraphs 40 and 41 Ms Kaur said, "I did not expect RMIT to cease trying to find me a placement after only one round of placement offers" and, "At no time during the [compulsory] conference or the subsequent settlement negotiations was [she] told that RMIT's best endeavours would be limited to one round of placement offers. There was never any time limit discussed by RMIT with [her] during the [compulsory] conference or the subsequent settlement negotiations".
3. At paragraphs 43 - 55 Ms Kaur deposed to matters by way of explaining her delay in seeking reinstatement of the proceeding.
4. On 23 May 2023, Ms Kaur's legal practitioners filed further written submissions, which were mainly directed to citing case law.
5. On 1 August 2023, RMIT wrote to the Tribunal, attaching some communications which had passed between the parties, and stating that RMIT requested and agreed that these communications be treated as evidence in Ms Kaur's application for reinstatement. The documents included correspondence in which the draft deed was negotiated. Relevantly, they include an email from Ms Kaur dated 11 April 2018, in which she asked for extra time so that Gordon Legal could comment on the draft deed, and a reply from RMIT on 11 April 2018 agreeing to the extension; and a copy of the email from RMIT dated 14 March 2018 which Ms Kaur had quoted from. Having read the email I confirm that Ms Kaur's description of the contents of the email, which I referred to above, was accurate. The email dealt with various subjects and included the statements -

"RMIT can use best endeavours to arrange a placement. RMIT cannot force a hospital/health organisation to take you for a placement - we are relying on a hospital/health organisation's goodwill" and that "RMIT will use its best endeavours to do what it has agreed to do - but as you know some of the actions rely on third parties to do their bit and the successful outcome is obviously is (sic) heavily dependent on you participating in the process as we agreed".

1. On 3 November 2023, Ms Kaur's legal practitioners emailed the Tribunal an indexed bundle of 63 documents, stating that she intended to rely on them "in support of her affidavit". On 9 November 2023, RMIT emailed the Tribunal, objecting to the 63 documents. RMIT sought an order to the effect that the materials be rejected, or alternatively a directions hearing. An Order in Chambers was made by a member of the Tribunal, to the effect that the documents in the bundle could only be relied on if leave was obtained at the hearing.
2. At the hearing Ms Kaur also gave evidence orally, without objection from RMIT. Much of this evidence was irrelevant, and much was also merely the repeating of statements in Ms Kaur's affidavit. However, Ms Kaur did say in her oral evidence that her union arranged for Gordon Legal to give Ms Kaur advice, and whilst she sought to say that this was not "legal advice" she conceded that Gordon Legal had drafted amendments to the draft Deed which were submitted to RMIT. Ms Kaur was asked by RMIT, if it was so important that she be able to do a placement anywhere, why was that not even suggested as an addition to the deed, and she answered unsatisfactorily that this was because she believed RMIT was looking at a placement anywhere and not just in an acute care setting. When it was put to Ms Kaur that she had time to read the Deed before signing it, she answered that she did read the Deed before signing it.
3. Both the Tribunal and RMIT allowed Ms Kaur many opportunities to put her position forward, with RMIT waiving opportunities to object to what amounted to evidence being given contrary to section 85 of the VCAT Act, amendments and the presentation of fresh evidence. Objectively, much of Ms Kaur's evidence was not of assistance to her. For example her acknowledgement that she had obtained assistance from her union and Gordon Legal when negotiating the deed over a period of some two months after the compulsory conference, that she read the Deed before signing it, and that she was relying on her subjective perceptions and beliefs in preference to the express words of the Deed are to her disadvantage.
4. In giving the summary above I have not referred in any detail to the reasons given by Ms Kaur for her delay in seeking to reinstate the proceeding. I accept that Ms Kaur encountered a number of very unfortunate experiences. The question of the effect of 'delay' in bringing an application for reinstatement really only arises after it is established that there are grounds for reinstating the proceeding. I am not satisfied that Ms Kaur has established that the proceeding should be reinstated.
5. I note in passing that her legal practitioners' submission that RMIT would not suffer prejudice if the proceeding was reinstated, because of its size and resources, is somewhat illogical and that I would not accept that submission. When considering whether a respondent to an application would be prejudiced if the application were granted, the Tribunal should consider respondents as a class. It would be incorrect, in my view, the Tribunal to find - as Ms Kaur's submission invited it to do - that a particular respondent would not be prejudiced "because it could afford it". In any event, because I am not satisfied that Ms Kaur has established the proceeding should be reinstated, I need not consider whether RMIT would be prejudiced if I had ordered to the contrary.

