Kidko Performing Arts School v Department of Education (Review and Regulation) [2025] VCAT 931

1. Pursuant to section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the respondent's application for summary dismissal of the application or the proceeding is dismissed.
2. A directions hearing will be held via Zoom at 9.30am on 14 November 2025 before Member de Zilwa, if available.

1. In this hearing the Department of Education ('the Department') sought the summary dismissal of the applicant's application for review under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('the VCAT Act').
2. Kidko Performing Arts School ABN 39570452889 ('Kidko') was represented by Ms Rebecca Chambers and the Department was represented by Mr Daniel McCredden of Counsel. Ms Chambers is a co-owner of Kidko.[1]
3. Kidko is a business which provides music training, primarily to children. Until December 2023, Kidko had an agreement with the Albert Park Primary School ('School') to deliver a music program to students at the School.[2]
4. The application was an application for review of an internal review decision affirming an ongoing school community safety order ('OSCS Order'). This was the second OSCS Order. The relevant internal review decision was made on 4 September 2024.
5. The Tribunal has decided to dismiss the Department's application for summary dismissal of the application or proceeding.

1. On 14 November 2023 the principal of the School made an OSCS Order in respect of the applicant ('First OCSC Order'). Ms Chambers disputed this OSCS Order and the grounds for making it. She sought internal review of the Order.
2. On 7 February 2024 an internal review decision was made affirming the First OCSC Order.
3. On 1 March 2024 the first OCSC Order expired.
4. On 5 April 2024 a Regional Director of the Department made another OSCS Order in respect of Kidko ('Second OSCS Order').
5. This was said to be on the grounds that Ms Chambers:
   • posed an unacceptable risk of harm to anybody at a school-related place; and
   • posed an unacceptable risk of causing significant disruption to the School or activities carried on by the School.[3]
6. The Second OSCS Order was for a period of 12 months. This was the maximum period for which an OSCS Order can continue in force.[4] That OSCS Order subsequently expired on 4 April 2025.
7. On 10 March 2024 Kidko applied to the Tribunal for review of the First OSCS Order. As noted above, that order expired on 1 March 2024. Given the application for review of that order was made after the First OSCS Order had expired, it was struck out by order of the Tribunal. The reasoning was that Ms Chambers was not a person to whom the First OSCS Order applied when she made her application for review to the Tribunal.[5]
8. Ms Chambers also disputed the Second OSCS Order made on 5 April 2024. She sought internal review of the decision to make that order.
9. An internal review decision was made by a Deputy Secretary of the Department on 4 September 2024. The Deputy Secretary decided to affirm part of the Second OSCS Order and to vary other parts of the order.
10. The variation was to remove the ground that said Ms Chambers 'posed an unacceptable risk of causing significant disruption to the school or activities carried on by the school'. The Deputy Secretary formed the view that Ms Chambers no longer posed such a risk.[6]
11. After the striking out of her application to review, referred to above, Ms Chambers applied to the Tribunal to reinstate her application for review. On 14 September 2024 the Tribunal made orders reinstating her application as an application for review of the internal review decision of the Deputy Secretary made on 4 September 2024.
12. On 6 December 2024 a section 49 Statement was filed by the Department.
13. On 10 December 2024 there was a directions hearing when the Tribunal made orders including that Kidko send to the Department and the Tribunal a list of agreed and disputed facts, and a witness statement containing the evidence Ms Chambers would give at a hearing.
14. On 3 January 2025 Kidko filed a document titled 'Response to statement 49'.
15. On 3 February 2025 Ms Chambers filed a witness statement.
16. On 28 February 2025 the Tribunal made orders on the papers which included orders requiring Ms Chambers to indicate what documents and witness statements she would rely on at the hearing; asked the parties to tell the Tribunal of their availability for a hearing in the four months from September 2025, given the Tribunal could not accommodate a hearing before then; and listed an administrative mention for 28 March 2025.
17. On 28 March 2025 the Department filed an application seeking summary dismissal. There were orders by consent for filing of submissions.
18. On 16 June 2025 Ms Chambers filed a document titled 'Summary'.

1. The Department made its application for summary dismissal on four main grounds, which included that
   • Any orders the Tribunal made would have no legal effect, or give relief of any substance to the applicant because the Second OSCS Order has run its full course, having expired on 3 April 2025;
   • any orders the Tribunal made will have no related legal or practical effects for the applicant;
   • any orders which set aside the Second OSCS Order to beneficially affect the applicant's reputation would be inconsistent with the nature of the Tribunal's function and review jurisdiction; and
   • the case of INP v Secretary to the Department of Families, Fairness and Housing[7] ('INP') can be distinguished from the present case.

