1. On 28 March 2022, the applicant returned to work at BELS. The return to work was unsuccessful. On 7 April 2022 the applicant left and has not since returned to work. He claims loss and damage for the period since then and for future loss, in addition to loss for the period 2020 to 2022.
2. While I have found that the applicant was unlawfully excluded from work in January 2020 until March 2022 and should be compensated for the effects of that wrong, the subsequent period must be considered separately.
3. The second attempt for the applicant to return to work is properly characterised as an attempt by the respondent to make reasonable adjustments for the applicant so that he could return. The applicant was certified by his general practitioner as fit to return to work on modified duties[90] and an independent medical report dated 19 November 2021[91] said the same. The parties then set about agreeing upon a return to work plan for the applicant.
4. The applicant contends that a finding that the respondent had in 2020 caused loss, damage and injury to him by its breach of the EO Act should lead to compensation for the whole of his expected working life after that, irrespective of what happened in 2022. He says in oral submissions that what happened in 2022 was rendered irrelevant, as those events would not have occurred but for the earlier wrong.
5. That logic would only hold if the evidence showed that the injury caused to the applicant in the period from January 2020 to March 2022 made him unable to return successfully to work at all.
6. If that is not the case, another possibility is that the respondent could be liable for future losses if it failed to make reasonable adjustments for the applicant's disabilities in the second return to work period.

Findings about the applicant's fitness to work in March 2022

1. Taking all the medical evidence into account, I am satisfied that following his spinal stroke, the applicant had an adjustment disorder which was exacerbated by the respondent's treatment of him from January 2020.
2. The evidence does not indicate that the effects of the discrimination made the applicant unable to return to work successfully. Dr Khalid's report says that the adjustment disorder worsened as a result of the discrimination.
3. Dr Khalid assessed the applicant, albeit after the return to work had broken down. I accept Dr Khalid's evidence, but it does not establish that the injury made the applicant unable to return successfully to work.
4. As set out above and in my findings about how the contravention in 2020 to 2022 affected the applicant, the contemporaneous medical reports do not support a finding that the applicant's injury made him unable to succeed in any return to work. They are not precise about the character and effect of the psychological injury. They indicate that the injury interfered with his enjoyment of life and meant that he needed to safeguard his mental health in the return to work, but do not say or indicate that this would have affected his ability to return to work.
5. Dr Khalid's report says the applicant had seen a neuropsychiatrist, Dr Keem, but there was no direct evidence or information about that treatment and no opinion from Dr Keem about the applicant's condition.
6. Dr Rahgozar reported in his 4 February 2022 report that he had discussed the return to work with Dr Keem who had endorsed the plan for a gradual return, but that is the only information available, even though the applicant was said to have had forty sessions with Dr Keem.[92] There was no evidence from Dr Keem and no submission that I should doubt the report of his opinion. I consider therefore that he would not have given any evidence to assist the applicant in establishing the extent of his psychological injury.
7. Further, there was no evidence before me about how an adjustment disorder operates on the sufferer to interfere with their ability to do the sort of work or manage in the sort of conditions which the applicant experienced in March to April 2022.
8. The applicant's counsel suggested I should consider the precedent in the case of Leung v Cheung, an appeal from this Tribunal to the Supreme Court. In that case, the Tribunal was held to have been in error when it found that the voluntary resignation of the applicant meant she should not be compensated for lost wages.
9. In that matter, a sexual harassment claim, Her Honour Justice Richardson said:

The Applicant is entitled to compensation for lost income if she establishes that the loss occurred in consequence of the Respondent's contravening conduct. The Senior Member addressed the wrong question of whether the applicant was prevented from working at the Company. If the Applicant's resignation was a genuine result of the Respondent's contravening conduct the Applicant is entitled to be compensated for lost income, even though she was not prevented from continuing in employment. It is not necessary for the Applicant to establish that the Respondent's contravening conduct was the sole cause of her loss of income. It is sufficient if the conduct was a cause of her ceasing to be an employee.[93]

1. The present case is different in that there is medical evidence the applicant was fit to return to work in early 2022 and his neuropsychiatrist agreed with the recommendation to return to work. This makes it more difficult for me to be satisfied that the reason the applicant left the workplace and has not returned is the psychological injury caused by the discrimination in 2020 (and the period following) of which Dr Vukasin, Dr Ho, Dr Khalid, Dr Pang and Dr Keem who thought him fit to return to work, were aware.
2. As I have set out, the evidence indicates that the applicant felt uncomfortable and unsupported in that return-to-work period. What is not clear is why he felt like that and responded by leaving the workplace. Having considered all the medical evidence about the applicant's injury I am not satisfied that the injury caused him to leave work and stay away. There may have been several causes, and the injury is one of the possible causes, but the medical evidence is insufficient for me to be satisfied that his leaving was a genuine result of the injury caused by discrimination in 2020-2022.
3. It still remains to be considered whether the respondent made reasonable adjustments for the applicant's disabilities including his psychological injury, during the second return to work period.