1. I appreciate that Ms Kaur's legal practitioners have presented very thorough submissions in support of her application. I think they have sought to overcome the very clear factors which work against her application, and so they have inevitably gone into some rather technical legal points that might otherwise have been unnecessary to canvass.
2. Ms Kaur submitted that VCAT had jurisdiction to set aside a deed of settlement. At paragraphs 15 and 16 of the written submissions made on her behalf, she submits that the Deed should be set aside on the ground of innocent misrepresentation; and that whilst misrepresentation is grounded in equity and VCAT does not have equitable jurisdiction, Ms Kaur is not asking VCAT to exercise its powers in an equitable jurisdiction but is instead asking VCAT to apply equitable principles in exercising its statutory power to reinstate a proceeding which has been struck out. Ms Kaur cites Herald and Weekly Times v State of Victoria,[7] which is a decision of the Court of Appeal from 2006 that to my mind explains some of VCAT's current procedures.
3. In Herald and Weekly Times v State of Victoria an employee of Corrections Victoria had sued it in VCAT under the Equal Opportunity Act 1995 (Vic), and reached a confidential settlement in a mediation. The confidential settlement agreement was placed on the Tribunal's file under a procedure which was intended and believed to result in the document not being able to be inspected.[8] Herald and Weekly Times ("HWT") inspected the Tribunal's file. On application by Corrections Victoria, the then President of the Tribunal granted an injunction restraining HWT from publishing details of the settlement agreement, expressly not under a section of the VCAT Act that dealt with suppression orders,[9] but under section 123 which stated that VCAT could grant an injunction. HWT published, and was cited for contempt. In the contempt proceeding, HWT submitted that the injunction order was invalid and could not therefore found a contempt proceeding. That 'defence' was ruled invalid, as being a collateral attack on the injunction order. HWT appealed.
4. The Court of Appeal said there were two issues: whether section 123 of the VCAT Act empowered the Tribunal to make the injunction order; and if it did not, whether the injunction order must be treated as valid for the purposes of the contempt power, in the sense that, until set aside, it must be obeyed.[10]
5. The Court of Appeal held that the employee's claim against Corrections Victoria fell within VCAT's original jurisdiction.[11]
6. HWT submitted that under the terms of section 123 of the VCAT Act, an injunction can only be granted in a proceeding, and because the employee's case had been struck out after the settlement, VCAT was functus officio when the injunction was granted. (The Court noted that the President did not even expressly reinstate the employee's proceeding before granting the injunction). Thus the injunction was granted without power. Alternatively, an injunction could not be granted against HWT in the proceeding between the employee and Corrections Victoria, because HWT was not a party to that proceeding. Further and fundamentally, the injunction was concerned with circumstances which were materially different from those in the employee's proceeding against Corrections Victoria, and was based on a cause of action in equity in respect of which VCAT had no jurisdiction.
7. The Court of Appeal held that the Tribunal had implied power to reinstate a proceeding that has been struck out, and that the President implicitly reinstated the proceeding before granting the injunction. Further, if the Tribunal had power to grant the injunction, HWT's conduct in participating in the hearing of the application for the injunction had the effect that HWT submitted to the jurisdiction of the Tribunal and so became a party to the proceeding. Thereafter the President's written Order treated HWT as a party. It followed that HWT was bound to obey the President's Order, unless that Order was made without power or was otherwise ineffective.[12]
8. At paragraph 27 the Court of Appeal held that the Tribunal did not have jurisdiction to grant the injunction. Section 123 of the VCAT Act confers power on VCAT to grant injunctions only in matters in which it has original jurisdiction. "The section does not enlarge the Tribunal's jurisdiction, but operates in aid of whatever jurisdiction the Tribunal already has". The claim made by the employee against Corrections Victoria was the "matter" before the Tribunal, and within VCAT's jurisdiction. The claim by Corrections Victoria for the injunction was not relevantly related to that matter - it was instead "concerned with a matter outside it, namely, conduct that was to be undertaken by a third party in respect of the Terms of Settlement to which it was a stranger. It is possible that HWT could be restrained from disclosing the contents of the Terms of Settlement, which were plainly confidential, but an order to that effect could not be made (by VCAT)".