Orders made by the Tribunal would have no legal effect

1. The Department argued for summary dismissal on the basis that there was now a lack of utility in the application for review. This included that the application had become 'futile or academic'.[8]
2. The Department contended that the OSCS Order had run its full duration and no longer applied to Ms Chambers. It followed, the Department said, that any orders the Tribunal made would have no legal effect and would not give any relief to Ms Chambers.
3. It was said by the Department that the Tribunal's orders would not affect the current relationship between Ms Chambers and the School, and for that reason the review would be academic.
4. As the OSCS order is already at end, the Department argued, any decision by the Tribunal would not have any legal effect on Ms Chambers' rights or interests. If the Second OSCS Order was set aside, no present legal obligations on Ms Chambers would be removed which have not already ceased to apply to her.
5. The Department contended that if the Tribunal decided to affirm or vary the decision under review, the same considerations apply because the Second OSCS Order has run its full course and no longer operates. As the decision under review is no longer being implemented, affirming or varying the decision does not create, maintain, vary or alter any obligations on Ms Chambers.

Orders would have no practical effect for Ms Chambers

1. According to the Department, any order the Tribunal made on review has no related practical effect on Kidko or Ms Chambers. There is no continuing consequence or impact on an applicant's interests from an OSCS Order. There is no public register of an OSCS Order having been made. The order is made for protective purposes. Once the need for the order no longer exists, the practical effect of the order comes to an end.

Inconsistency with the review jurisdiction of the Tribunal

1. The Department argued a review conducted for the sole purpose of retrospectively restoring alleged damage to an applicant's reputation would be inconsistent with the review jurisdiction of the Tribunal.
2. The Department said the purpose of merits review is not to review the propriety or legality of the decision under review. The Tribunal's purpose should be to consider whether to make a fresh decision based on the currently available information. The Tribunal's role is not to determine whether the Second OSCS Order should have been made.
3. The Department argued that a merits review conducted essentially to only restore or vindicate some alleged reputational damage done by the original decision, in circumstances where the original decision no longer has any ongoing operation and the Tribunal's order would have no other legal or practical consequence or effect for the applicant, would be counter to the principles and features of the review jurisdiction of the Tribunal.

1. The Department argues the decision in the INP case can be distinguished from the present case. In INP, the applicant was seeking declarations of unlawfulness. The Department says that decision turned on the fact that declarations were sought by the applicant in that proceeding and that the original decision maker had not complied with the Charter of Human Rights and Responsibilities Act 2006 (Victoria).
2. The Department referred to observations made by Ginnane J in the INP decision that the applicant was unlikely to obtain orders from Tribunal overturning the relevant decisions because those decisions had been 'overtaken by events'.[9]
3. The Department interprets His Honour's words as meaning that the review proceeding in respect of the decisions in that case lacked utility because the decision no longer had any operative effect in respect of that applicant.[10]

1. Ms Chambers filed a response to the section 49 statement; a witness statement and a document entitled 'Summary'.
2. These documents contain Ms Chamber's response to the accusations against her, and include statements that:
   • a form seeking support for Kidko was only sent to students learning music at the School, but the principal wrote to the entire School community expressing disappointment in Kidko;
   • she strongly rejects accusations in statements describing her behaviour as looking and feeling "divisive";
   • she strongly disputes there were any grounds for the principal or School councillors to have any concerns for their safety and well-being;
   • she rejects as 'preposterous' the suggestion that children should not be alone with her while she is 'in a highly emotive, distracted and, possibly, unstable state of mind.';
   • she rejects accusations she was at any time 'hysterical';
   • there are no grounds or evidence to support the part of the order requiring her to stay 25 metres from the school boundaries;
   • she denies raising her voice or saying anything disrespectful to the principal;
   • she denies being verbally abusive to the principal or members of the School council;
   • she describes as 'untrue and defamatory' statements that she poses an unacceptable risk of harm to anybody at a school related place;
   • she believes there is no evidence of her causing staff to feel threatened, intimidated or scared;
   • she cannot be held responsible for what she calls 'irrational fears' expressed by the principal;
   • she has been subjected to a form of 'character assassination'; and
   • she has a right to criticise the principal.
3. Ms Chambers told the Tribunal of the harm she felt she had suffered because the Second OSCS Order was made. She felt the accusations against her had become widely known and spoken of in the small community where she lived and worked.
4. Among other things, Ms Chambers said that
   • she strongly believes there had been a great injustice done to her;
   • she had enjoyed a good relationship with the school for several years, but things changed when a new principal came to the school;
   • she had abided by the First OSCS Order, (despite applying for its review);
   • there was no reason for the Second OSCS Order to be made;
   • the internal review was not conducted in an independent manner;
   • she believes this is a personal issue between the principal and her;
   • she feels the time frames at VCAT did not allow her to get a fair hearing within the 12 months that the Second OSCS Order was current;
   • she believes the Department's system is flawed and should not include a review at VCAT when VCAT may not have the time to complete that review within the 12 months period that the order may be operative;
   • she believes that her reputation has been unfairly attacked;
   • she has received letters from the Department about her work at other schools, implying there may be some difficulties in that continuing;
   • she does not agree that her application for review should be dismissed;
   • she has paid a fee for a review hearing and feels she should get a hearing;
   • she was quite frustrated by the delays;
   • Kidko lost revenue because of the orders made against her;
   • Kidko's reputation suffered because of the orders made against her;
   • her personal reputation suffered because she lives in the Albert Park community where the School is located, and it is a small community;
   • the system of internal review is heavily weighted in favour of the Department; and
   • she was not interviewed as part of the internal review process.