Reasonable adjustments in 2022 - legal principles

1. Section 20 of the EO Act imposes on an employer an obligation to make reasonable adjustments for a person with a disability who requires those adjustments to perform the requirements of their job.
2. The language used in section 20 is precise. It does not say an employer is obliged to make all the adjustments a person seeks or might like to have, or which might benefit them, but only but only those required for the employee to be able to do their job.
3. In Muller v Toll Transport Pty Ltd (2),[94] the Tribunal said that employers are not 'mind readers' and employees need to articulate what adjustments they need so they can perform the genuine and reasonable requirements of the job[95] and: 'It is not for the respondent to work out what is required in an information vacuum. There must be some initiative from the worker'.[96].
4. The Tribunal held in Dziurbas v Mondelez[97] that the employer failed to make reasonable adjustments for the employee's disability in circumstances where the employee had his employment terminated but had been given no opportunity to identify any adjustments needed or discuss whether they would be reasonable.[98]
5. Section 20(3) of the EO Act sets out the factors to be considered when deciding whether an adjustment is reasonable. In relation to this period, there is some dispute about what adjustments were required for the applicant to be able to return to work. There is also a dispute about whether the employer made the required adjustments.

1. For the most part, the applicant does not contend that the adjustments set out in the second return to work plan (focussed on the first weeks of his return) were not what he required to adjust for the effects of his spinal stroke. Rather, he says that because of the psychological injury he required, in addition, a supportive environment for his return to work.
2. The applicant contends that his psychological condition by March 2022 was a further disability in addition to the disability resulting from his spinal stroke. He pleads that this further disability prevented him from being able to return successfully to work unless adjustments were made for that disability as well as for the disability resulting from his spinal stroke.
3. I have already set out the medical evidence about what was required in considerable detail. In summary:
   1. On 26 August 2020, Dr Vukasin expressed the opinion in a medical certificate that the applicant suffered extreme stress accessing his work email account and suggested the school communicate with him via a separate email account.[99] Mr Melican agreed when asked that he recalled and had read that certificate.[100]
   2. Dr Vukasin described the applicant after the first failed return to work attempt as feeling 'rejected, harassed and bullied'. He said the applicant felt he was being pushed out of the school by the principal and was suffering fatigue, poor motivation, anxiety irritability and poor sleep.[101]
   3. Dr Vukasin recommended an update with a return to work provider of specifications for the applicant including 'new measure for mental health safeguarding', regular breaks, regular debriefs, ongoing psychiatric review.[102]
   4. Dr Rahgozar said the applicant still had a 'degree of easy fatiguability attributable to his spinal cord infarction and possibly a concurrent mental health condition' and advised a 'gradual return to work, reduced days and hours, provision of education and training for any new process policy, software etc'.[103]
   5. Dr Rahgozar said that the applicant was taking medication for a mental health condition and suffering residual symptoms of anxiety and fatigue and that Dr Keem, the applicant's psychiatrist, had agreed with his recommendations for a gradual return to work at reduced hours and days.[104]
   6. Dr Rahgozar had reviewed the reports of the applicant's rehabilitation physician, Dr Tuminello, and spoken to him and reported he considered the applicant's residual symptoms of anxiety and fatigue would not affect his work capacity[105]
   7. Dr Rahgozar also recommended a period of observation before return to full duties was appropriate and said there should be monitoring for early signs of strain and stress.[106]
   8. Dr Rahgozar recommended the applicant refrain from outdoor activities at work for a few months.
4. Mr Melican agreed when asked that he was aware of this material before the applicant returned to work in 2022 and before the meeting in January 2022.[107]
5. The return to work plan included reduced days and hours for the initial period, observation of classes for two weeks, attendance at a Wednesday professional learning meeting, no yard duty in this period, weekly meetings on Thursdays with his support person and the principal, separate person the applicant could consult for support in content and pedagogy, time to be made available with the secondary curriculum coordinator and secondary learning specialist. These provisions satisfy the requirements for reasonable adjustments indicated by the medical evidence.
6. The applicant contends that more support was required, and I will return to that issue.