9. I note in passing that the Court of Appeal held that section 137(1)(f) of the VCAT Act - the contempt power - does not operate to treat an invalid order purportedly made under section 123(1) as a valid order for the purposes of contempt proceedings in VCAT.[13]
10. I cannot perceive Herald and Weekly Times v State of Victoria as an authority which assists Ms Kaur. The Tribunal can reinstate a proceeding which has been struck out. That is not to say that the Tribunal will always do so. Herald and Weekly Times v State of Victoria does not "stand for the proposition" the VCAT has some inherent power to set aside a deed of settlement. Even though the Court of Appeal treated or deemed the President's injunction order to have reinstated the proceeding, and HWT's appearance at the injunction hearing as having made it a party, no Tribunal member could see that as giving VCAT implied powers. It has been said, repeatedly and correctly, that VCAT is a creature of statute and only has the powers which are given to it by the VCAT Act and by enabling enactments.
11. In Harvey v Phillips[14] the High Court dealt with a proceeding in which Ms Harvey had sued a surgeon for professional negligence in performing surgery. As well as relying on the tort of negligence, Ms Harvey pleaded that Phillips had performed an operation which was different to the one which Ms Harvey had consented to undergo, and also that in the circumstances Phillips had assaulted her. On the morning of the original trial, settlement negotiations were carried out between counsel for the parties. A settlement was reached between the lawyers. Terms of settlement were signed. Subsequently Ms Harvey sought to have the settlement set aside.
12. These events occurred in 1955 and the facts as set out by the High Court show that indeed the past is a foreign country. Obviously, mediations and compulsory conferences were unheard of in 1955. This was an era in which settlement negotiations were often carried out "at the door of the Court", between Counsel. It is also clear from the High Court's judgment that under the Court Rules which applied at the time, terms of settlement could be shown to the trial judge, and the judge could then enter judgment on the basis of the terms. However Ms Harvey had sought to have the settlement set aside before judgment had been entered. The High Court said that had judgment been entered, Ms Harvey would have been hard pressed to succeed in her application.
13. The High Court set out in some detail that Ms Harvey did not want to settle her case, and that she was put under extreme pressure by her lawyers to do so. Her lawyers even arranged for Ms Harvey to have a private discussion with the trial judge about the benefits of settlement. Nevertheless the High Court said that, "But so far as the counsel and solicitors of [Phillips] knew, [Ms Harvey's] counsel had his client's considered and definitive authority to accept the settlement ... .It therefore does not seem a case in which reliance was placed upon the apparent or implied authority of counsel to compromise proceedings in court. ... The defendants' counsel acted upon the statement of [Ms Harvey's] counsel that he had obtained that authority".[15] [emphasis added]
14. The High Court held that the court below did not have a discretion to set aside the compromise, or to intercept the formal entry of judgment, in the circumstances. This was because it was not a case of misapprehension or mistake made by Counsel in consenting to an order or settlement. Nor was it a case where a compromise has been agreed upon by Counsel acting only in pursuance of their apparent or implied authority from the client but, owing to a mistake or misapprehension, actually in opposition to the client's instructions or in excess of some limitation that had been expressly placed on Counsel's authority. In such a case, the Court could refuse to give effect to or act upon the compromise, perhaps set it aside, and it could stop judgment being entered.