Response by the Department and further argument

1. Mr McCredden, for the Department, responded to Ms Chambers' submissions, contending that
   • she could have sought an expedited hearing but did not do so;
   • the process was part of a statutory regime; and
   • everything that the Department had done was done according to that statutory regime.
2. Ms Chambers was given the opportunity to reply, and said, among other things that
   • the accusations against her are largely coming from the principal;
   • counter to that, Kidko has received hundreds of favourable reviews;
   • she believes the Second OSCS Order was based upon the same facts used for the first order;
   • she has never harmed anyone;
   • all she has done is to disagree with the principal;
   • the principal is a negative person but Ms Chambers is a positive person;
   • she wants an independent person to ask why she was accused of being harmful to children;
   • she has never harmed children; and
   • she is a passionate person who has been treated unfairly.

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

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

(b) is otherwise use of process.

...

44 Effectively, the requirements of Section 75 of the VCAT Act include that before the Tribunal makes an order under (a) or (b) it must form the necessary opinion that:

• it is appropriate to do so;
• the Tribunal must have a high degree of satisfaction in forming that opinion;
• the function conferred by section 51 of the VCAT Act must be the primary focus;
• section 75(1) in effect, provides for a defendant's summary judgment application; and
• the power may be used when a proceeding has become misconceived or lacking in substance, but was not that way when it began.

1. The Department referred to several cases where it was said that decisions under review had no practical effect, lacked utility, were misconceived or had become pointless. These included:
   • VLY v Department of Health and Human Services [2019] VCAT 245 at [64] to [66];
   • DPT v The Secretary, Department of Families, Fairness and Housing [2024] VCAT 950 [45];
   • Fry v Municipal Electoral Tribunal [2020] VCAT 888 [43].

