State of Victoria (Department of Education and Training)

NEO obo EYX v State of Victoria (Department of Education and Training) (Human Rights) [2026] VCAT 111

The claims in this proceeding are dismissed under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).

1. The applicants (all aged between 14 and 28 years of age) were or are students at one of four 'segregated schools' (as the particulars of claim refer to them) operated by the first respondent, the Department of Education and Training (the department), for students with disabilities. The applicants bring their claim under the Equal Opportunity Act 2010 (Vic) (the EO Act).
2. The applicants claim they complained to the department about being subjected to violence abuse and neglect at the schools over periods ranging from 2004 to 2020 and that the department knew of these events and failed to hold any formal investigation.[1] The applicants say that this failure to investigate occurred because the students have disabilities, and that it occurred in the provision of services.[2] They seek orders that the department establish an independent inquiry (conducted by the Ombudsman, the Victorian Human Rights and Equal Opportunity Commission (VHREOC) or a retired interstate judge) to investigate their allegations and make recommendations.[3]
3. The department has applied for VCAT to strike out or dismiss the claim, under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (the VCAT Act), which authorises VCAT to strike out or dismiss summarily a claim which is frivolous, vexatious, misconceived or lacking in substance.
4. The applicants' amended particulars of claim dated 5 June 2024 (APOC):
   1. Describe the applicants, the schools, and the alleged treatment which they say has been the subject of complaints and communication with the respondent going back to 2004.
   2. Describe the applicants' disabilities.
   3. Claim the respondent knew of the abuse and describe the respondent's resulting actions.
   4. Give details for each school of the claim that in each school the respondent refused to conduct any formal investigation, thereby, they say, discriminating against the applicants in the provision of goods and services.
   5. Claim that this was unfavourable treatment on the ground of the applicants' disabilities and included covering up crimes.
   6. Say the reason the department did not conduct an investigation is because the applicants have disabilities.
   7. Set out alleged facts in support, including a claim that the department allowed false evidence to be given to courts and tribunals[4] and that the department continues to employ persons about whom the applicants complain and that the department refuses to alter its regulations,[5] refuses to act on a 2012 report [6]and refuses to amend legislation.[7]
   8. Name the alleged detriment to the applicants as a refusal to provide them with a genuine complaints and investigation service;[8]
   9. Claim that the department has not met its obligations under Victoria's Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter); and
   10. Request various remedies including:
       1. a finding of discrimination;
       2. an order for an independent investigation either by an interstate retired judge, VEOHRC or a request to the ombudsman; and
       3. an order for the respondent department to prepare a public plan to ensure physical restraint and illegal imprisonment of students with disabilities is significantly reduced or eliminated and that data about these activities is publicised and provided to regulators.
5. The respondent department applied for VCAT to dismiss the application without hearing any evidence. The department's submissions in support of that application say the claim is misconceived or lacking in substance because it is framed as one of discrimination in the provisions of goods and services, yet it is about an alleged failure to investigate, and the department says investigation is not a service.
6. If VCAT does not dismiss the claim as misconceived for this lack of jurisdiction, then the department says alternatively that VCAT should dismiss it or strike out large parts of the claim as frivolous, vexatious, lacking in substance or an abuse of process, because the particulars contain impermissible material.
7. VCAT made orders for written submissions, which were filed.[9] I then heard the respondent's application on 21 May 2025 and reserved my decision. Relevant statutory provisions
8. Section 75(1)(a) of the VCAT Act states that, at any time, VCAT may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion is frivolous, vexatious, misconceived or lacking in substance.
9. The principles that guide VCAT when considering an application for summary dismissal under section 75 are well established. VCAT should exercise caution before summarily dismissing a proceeding, because such action will have the effect of depriving a litigant of the opportunity to have their case decided in the ordinary course.
10. VCAT's role in determining an application under section 75 is not to examine the evidence relied upon by an applicant, but to proceed on the basis that the applicant will be able to prove all the allegations made in the claim. VCAT has said it is appropriate to assume an applicant will be able to prove each fact alleged in the claim.[10]
11. VCAT should take an applicant's case at its highest and should not order summary dismissal in circumstances where the outcome of the case might depend on findings of fact based on contested evidence.[11]
12. VCAT should only make an order summarily dismissing or striking out a proceeding when satisfied that, because of one of the grounds in section 75, the case is obviously hopeless, unsustainable in fact or law, or on no reasonable view can justify relief, or is bound to fail. This includes, but is not limited to, a case where a complaint can be said to disclose no reasonable cause or action.[12]
13. Section 44 of the EO Act prohibits discrimination in the provision of goods and services. Section 38 prohibits discrimination by educational authorities, but the present claim is not made under section 38.
14. 'Services' is defined in section 4 of the EO Act to include many beneficial activities, amongst them 'services provided by a government department'. However, the definition specifically states that it 'does not include education or training in an educational institution'.