15. The High Court said that, "In the case of a compromise which is made within the actual as well as apparent authority of counsel a Court does not appear to possess a discretion to rescind it or set it aside. The question whether the compromise is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like".[16]
16. The High Court concluded that Ms Harvey could not have the settlement set aside. She had expressed a real intention to consent to the compromise, and her Counsel had authority to settle at the time the terms of settlement were signed. Even though Ms Harvey's consent did not last very long in terms of time, that was sufficient to lead to a binding agreement, "even if experience might have suggested that it was an attitude she was not likely to maintain".
17. I do not see Harvey v Phillips as supporting Ms Kaur's position. There have been considerable changes in the manner in which law is practised between 1955 and when Ms Kaur signed her Deed of settlement with RMIT. She did not settle at the door of the Court under great pressure. She attended a compulsory conference, which was twice adjourned to administrative mentions because written terms of settlement were being negotiated. Ms Kaur's affidavit and written submissions do not suggest that she was placed under pressure to settle in any way similar to the pressure which the High Court said was applied to Ms Harvey. Ms Kaur did not give her consent to settle for a short period of time - the gap between the compulsory conference and the date she signed the Deed was around 10 weeks.
18. Given that in Harvey v Phillips the High Court referred to misrepresentation as an equitable doctrine, Ms Kaur's submissions then cited Tucci v VCAT & Athedium Pty Ltd.[17] Athedium was the landlord of an indoor tennis complex, which it leased to a tenant company. Mr Tucci was a guarantor of the tenant's obligations under the lease. At the end of the lease Athedium alleged that the tenant had failed to leave the premises in good repair, and it sued the tenant and Mr Tucci in VCAT. Mr Tucci sought to have the proceeding against him summarily dismissed, under section 75 of the VCAT Act. The application failed. Mr Tucci appealed.
19. Cavanough J held that the giving of a guarantee by Mr Tucci was a "service" to Athedium, and that accordingly there was a "consumer and trader dispute" between the parties which fell within VCAT's jurisdiction under section 107 of the Fair Trading Act 1999 (Vic).[18] Cavanough J held that because the dispute fell within VCAT's jurisdiction, it was unnecessary for him to consider whether jurisdiction was also conferred by the Retail Leases Act 2003 (Vic).
20. It is clear from paragraph 40 of his judgment that Cavanough J was unimpressed with Mr Tucci's submission that the "consumer and trader dispute" was only between the landlord and the tenant, and that as guarantor Mr Tucci was in effect a stranger to that dispute. Cavanough J held that the dispute between Athedium and Mr Tucci was itself a "consumer and trader dispute".
21. At paragraphs 41 and 42 Cavanough J considered the relevance to VCAT's jurisdiction of equitable defences. In the course of this discussion His Honour essentially said that when exercising its powers to determine a "consumer and trader dispute", VCAT must follow the law of the land. His Honour identified various sections of enabling enactments - legislation which confers jurisdiction on VCAT - which "clothe VCAT ... with the power, or indeed the duty, to recognise and apply equitable doctrines, defences and remedies or to proceed in accordance with, or by analogy with, equitable principles". His Honour identified provisions which expressly gave VCAT power to order rectification of documents, restitution, make declarations, make orders in the nature of specific performance, and to order recission of a contract. At paragraph 42 Cavanough J expressed the view that the Court of Appeal, in Herald and Weekly Times v State of Victoria "may have" accepted a submission that VCAT was "required" to apply equitable principles when exercising its power under section 123 to grant an injunction, but that it was unnecessary for the Court of Appeal to decide the point.
22. At paragraph 46 His Honour rejected the submission that VCAT could not have regard to equitable principles when determining a "consumer and trader dispute", such as a claim under a guarantee.
23. In that sense at least, Tucci stands for the proposition that VCAT can have regard to equitable principles when determining a matter which is within its jurisdiction. However I do not read Cavanough J's decision as expanding VCAT's jurisdiction.
24. It was submitted on behalf of Ms Kaur that the Deed should be set aside:

(a) on the ground of innocent misrepresentation, in that RMIT represented to Ms Kaur that the placement could be in an acute health, mental health or another specialty health area, despite RMIT ultimately stating that Ms Kaur would only be put forward for placement in an acute health setting[19]; and alternatively

(b) on the basis that RMIT breached its contractual obligation to use best endeavours to secure the placement for Ms Kaur.

1. Ms Kaur submitted that the innocent misrepresentation upon which she relies is contained in the Deed itself, clause 2.1(d)(ii) of which said that RMIT shall "use best endeavours to arrange a Placement for [Ms Kaur] that is suitable for [her] on the terms to be agreed between RMIT and the third party health organisation", where the word 'Placement' is defined in recital B as "clinical placement 5 (PEP 5)". Ms Kaur submitted that is implied from these words that there is no restriction on the type of placement - because for example the clause did not say " ...arrange a Placement within an acute setting". Ms Kaur submitted she was entitled to infer that there was no restriction on the type of placement available to her. Whilst Ms Kaur knew that RMIT could not guarantee that it was able to obtain a placement at the time, dates and for the duration, and in the desired setting required for her to complete her program (as stated in clause 2.1(d)(iii)) she could be satisfied with the width of the criteria, and hence her claim that innocent misrepresentation was made out.
2. In the alternative, Ms Kaur submitted that RMIT had breached the Deed because it had not used its best endeavours to obtain a placement for her. She submitted that the fact that she is only one placement away from completing her tertiary degree was relevant to the degree of effort required of RMIT. Ms Kaur alleges that RMIT gave up after one attempt at finding a placement, and did not act expeditiously enough in order to seek a placement in the second half of 2018.
3. RMIT submitted that the first question to be determined was whether recission of the Deed of Settlement would prevent the VCAT case from proceeding. It submitted that breach of the Deed could give rise to a separate proceeding by Ms Kaur against RMIT (which would be defended) and so breach should not be considered as a ground for reinstating the proceeding.
4. RMIT conceded that - as a matter of jurisdiction - VCAT "could" set aside the Deed, because making an equitable determination was not the same as purporting to exercise equitable jurisdiction which the Tribunal does not have.
5. RMIT submitted that Harvey v Phillips does not support Ms Kaur's position. The High Court stated that a court - let alone VCAT which is a creature of statute - does not simply have a discretion to rescind a settlement which is made within the actual authority of Counsel. In Ms Kaur's case, she herself signed the Deed and so she plainly had authority to do so. As the High Court then went on to say that the question of whether a compromise could be set aside depends on the existence of a ground which would suffice to render a simple contract void or voidable or entitle a party to equitable relief against it, RMIT submitted that there are no such grounds - such as illegality, misrepresentation, non-disclosure of material fact where disclosure was required, duress, mistake, undue influence, abuse of confidence or the like. RMIT submitted that there are no grounds which would render the Deed void or voidable or which would justify equitable relief being granted.
6. RMIT submitted that Ms Kaur has disclosed that she received legal advice while negotiating the Deed over a period of around two months. Objectively, Ms Kaur freely entered into the Deed acting on legal advice. The Deed expressly stated that RMIT would use best endeavours, and that it could not guarantee that it was able to arrange a placement. RMIT relied on the Deed, and complied with all of its obligations under the Deed. Now more than 5 years later Ms Kaur appears to have changed her mind about the agreement she entered into, and seeks that the Deed be set aside.
7. RMIT submitted that an important aspect of the Deed, in relation to which Ms Kaur made no submissions, was that clauses 4.1 and 4.3 of the Deed stated that Ms Kaur released RMIT from all claims or causes of action whatsoever which she has or may have against RMIT, and that the Deed may be pleaded in bar to any action, suit, claim, demand or other proceedings whatsoever in respect of any matter from which RMIT has been released under clause 4.1. Clause 5.2 provided that the Deed contained all the terms of the parties' agreement, and in that clause Ms Kaur acknowledged that entering into the Deed she had not relied on any representations or warranties in respect of the subject matter of the Deed except as it expressly provided.
8. RMIT submitted that the Deed amounts to an accord and satisfaction of Ms Kaur's claims against it.
9. Finally, RMIT submitted that if Ms Kaur was considered by the Tribunal to have established a basis on which the Deed could be set aside, that her delay in bringing the application for reinstatement, and the prejudice which would be suffered by RMIT if the proceeding was reinstated, demanded that the application for reinstatement be dismissed.