Development of the second return to work plan

1. There were two meetings about preparation of the second return to work plan: on 21 January 2022 and on 3 March 2022. The parties give different accounts of those meetings.
2. The meeting on 21 January 2022 included the applicant, his partner, Mr John Schutz, Mr Melican, the deputy principal, Ms Alexandra Perry, and Ms Annie Renowden, a counselling consultant apparently engaged by the respondent department.
3. The applicant's evidence was that at the meeting Mr Melican did not greet him or say goodbye, did not ask his views about the return to work, interrupted him, raised his voice over the issue of starting times, avoided eye contact with him, spoke sarcastically to him, did not ask about his health and offered no encouragement for his return to work.[108]
4. Mr Melican said in his statement that at the meeting he was focussed on the IME report and supporting the applicant's return to work, while the applicant and Mr Schutz, he said, sought to ventilate their feelings about the history to date[109]. Mr Melican said his manner during the meeting was calm and professional and not aggressive but that the applicant and Mr Schutz spoke aggressively to him. He considered they were unwilling to compromise or to accept the recommendations in Dr Rahgozar's report about starting times (namely that 9am was suitable).
5. Mr Melican denied any interruptions or sarcasm. He said he did greet the applicant but could not farewell him because the applicant left the meeting abruptly. Mr Melican denied any lack of support for the return to work and said his efforts were met with hostility and he had no opportunity to discuss the full contents of the return to work plan[110].
6. Mr Schutz's evidence supported the applicant's account. He said he asked the applicant to leave the meeting because the applicant became so upset.[111]
7. Ms Perry supported Mr Melican's account. She did not agree that Mr Melican interrupted the applicant. Rather, she said the applicant and his partner interrupted Mr Melican. Ms Perry said the meeting was cut short by the applicant and his partner who were unwilling to discuss arrangements they disagreed with. Ms Perry said the applicant and his partner were 'hostile and rude' to Mr Melican and both spoke over him. Ms Perry said that Mr Schutz made scoffing noises and spoke in an undermining tone to Mr Melican[112] (both of which observations Mr Schutz denied). She added that because the meeting was cut short, Mr Melican had no chance to present the supportive proposals in the plan.[113]
8. Ms Perry's account was supported by her notes[114] which gave an account of what was discussed. In summary, the notes showed that the principal and the applicant (with his partner) disagreed about appropriate morning starting times. The principal mentioned matters like: 'intensive learning takes place at the beginning of the day' and that the Wednesday staff meeting is a professional learning session to support staff. He also apparently said 'coming in at 11 am and leaving at 3pm does not allow you to participate fully'. The notes indicated that the applicant outlined his morning toilet ritual required because of his disability and said that Dr Rahgozar had made a mistake in saying he could start work at 9am.
9. In my view, this discussion, obviously difficult for both sides, was necessary. The applicant and respondent were negotiating about the return-to-work conditions and considering the circumstances and whether the nature of the work could accommodate the adjustments the applicant required. This was a necessary discussion and consistent with section 20(3) of the EO Act.
10. Ms Perry's notes also indicate that it was Mr Schutz who suggested that Mr Melican obtain a supplementary medical report, which I note Mr Melican subsequently did.
11. The applicant agreed that at one point in the meeting he said words like 'how would you like it if I had a stroke, vomit, or piss my pants in front of the kids outside of your office'. [115]
12. Mr Melican was cross examined about his attitude to the applicant's return to work. He maintained that he wanted the applicant to return to work. He appeared affronted when asked this question stating that it was his job and his obligation to assist the applicant's return.[116]
13. On the basis of all the evidence about this meeting I am satisfied the applicant found it stressful and upsetting. The applicant said this meeting caused him severe stress and a return of his physical symptoms including numbness, bowel dysfunction and difficulty walking.[117]
14. However, Ms Perry gave evidence[118] that the applicant said at the start of the meeting that he was already experiencing such symptoms. I had no reason to doubt her evidence on this point.
15. Taking all this into account, I am not satisfied that the applicant's experiences of stress and a return of symptoms following the meeting was because of any unreasonable, unsuitable or hostile behaviour of the principal or anyone from the school or the department in the meeting.
16. The parties had disagreed at that meeting about suitable starting times. The applicant wanted a later start whereas Mr Melican relied on the IME report which said 9am was a suitable time. Mr Melican sought a further medical report.
17. The next meeting, on 3 March 2022, was attended by the applicant, his partner Mr Schutz, Mr Melican, Ms Renowden and Ms Irene Harding, the department's director of complex care management.
18. At this meeting, it was agreed that during the return to work period, the applicant would start work at 11am and work for four hours, three days a week, on Tuesdays, Wednesdays and Thursdays.
19. However, on 9 March 2022, Mr Melican wrote to the applicant to say that the starting time for Wednesdays would be 12:40 pm so that the applicant could attend the weekly school meeting which lasted most of the afternoon. He said he had consulted the department's medical advice service about this. In reply, the applicant's general practitioner certified that consistent starting times were better for the applicant, but the applicant was willing to begin at 12:40 on Wednesdays.[119]
20. Ms Harding said in her statement that at this meeting Mr Schutz did most of the talking on behalf of the applicant and 'spoke in a firm manner'[120] While the parties were clearly at odds during these negotiations, I was not persuaded that the respondent's behaviour was hostile or unreasonable.
21. The respondent made the adjustment to an 11am start, except for one day. The evidence shows the respondent considered that it was important to the applicant's professional participation that he attend the Wednesday afternoon meetings and the applicant behaved reasonably in reaching a compromise.
22. On 27 March 2022, the applicant's solicitors wrote to the department about the proposed return to work and said:

Following what occurred at the meeting on 3 March 2022 and subsequent events, Mr Melican has not communicated with Mr Studart-Teles face-to-face or other than via email ahead of his return to BELS on Monday. Mr Studart-Teles therefore continues to experience anxiety, a lack of confidence and overall discomfort at the thought of a return to work in circumstances where the principal continues to show animosity towards him and they will be working in a small environment with one another.[121]

1. The evidence about the meetings and exchanges showed the parties found it difficult to reach agreement about what adjustments were required and what was reasonable, especially about starting times. However, I was not satisfied that the principal showed animosity to the applicant in this period or did anything to indicate he did not support the applicant's return.
2. I accept that the applicant found the negotiations upsetting. I noted that his partner made strong representations on the applicant's behalf, which must have made the meetings tense. There was a lack of personal warmth from the principal as far as I can see from the evidence. However, I am not persuaded that the adjustments required to accommodate the applicant's mental health disability extended to a display of personal warmth from the principal. Support was required and the return to work plan provided for that.

1. When the applicant returned to work on 28 March 2022 for the last two weeks of term, he said he felt the principal was not supporting his return to work, as the other teachers had not been told he was coming.[122] Of this, Mr Melican said it was not the usual practice and he understood the applicant had already been in touch with other teachers to tell them of his return.[123]
2. The applicant complained that Mr Melican did not discuss his expectations or the applicant's responsibilities with him on the first day of his return. In response, Mr Melican said that the return to work plan provided for a support person who met with the applicant at the start of his first day and he thought the return to work commenced smoothly. He said he kept back deliberately to give the applicant time to adapt to being back at work.[124]
3. Mr Melican pointed out that the return to work plan included besides a support person for the applicant two other supports - one person for content and program support and one for pedagogical support. He also noted that the plan provided for the applicant to meet weekly with his support person for those first two weeks so he could reflect on what he had observed that week and identify any other support he needed.[125]
4. Mr Melican said he was supportive. He said he was not detached or indifferent and that he greeted the applicant when he saw him in the corridors. He said he wanted to give the applicant space. He added that they had a check in meeting on 31 March 2022 and the applicant said everything was fine and it was nice to be back. He agreed that was the only time he checked with the applicant about his progress and said that meeting was scheduled to take place on Thursdays.
5. I accepted Mr Melican's evidence about these matters. I was not satisfied he was unsupportive. The return to work plan provided for support as was required by the medical evidence. The applicant has not criticised the people listed as his supports, or the range of assistance made available to him.
6. Ms Perry said that she collected information and observations about how the applicant was going. She said she observed the applicant during his two weeks in the school to be unengaged with classes. She noted, she said, that he did not attend some periods and left others early.[126] The applicant denied her interpretation of his behaviour. He said for example that on one occasion she mentioned he had been in the bathroom.
7. I found Ms Perry's data collection about the applicant inconsistent with Mr Melican's attitude that the applicant should have space to adapt to being back at school. However, I accepted her explanation that she was attempting to find what sort of support he needed to successfully return to work.[127] Further, Ms Perry added in cross examination that she asked the applicant how he was after another teacher had reported he was emotional, and he said, 'I'm OK ...Everyone's being lovely to me'.[128]
8. The applicant said in his statement that there were other incidents during the return to work period which made him feel unwanted and unsafe. However, the only instances he mentioned were those on 7 April 2022.
9. The applicant said that on 7 April around 12:30 pm, Ms Perry approached him and said in a loud intimidating voice 'you should be in class observing'. This made him feel distressed, he said, particularly as it was in front of a colleague.[129]