1. The department submits that any decisions it makes whether to hold an investigation into allegations of misconduct, and the terms of any such investigation, are not goods or services within the meaning of the EO Act. Rather, it says any such decision is an activity undertaken by the department to inform itself about the discharge of its statutory functions in which it must balance a range of policy, employment, health and safety and other considerations. An investigation, the respondent says, is not an activity undertaken for the benefit of any particular person or class of persons.
2. In this case, the department says, the applicants seek to use VCAT as a vehicle to conduct a hearing akin to a Royal Commission into complex and serious allegations. This, the respondent submits, asks VCAT to undertake or supervise a departmental investigation.
3. The respondent relies on previous cases where VCAT and the Courts have said that an investigation and decisions about an investigation are not a 'service' for the purposes of the EO Act and similar legislation.[13] The respondent referred to the reasoning of Justice Snaden in Bickle v State of Victoria (Victoria Police) (Bickle),[14] where His Honor surveyed previous similar cases and drew the following conclusion:

Conduct engaged in by police in the process of investigating alleged criminal wrongdoing is not conduct that amounts to the provision of a service, whether at large or to those who claim to have been the victims of particular wrongdoing.[15]

1. The respondent submits that the decision whether to investigate allegations of misconduct, the form of such an investigation and the steps to be taken, are decisions relevantly analogous to the investigation powers of Victoria Police discussed in Bickle.
2. The applicants' submissions in response are briefly summarised here:
   1. The applicants admit their complaints are serious say and this should not make it harder for them to have their complaints heard.
   2. The respondent department has no statutory duties to undertake investigations, and this distinguishes the respondent here from those in the cases where VCAT and the Courts have determined that an investigation is not a service.
   3. The Royal Commission into Violence Abuse and Neglect of People with Disabilities expressed disquiet about that fact that services provided by police officers were not covered by anti-discrimination legislation and recommended that the Disability Discrimination Act 1992 (Cth) be altered to prohibit police discrimination.
   4. The people affected by the complaints in this case are extremely vulnerable children therefore the department should not be the one to determine the method and extent of any investigation.
   5. The benefit of an investigation is not for the department in performance of its functions. The only benefits of an investigation would be the care, safety and healing of the children concerned and there would be no benefit to the respondent from any investigation as the applicants assert the evidence will show.
   6. An investigation would also benefit other children besides those who are applicants in this proceeding.
   7. The respondent provides other services in addition to education, for example bus services and it does not make sense that those should be exempt from the prohibition of discrimination.
   8. The applicants rely on the VCAT decision in the case of Nauman v Bell,[16] which declined a section 75 application made by the Department of Families, Fairness and Housing about a complaint that discrimination occurred in an assessment interview under the Children Youth and Families Act 2005 (Vic).
   9. If the claim was to be struck out on the ground that an investigation is not a service, then the applicants say they will amend their claim (presumably to bring it under section 38 of the EO Act) to say that undertaking investigations is part of the respondents' duties in the provision of education.

WHETHER VCAT HAS JURISDICTION TO HEAR THE CLAIM

1. While acknowledging the applicants' strong wish for justice for the students concerned, I agree with the department's submission made by counsel at the hearing, that it is in no one's interest for a proceeding to go ahead if it is not within the jurisdiction and powers of VCAT.
2. The claim is not within VCAT's jurisdiction, because it depends on being a claim about discrimination in the provision of goods and services,[17] yet the main claim, that the respondent did not properly investigate the applicants' complaints, is not a claim about the provision of goods or services.
3. Since the hearing before me, VCAT has made and published a decision in the matter of UUH obo TLA v State of Victoria (UUH).[18] In that proceeding, VCAT considered whether the process of responding to a parent's complaint about treatment of their child at school was a service.
4. As in the present case, VCAT noted that education and training are expressly excluded from the definition of 'service' in section 4 of the EO Act.
5. Relevantly, part of the claim in UUH was that the respondents (including the State of Victoria (Department of Education and Training)) failed to investigate complaints of violence, abuse, assault, educational neglect, maladministration and dishonesty.[19]
6. The applicants in UUH argued that the complaints process was a service to the applicant and to the applicant's mother and therefore VCAT had jurisdiction to determine a claim of discrimination under section 44 of the EO Act.
7. VCAT determined in UUH that the process of responding to complaints made by a parent about how a student is treated at school could not amount to a service under the EO Act. I can see no room to distinguish here between a complaint made by a student, and one made by a parent, which was the focus in UUH.
8. In making that decision, Senior Member Powles said:

A complaint about how education or training in an educational institution is provided is a complaint about something that is expressly excluded from the definition of services. I am not satisfied that the process of dealing with a complaint about something excluded from the definition of services can itself be a service.[20]