1. The principles which the Tribunal applies when determining an application for summary dismissal include that:
   • the proceeding is undoubtedly hopeless;
   • there was no real question to be tried;
   • the proceedings are bound to fail;
   • taken at its highest, assuming an applicant would be able to establish the facts he or she alleged, the applicant did not have an arguable case;
   • the Tribunal must exercise great caution in making such determinations; and
   • a proceeding should not be dismissed if its outcome may depend on evidence to be called at a final hearing.[11]
2. As noted above, I was referred to INP. This was a decision of Ginnane J in relation to an appeal from a decision of this Tribunal.
3. In that decision, among other things, His Honour addressed the Tribunal's finding that the proceeding lacked utility.[12]
4. An obvious difference between the INP decision and the present proceedings, is the relief each applicant sought or seeks from the Tribunal. In the INP case, the applicant sought review and declarations from the Tribunal, but Ms Chambers seeks review of a decision.
5. The relief sought from the Tribunal does not distract from the principles stated by His Honour in the INP case which must be applied by the Tribunal when considering whether to summarily dismiss an application brought by person on the grounds their application lacks utility at the time when it is heard by the Tribunal. Those principles included that:
   • INP's case presented a controversy to be determined at a final hearing about whether the Secretary's decisions continued to have a significant adverse effect on him;
   • because of that, it is arguable that INP had a real interest in obtaining such a declaration and of establishing that it would have a foreseeable consequence for him;
   • the fact that decisions were no longer operative did not necessarily eliminate INP's claim that some of them have a significant adverse effect on INP, his reputation and his relationship with his children.[13]
6. In a summary dismissal application, the Tribunal should not simply examine the remedy that is sought, and whether there is any utility in that remedy, but also needs to look at the purpose of the remedy and the particular wrong that is sought to be corrected. If the remedy sought is a discretionary remedy, its grant will usually depend on the facts.[14]
7. It is incorrect to say that the Tribunal cannot consider reputation because doing so is an exercise in judicial review. Following the decision in INP, considering the effect of a decision under review is fact-dependent.
8. To consider reputation is to look at the consequences of the original order. It does not involve an examination of the legality or the processes of making the original order. It is not an exercise in judicial review. It means the Tribunal looks at the Second OSCS Order and the evidence of what happened to cause that order to be made.
9. In the INP case, the applicant was concerned with his reputation, amongst other things. That appears to be one of the main considerations of Ginnane J in reaching his decision. His Honour sent that case back to the Tribunal intending the Tribunal to consider reputation, among other things. He specifically rejected the notion that, because an application was 'futile' and lacked utility due to subsequent events, an applicant was not entitled to have the Tribunal conduct an examination into the grounds and consequences of the decision under review.
10. In this instance, even when considering the apparent lack of utility in the initial application, and following the decision in INP, the Tribunal is required to go further and ask what wrong Ms Chambers claims was done to her by the Second OSCS Order, which she now seeks to correct, and does the effect of that claimed wrong continue, even though the Second OSCS Order may have ceased to have effect?
11. Logically, part of the process involves the Tribunal making findings about whether the events which are claimed to have happened, did happen. Understandably, this can have an effect on Ms Chambers.
12. Once those facts have been found, the next task for the Tribunal is to determine whether the events which happened justified the making of the Second OCSC Order. This could also have had an effect on Ms Chambers. Because of the nature of the allegations made against her, Ms Chambers' reputation may have been affected within the School community and, according to her, the wider community generally. Ms Chambers also spoke about financial detriment suffered by Kidko.
13. Following the decision in INP, these steps must be undertaken because the Second OSCS Order was made. The need for them to be taken does not evaporate because that order has subsequently expired.
14. Ms Chambers seeks to have the Tribunal undertake these steps and hold a hearing because she feels she has suffered an injustice. She knows the Second OSCS Order itself has expired. Her evidence included statements about:
    • her reputation having suffered generally;
    • Kidko having suffered financial loss as a result of the Second OSCS Order; and
    • the fact her reputation was diminished in the eyes of her local community, which is also where the school is located.
15. In light of the decision by Ginnane J, the Tribunal must ask, is it possible that at a subsequent hearing, Ms Chambers could establish that the decision to make the Second OSCS Order has an ongoing adverse effect on her?[15]
16. The answer to that question must be that Ms Chambers may be able to establish she suffers ongoing adverse effects because of the Second OSCS Order having been made.
17. The Tribunal must also consider whether, despite the Second OSCS Order no longer being operative, does the Order continue to have a significant adverse effect on Ms Chambers' reputation?[16]
18. On the evidence received from Ms Chambers at the hearing, it is evident that the Second OSCS Order may have a significant adverse effect on her.
19. Following the INP decision, the Tribunal should not adopt an approach to the ongoing effect of the decision which is too narrow.[17]
20. It was put to the Tribunal by the Department that the application is now lacking in substance because the Second OSCS Order has expired. Having heard from Ms Chambers, it is clear to the Tribunal that the matter is not as simple as that.
21. The Second OSCS Order is no longer operative. That is conceded by Ms Chambers and is not in dispute.
22. Ms Chambers, however, seeks to make the case to the Tribunal that her reputation suffered because the Second OSCS Order was made. Following the INP decision, Ms Chambers is entitled to be heard by the Tribunal as to the effects on her reputation because the Second OSCS Order was made.
23. If the Tribunal gives Ms Chambers a hearing to do this, the Tribunal is not conducting an exercise in judicial review. It is not examining the circumstances surrounding the creation of the Second OSCS Order. Rather, it is examining the consequences of that order. Any examination of the consequences of the order does not depend upon that order being operative. The consequences of that order are separate from the creation of that order and may continue to be felt after the Second OSCS Order has expired.
24. This is not to be taken as a criticism of the Department. The Department clearly followed the processes required of it in the Education and Training Reform Act 2006 (Vic).

1. In this instance, Ms Chambers should be given a hearing by the Tribunal. The hearing should be about the consequences Ms Chambers says she suffered because of the Second OSCS Order.
2. The application by the Department is dismissed. Ms Chambers will be allowed to continue with her application for review.

[1] She is not a lawyer and did not have the assistance of a lawyer at the hearing.

[4] See section 2.1A.27 of the Education and Training Reform Act 2006 (Vic).

[5] See orders of the Tribunal made on 24 July 2024.

[7] [2025] VSC 31.

[11] INP [2025] VSC 31 at [52].

[12] INP v The Secretary, Department of Health and Human Services (Review and Regulation) [2020] VCAT 1293 [33].

[13] INP [2025] VSC 31 at [71].

[14] INP [2025] VSC 31 at [69].