10. Ms Perry's evidence about this was that she was not loud or intimidating and that she explained that the OHS module (apparently about infection controls) the applicant was working on did not need to be completed immediately.[130]
11. Later the same day, the applicant said, Mr Melican came into his office (a staff room) and waved a timetable at him from about 1.5 metres away saying in a loud intimidating voice words like: 'what are you doing at your desk? You were supposed to be observing classes...I am the principal, and you must follow my rules'. This was also in the presence of a graduate teacher the applicant said.[131]
12. Of these incidents, Mr Melican said that around 12:30 pm, he saw the applicant in the staff room with another teacher when he should have been in class and observed Ms Perry ask him what he was doing and tell him he should be in class. He said the applicant responded that he preferred to do what he was doing. He said Ms Perry was not loud or aggressive.[132]
13. Then Mr Melican said he saw the applicant again around 1:43 pm in the staff room when he should have been in class. He said he mentioned the applicant should be in class and the applicant said, 'don't talk to me I'm leaving right now'. Mr Melican said the applicant continued to speak emotionally, so Mr Melican left the room and the applicant continued yelling at him. In cross examination, Mr Melican agreed[133] that when the applicant said, 'don't talk to me' Mr Melican said, 'Joe as the principal I have the right to ask you why you're not following your timetable', which was followed by the applicant's emotional response.
14. The applicant explained in his statement that he was completing documents about infection control which he had just learned were mandatory and another teacher had offered to help him. He said this sort of incident made him feel he was not allowed to take the breaks he needed.[134]
15. In relation to that perception, I note that Ms Perry's evidence was that she observed the applicant take a number of breaks over the two weeks he was there, and she had noted that he did not always inform the other teacher in the room that he was leaving.[135] Taking all this into account, I was satisfied the applicant had been able to take breaks when needed.
16. Mr Melican for his part in the incident on 7 April 2022 denied he was loud or intimidating or that the applicant was not allowed to take breaks. He said at the hearing that he was 8 or 10 metres away at the door and began walking towards the applicant and he stopped when the applicant yelled at him, so he did not come close to him at all.[136] Mr Melican agreed in cross examination that he could have spoken to the applicant privately about the timetable and that the conversation would have been embarrassing for the applicant.[137]
17. After this incident, Mr Studart-Teles said he emailed Mr Melican saying he felt unsafe and unwelcome and that he would attend their 2:30 pm meeting by telephone but received no response. Mr Melican's evidence was that he received the email and responded saying he thought a meeting on a subsequent day would be better. The applicant's email was attached to Mr Melican's statement, but no response from Mr Melican was included[138].
18. I do not find Mr Melican was loud or intimidating in these interactions. Generally, I accept his evidence. He could have been more sensitive to the presence of another staff member. Overall, however, the respondent complied with the need for supports to be in place for the applicant's return to work.
19. The applicant has not returned to the school since 7 April 2022. He says his mental health deteriorated and he experienced anxiety, stress, fatigue and feelings of hopelessness and despair. He has been on personal leave since 26 April 2022.[139]

Findings about reasonable adjustments in early 2022

1. I do not find the principal was detached or indifferent to the applicant during the return to work period. Despite his lack of warmth there was an ordinary level of interaction, with brief greetings and formal meetings in place.
2. I accepted Ms Perry's evidence that she focussed on identifying what was needed to help the applicant return to work successfully and was no loud or intimidating to him.
3. I have noted that the return-to-work plan provided for the appropriate support and transitional opportunities to observe classes and readjust to the workplace. The applicant did not prove that he was discouraged or prevented from taking the breaks he needed, which were specifically mentioned in his return-to-work plan.
4. In all those circumstances and taking into account the evidence I have outlined, I was satisfied that the respondent made reasonable adjustments for the applicant's physical disability resulting from his spinal stroke and for his mental health disability as described in the medical reports.