1. Senior Member Powles also considered that whether students or parents received a benefit from a complaints process did not alter his assessment that the process of dealing with a complaint about something is inherently connected with the subject matter of the complaint.[21]. Accordingly, since education and training are excluded from the definition of a service, the Senior Member determined that a complaint about education or training is also excluded from that definition.
2. In addition to the guidance provided by the decision in UUH, there is the series of cases relied on by the respondent in support of its submission that decisions about an investigation do not fall within the definition of a service. Here, the applicants seek orders for a wide-ranging investigation.
3. As noted, the respondent says the decision whether to conduct an investigation into allegations of misconduct, the form of such an investigation and the steps to be taken in an investigation, are relevantly analogous to the investigation powers of police discussed in cases like Bickle.
4. The cases acknowledge that some activities of police have the character of a service, for example in the initial investigation of a call for assistance, where there is a benefit to potential victims of crime by protecting them from harm.[22]
5. However, there is a limit to this. In Bickle, the Court went on to say:

The investigation of alleged wrongdoing and the prosecution (or otherwise) of alleged wrongdoers are not functions that the police undertake so as to benefit alleged victims. They are undertaken because orderly civil society and the proper administration of criminal justice requires that they be undertaken. Plainly, that is of benefit to the community as a collective, as well as individually to those who might be the victims of particular wrongdoing.[23]

1. An activity is a service to a person because it provides a benefit to that person. There is authority for the view that conduct which is helpful to an individual is likely to be a service when it is consistent with the interests or welfare of the individual.[24] However, conduct which benefits the public at large, but not specifically the individual concerned, does not amount to a service to that individual.[25]
2. By analogy, a government department carrying out its functions is likely to be providing a service when it interacts with individual members of the public who receive a benefit from those functions. However, in deciding how to manage and organise its functions, the department benefits the wider community including all recipients and potential recipients and its own employees. A decision about whether to hold a judicial or quasi-judicial inquiry falls into that category. It does not provide a benefit to an individual complainant but to the community as a whole.
3. I make the following comments about the applicants' submissions as I have summarised them above:
   1. I agree with the respondent that serous allegations must be properly particularised. If the lack of full particulars was the only issue, this could be remedied by orders for further particulars.
   2. The fact that the respondent department does not have statutory powers of investigation like Victoria Police or Workcover in the cases on which the respondent relies is not determinative. The logic underlying those cases, which includes the concept that investigations serve the general public not individuals, means that the holding of a quasi-judicial investigation like the one the applicants seek is not a service. Further, the decision in UUH indicates that the exclusion of education and training from the definition of service in the EO Act precludes the applicants proceeding with the claim as currently stated.
   3. The recommendations made in a Royal Commission for changes to legislation cannot alter the meaning of the current legislation.
   4. The applicants' vulnerability does not alter the meaning of the legislation.
   5. As discussed above, the aim of a large-scale investigation is not to benefit specific individuals, even though that may be one result of such an investigation.
   6. The potential benefit an investigation might offer to people other than the applicants is not relevant to the question of whether VCAT has the jurisdiction to order such an investigation.
   7. As to whether other services provided by the respondent (such as rural bus services) are subject to the EO Act, there may be avenues for arguing that discrimination in these areas is still prohibited. That is not the focus of this proceeding.
   8. The applicants refer to VCAT's decision in Nauman v Bell.[26] That decision is consistent with the principles applied here. It was appropriate in that case to leave the question of whether the respondent was providing a service to be decided on the evidence rather than by an application under section 75 of the VCAT Act.
   9. The applicants say that if this claim is dismissed, they would make a new claim about the same matters based on section 38 of the EO Act. Any such claim would of course be considered when it is made, and it is not appropriate for me to comment on how the principles applied here would affect such a claim.
4. The applicants' entire claim will be dismissed as misconceived or lacking in substance. The central claim of discrimination in the provision of goods or services is misconceived and lacks substance because the alleged refusal to conduct a formal investigation did not occur in the provision of goods or services.
5. Further the remedies the applicants seek go beyond what VCAT has power to decide under the EO Act. Section 125 of the EO Act provides:

After hearing the evidence and representations that the parties to an application desire to adduce or make, the Tribunal may -

(a) find that a person has contravened a provision of Part 4, 6 or 7 and make any one or more of the following orders -

(i) an order that the person refrain from committing any further contravention of this Act;

(ii) an order that the person pay to the applicant, within a specified period, an amount the Tribunal thinks fit to compensate the applicant for loss, damage or injury suffered in consequence of the contravention;

(iii) an order that the person do anything specified in the order with a view to redressing any loss, damage or injury suffered by the applicant as a result of the contravention; or

(b) find that a person has contravened a provision of Part 4, 6 or 7 but decline to take any further action; or

(c) find that a person has not contravened a provision of Part 4, 6 or 7 and make an order that the application or part of the application be dismissed.