1. It will be apparent to the reader that I accept RMIT's submissions. I do not consider that Ms Kaur demonstrated that the Deed should be set aside or that the proceeding should be reinstated. She made no submissions in relation to the release or the acknowledgement contained in clauses 4.1 or 5.2 of the Deed. They are important, express provisions and they cannot simply be ignored.
2. Ms Kaur acknowledged that she had negotiated the Deed with the assistance of her union and Gordon Legal over a period of around two months after the compulsory conference, that she had read the Deed before signing it, and it is plain that her statements of belief or interpretation of the Deed are inconsistent with the express words of the Deed. Ms Kaur merely asserted that RMIT had not used its best endeavours, but that is not proof. Nor is it a situation in which asserting that best endeavours were not used could justify the Tribunal setting aside a Deed of settlement which had been executed freely by the parties' in order to allow an enquiry to be carried out to see whether in fact best endeavours had not been used.
3. I do not accept Ms Kaur's submission that RMIT made an innocent misrepresentation to Ms Kaur in the Deed itself.
4. I acknowledge Ms Kaur's description of the events and experiences she has gone through in the last few years, but such circumstances do not give the Tribunal a discretion to set aside a Deed in which legal proceedings were settled. There is an important public interest in the finalisation of litigation, and where parties participate in a compulsory conference, then negotiate a written Deed of settlement over a period of months, and execute that Deed, a party is not able to simply have the Deed set aside.

[1] The Australian Consumer Law and Fair Trading Act 2012 (Vic) makes the Australian Consumer Law enacted in Schedule 2 of the Competition and Consumer Act 2010 (C'th) a law of Victoria; provides that is to be referred to as the Australian Consumer Law (Victoria); and gives VCAT jurisdiction to hear claims under the Australian Consumer Law (Victoria).

[2] The parties are sent a Guide to Compulsory Conferences with the Notice of Compulsory Conference, which draws their attention to section 85 of the VCAT Act and other provisions.

[3] Order of Member Kefford, 3 April 2018.

[4] In fact registry processed the new Application form somewhat automatically, and gave it a new proceeding number. Once the Tribunal recognised the document as amounting to an application for reinstatement, that purported new proceeding was struck out.

[5] Paragraph 8.2 of the written submission says Ms Kaur "was purportedly required to be placed at the level of a third year nursing student in an acute type setting that allows for consolidation of all competencies".

[7] [2006] VSCA 146, at paragraphs 26 & 27.

[8] In 2023 we can see the flaw in the Tribunal's procedural reasoning of 2006. Terms of settlement have not been retained on the Tribunal's files for years, and probably since the publication of the Court of Appeal's decision.

[9] Section 101, which was subsequently repealed.

[10] [2006] VSCA 146, at paragraph 10.

[11] [2006] VSCA 146, at paragraph 12.

[12] [2006] VSCA 146, at paragraph 22.

[13] [2006] VSCA 146, at paragraph 37.

[14] [1956] HCA 27; (1956) 95 CLR 235; Casebase citation BC56000330.

[15] Page 3 of the Casebase report BC56000330.

[16] Page 3 of the Casebase report BC56000330.

[18] The Fair Trading Act 1999 (Vic) has been repealed but the provision now sits within section 182(1) of the Australian Consumer Law and Fair Trading Act 2012.

[19] Paragraph 10 of the written submission