Whether the respondent contravened the EO Act in March - April 2022

1. I have already determined earlier that the applicant has not proved that the injury he suffered in 2020 to the beginning of 2022 was a cause of his leaving work (and not returning) in April 2022 and subsequently.
2. I am also satisfied that the respondent made reasonable adjustments for the applicant's physical disability and mental disability as described in his and their own medical reports and in during the return to work attempt in March to April 2022.
3. The applicant has not sought to return to BELS since then and remains on unpaid personal leave. His evidence is that he does not feel psychologically safe to return there.[140] He says in his reply witness statement of 3 November 2022 that he is now unable to work in any school operated by the respondent and is actively seeking employment elsewhere, subject to the need for a gradual return, given his absence from the workplace for a long time.[141]
4. While I have no reason to doubt the applicant's evidence about his personal state and situation, I have found that the respondent is not liable for that, except in respect of the injury he suffered by reason of the respondent's contravention from January 2020 to March 2022 and some mild continuing symptoms.
5. Accordingly the complaint in respect of the events of March and April 2022 and the claim for economic loss from that date and into the future is dismissed.

General damages for the effects on the applicant of the discrimination**

1. Now it remains to consider how the applicant should be compensated for the loss and damage and injury suffered by reason of the respondent's contravention of the EO Act which I have found occurred in the period from January 2020 to March 2022.
2. During 2020 and 2021, the applicant claims, his exclusion from the workplace caused him to develop a psychological disorder which included fatigue, poor motivation, loss of self-worth, anxiety, irritability and poor sleep.
3. I have summarised the medical evidence about the effects on the applicant and generally accepted that evidence.
4. The applicant in his statement (made in August 2022) said:

Prior to the events referred to in this witness statement, I enjoyed socialising, swimming, reading, and undertaking self-directed study. I had a strong network of friends and colleagues and a healthy relationship with my partner, John.

I have experienced psychological harm due to my exclusion from BELS, which has had a negative effect on my relationship with others, such as with John, and my desire to engage in various recreational pursuits such as exercising and socialising. I used to enjoy swimming, aerobics, reading and socialising. However, I feel that I have derived less enjoyment from these activities since my exclusion from BELS and my motivation has just disappeared. I feel like I have been 'in limbo' since my exclusion from the school in 2020. I have lost the sense of 'purpose' that work used to provide me with, which has caused to experience difficulty sleeping and feelings of anxiousness.

1. I accept this evidence. While I am not satisfied the respondent is liable for the applicant's ongoing absence from the workplace and the effect of that on him, these effects, reported in the applicant's statement in August 2022, indicate a serious change in the applicant's life over more than two years.
2. In a letter of 14 October 2020, Dr Tuminello, the applicant's rehabilitation physician, attributed the applicant's hospital admission around that time to his 'work stress'.[142] In March 2022, Dr Khalid said, the applicant had symptoms of adjustment disorder with mixed anxiety and depressed mood, and as of March 2022 was experiencing moderate symptoms.[143]
3. The respondent's actions and omissions are not a simple single instance of contravening the EO Act. In 2019, when the applicant actively sought to return to work, the respondent did nothing towards returning the applicant to work except to create the appearance that this was in train. In early 2020, the applicant was abruptly refused access to the workplace, despite the appearance of preparation which the respondent had given.
4. Then the respondent did nothing to enquire what reasonable adjustments were required, failed to include the applicant in online work and only asked him to undergo an IME in October 2020, seven months after the failed return to work plan. Without explanation, the respondent apparently took no account of the medical certificates from the applicant's general practitioner, who repeatedly said he was fit to begin a return to work on moderate duties.
5. This unfavourable treatment caused the applicant to feel rejected, harassed and bullied over at least two years. He had done what he could to arrange his return to work, including working with the rehabilitation consultant provided under his insurance. As a result of his feelings of rejection, he suffered fatigue, poor motivation, anxiety, irritability and poor sleep. It was a worsening of an adjustment disorder following his spinal stroke.
6. As the applicant's counsel suggested, these effects followed from the combination of inaction exhibited by the respondent's personnel at BELS and in the central department. However, it is the effect on the applicant which I must consider in making an award of general damages for these effects.
7. The applicant seeks $100,000 in general damages for his psychological sufferings. I have not found the respondent liable for the applicant's ongoing absence from the workplace after March 2022, and any effect of that on his psychological disorder. I consider the number of general damages should be less than the applicant seeks, because it concerns two years of exclusion from work and some moderate continuing symptoms.
8. As Member Dea, as she then was, of this Tribunal said in Galea v Hartnett - Blairgowrie Caravan Park [2012] VCAT 1049, citing Hall v A & A Sheiban Pty Ltd [1989] FCA 72:

The starting position in relation to awards for prohibited discrimination for injury to feelings (also referred to as non-economic loss), is that the amount should not be minimal, as that would trivialise or diminish respect for the public policy to which the Equal Opportunity Act gives effect. On the other hand, awards ought not be excessive, as that would also damage respect for that public policy [83].