1. Relevantly, VCAT can find a contravention has occurred and can order that a person refrain from further contraventions, pay compensation, or do anything else to redress loss damage or injury.
2. The applicants seek remedies which include the following:
   1. A declaration that the applicants have been treated unlawfully under the Charter.
   2. A finding of discrimination.
   3. An order for an independent investigation with terms of reference decided by the investigating body and not influenced by the respondent.
   4. An order for the respondent to prepare and consult the applicants about a public plan to reduce and eliminate abuse and 'imprisonment' of students with disabilities.
   5. An order for the public release of data about restraint and seclusion in the respondent's schools.
   6. Orders that the respondent collaborate with various organisations to improve policies and practices.
3. The applicants' proposed remedies I have described at paragraphs c, d, e and f are not within VCAT's powers under section 125 of the EO Act. They do not address the alleged loss damage or injury to the applicants but rather address matters of public policy and the treatment generally of students with disabilities. This is a further indication that the claim is outside VCAT's jurisdiction.

1. If the claim is not dismissed for lack of jurisdiction, the department seeks that it be dismissed, struck out or at least partially struck out because it contains impermissible material. I summarise the department's objections as follows:
   1. Unparticularised allegations of serious conduct including abuse and unlawful restraint.
   2. Allegations which are vexatious and impossible to respond to.
   3. Irrelevant allegations.
   4. Impermissible attempts to use documents filed in other proceedings (referring to the doctrine confirmed in Hearne v Street[27]).
   5. Impermissible attempts to use such documents to litigate the merits of claims made in other proceedings.
   6. Impermissible attempts to set aside the immunity of witnesses (as recognised in D'Orta-Ekanaike v Victoria Legal Aid[28]).
   7. Serious allegations without identifying the material facts or particulars that, if proven, might support the allegations.
2. Since I have decided to dismiss the whole of the claim, I need not address those alternative submissions. I note simply that any further iteration of the applicants' claims should avoid including impermissible material. These are matters for the applicants to resolve in any further version of their claims.

1. As to the applicants' application for a declaration that they have been treated unlawfully under the Charter, section 39(1) of the Charter relevantly provides as follows:

(1) If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.

1. Apart from section 39, the applicants have no standing to make an application under the Charter. Accordingly, VCAT can only hear the applicants' claim about breach of the Charter if the applicants can seek relief 'in respect of an act or decision of a public authority on the ground that the act or decision was unlawful' independently of the Charter. Where, as in this case, the applicants' claim independent of the Charter is dismissed, the 'legal controversy' between the parties no longer exists to give the applicants' standing under section 39 of the Charter.[29] The applicants' claim under the Charter does not survive the summary dismissal of the claim under the EO Act.

1. For these reasons the entire application is dismissed.

[1] Particulars of the alleged refusals are set out in paragraph 19 of the APOC.

[9] First respondent's submissions dated 20 June 2024; applicant's submissions dated 12 July 2024 and respondent's reply submissions 3 March 2025.

[10] Owners Corporation No.1 PSS537642N v Hickory Group Pty Ltd (Building and Property) [2015] VCAT 1683 [12], referring to Noonan v Owners Corporation No. 2 PS409115E and Anor (Owners Corporation) [2011] VCAT 1934 [17].

[11] Campagnolo v Benalla and district Football League Inc [2009] VSC 228 [41].

[12] State Electricity Commission of Victoria v Rabel [1998] 1 VR 102.

[13] Kavanagh v Victorian Workcover Authority trading as Worksafe Victoria (Anti-Discrimination) [2011] VCAT 2009; Bickle v State of Victoria (Victoria Police) [2020] FCA 168; Djime v Kearnes [2019] VSC 117; Van Niekerk v State of Victoria (Victoria Police), State of Victoria (Department of Premier and Cabinet), Chief Commissioner of Police (Human Rights) [2022] VCAT 1267.

[14] [2020] FCA 168.

[16] (Human Rights) [2024] VCAT 269.

[17] APOC, paragraphs [19] to [23].

[18] (Department of Education and Training) (Human Rights) [2025] VCAT 596.

[24] Van Niekerk v State of Victoria (Victoria Police), State of Victoria (Department of Premier and Cabinet), Chief Commissioner of Police (Human Rights) [2022] VCAT 1267 at [73]; Rainsford v Victoria [2007] FCA 1059; (2007) 167 FCR 1 at [73].

[25] Sumanasekera v Western Australia (2017) 91 SR (WA) 107, 114 [23].

[26] (2017) 91 SR (WA) 107.

[27] [2008] HCA 36; (2008) 235 CLR 125.

[28] [2005] HCA 12; (2005) 223 CLR 1 at [39].

[29] Thorpe v Head, Transport for Victoria & Ors [2021] VSC 750; (2021) 66 VR 56, [169].