1. In Dziurbas v Mondelez Australia Pty Ltd,[144] the Tribunal awarded the applicant $20,000 for injury to his feelings when he was discriminated against in the termination of his long-time employment. In that case, the Tribunal surveyed previous decisions in the Tribunal and determined an amount higher than others previously awarded.
2. In Richardson v Oracle Corporation Pty Ltd and Tucker,[145] where the Full Court of the Federal Court increased an amount awarded as general damages for sexual harassment from $18,000 to $100,000 Her Honour Justice Kenny observed:

The real issue is whether, having regard to the facts as found, the amount fixed by the trial judge was so disproportionately low that when the facts, as found, are considered that the award cannot fairly be seen as reasonable compensation for the loss and damage suffered by the appellant ...In making an award, a court necessarily has regard to the general standards prevailing in the community... Other awards of general damages for injury of the kind suffered by Ms Richardson may provide some measure of manifest inadequacy since they may provide some guidance as to what contemporary courts have discerned as proper compensation for such an injury according to generally prevailing community standards. ... In the context of damages for personal injury, there is reason to believe that community standards accord a higher value to compensation for pain and suffering and loss of enjoyment of life than before.[146]

1. In Collins v Smith,[147] referring to the Federal Court's decision in Richardson, this Tribunal awarded $180,000 in general damages for sexual harassment and victimisation.
2. There is no inherent reason why awards for the distress caused by sexual harassment (which was the reason for loss in the above cases) should be higher than other awards under the EO Act. The amount is to be measured by how the applicant has been affected.
3. In Gilmore v Victoria Police[148] this Tribunal awarded $35,000 in general damages for discrimination on the basis of employment activity.
4. Some circumstances of the present case, in my view, increased the impact on the applicant. He was dealing with not just his own employer, or a single school, but with the responsible government department. Over two years while he continued to raise the issue and seek assistance, he had the burden of dealing with a systemic approach, in which the principal acted under the advice of the larger department so that outcomes were not easy to achieve.
5. Taking all that into account and doing the best I can, I consider the applicant should receive $45,000 for his pain and suffering from the psychological disorder over two years and for his moderate continuing symptoms as measured in March and August 2022. I accept that those symptoms may continue to affect him. I have found that the respondent is not responsible for any exacerbation of the symptoms by the applicant's continued absence from the workplace.

Damages for loss of income and entitlements in the period 2020 to 2022

1. In addition, I will make orders about the applicant's past loss of income and benefits caused by his exclusion from work to early 2022 and loss of future growth in his superannuation fund related to that period. The applicant's particulars of economic loss were set out in his amended particulars of economic loss dated 13 April 2023. Except regarding superannuation, the respondent raised no issues about this at the hearing and I therefore assume the respondent does not dispute the amounts claimed, except regarding superannuation.
2. For 2020, the claim was as follows:
   1. in term 1, ordinary wages at 12 hours per week = $7,004.97;
   2. in term 1, loss of superannuation payments of $665.47;
   3. in term 2, loss of ordinary wages at 30 hours per week = $20,949.87;
   4. in term 2, loss of superannuation payments of $1,990.24;
   5. in terms 3 and 4, loss of ordinary wages at 38 hours per week = $49,454.71;
   6. in terms 3 and 4, loss of superannuation payments = $4,698.20; and
   7. in terms 3 and 4, loss of annual leave loading (4 weeks' pay x 17.5%) = $1,453.89.
3. For 2021, the claim was as follows:
   1. loss of ordinary wages = $108,003.00;
   2. loss of superannuation payments = $10,530.29; and
   3. loss of annual leave loading (4 weeks' pay x 17.5%) = $1,453.89
4. For 2022, the applicant claimed the full entitlements for that year. Since I have not found the respondent liable for his loss of income and entitlements in that year after he left the workplace on 7 April 2022, I will make orders allowing for the parties to reach agreement or seek a hearing if necessary about the appropriate sum for loss of wages, superannuation payments and leave loading for the period to 7 April 2022, excluding of course the amounts he was paid for working part-time in that period.
5. The applicant submitted no calculation of the sum claimed for lost accrual and payment of long service entitlements for the period January 2020 to 7 April 2022. It was not clear to me that long service leave entitlements would have accrued by then, but the parties should be able to reach agreement about that. I will make orders for the parties to reach agreement or seek a hearing if necessary about long service leave entitlements.
6. Otherwise, the total of the sum claimed for the period January 2020 to December 2021 is $206,204.53, and I am satisfied the applicant is owed that amount on the basis of the findings I have made.
7. In respect of these amounts, and the amounts yet to be ordered, the applicant is also entitled to interest. The applicant's interest claims were as follows:
   1. For the loss of $141,253.86 incurred between 28 January 2020 and 28 July 2021 (the date he filed his application in this proceeding) he claimed interest calculated at 10% for the period 29 July 2021 to 2 May 2023, when the hearing began, which is $24,883.90. It is not clear to me whether the applicant claimed interest after that date. I will make orders for the parties to agree or seek hearing about the interest due on this amount.
   2. Interest was also claimed for the loss of $109,499.40 said to have been incurred between 29 July 2021 and 28 July 2022. That interest was calculated 10% for the period 29 July 2022 to 2 May 2023. That amount should be recalculated to account for the fact that the respondent is not liable for loss occurring after 7 April 2022 and to calculate the interest to the appropriate date. I will make orders for the parties to reach agreement or seek hearing about that.
8. Finally, the applicant claimed for loss of future growth of his superannuation fund. Ms Papachristoforos, who is a chartered accountant and who manages the superannuation fund of the applicant and his partner, gave evidence for the applicant. She provided a witness statement dated 29 August 2022 and a further report dated 13 April 2023. She attended the hearing and was cross examined.
9. Ms Papachristoforos said that as manager of the superannuation fund, she is responsible for financial statements, tax returns and general compliance.[149]
10. The respondent's counsel suggested that Ms Papachristoforos could not be treated as an independent expert since she is a service provider to the applicant and his partner. Ms Papachristoforos had signed the expert declaration and I consider she is in a similar position to a treating medical practitioner who provides a report. I had no reason to doubt her evidence.
11. The respondent's counsel also suggested Ms Papachristoforos was not an expert in the performance of the various assets in the fund and could not accurately estimate the value of the fund in the future. In any case, the respondent's counsel suggested, the performance of the fund depended on the decisions made by the investors. Ms Papachristoforos explained that she was working with benchmarks but there was no way of being absolutely certain how a fund would perform. I had no reason to doubt Ms Papachristoforos was providing the best professional information she could about the issues. Had the respondent chosen, it could have called an independent expert about the projected growth of superannuation, but it did not do so.
12. In any case, given I have not found the respondent liable for future salary or entitlements after 7 April 2022, the respondent's liability for any loss of superannuation growth will be much smaller than that which Ms Papachristoforos calculated and which the applicant claimed.
13. In relation to this part of the claim, I will invite the parties to reach agreement about the amount due in respect of lost future growth of the applicant's superannuation fund following from the past loss (on the basis that I generally accept Ms Papachristoforos's evidence about the rate of growth) or to seek a hearing if they are unable to agree.

1. Mr Studart-Teles took out income protection insurance in 2010 and under that policy has been receiving payments since February 2019. In his particulars of claim, he said this was 40% of the base salary in his pre-injury wages. He (and the respondent, arguably) also received the assistance of an occupational rehabilitation provider appointed by his income protection insurers in the first return to work attempt.
2. The department submits that the amount Mr Studart-Teles has received as income protection insurance benefits that should be accounted for in the calculation of his economic loss, so that as the respondent puts it, he is only compensated for the loss he has 'actually suffered'.
3. The applicant's counsel submits the insurance payments should not lead to a discount in the calculation of lost income, relying on principles set out in National Insurance Co of New Zealand Ltd v Espagne[150] in the High Court, and in Parry v Cleaver[151] in the United Kingdom House of Lords. Counsel referred the Tribunal to this passage in Parry v Cleaver in which Lord Pearson considered previous cases (citations omitted):

The insurance money was held to be not deductible....one who pays premiums for the purpose of insuring himself pays on the footing that his right to be compensated when the event insured against happens is an equivalent for the premiums he has paid: it is a quid pro quo larger if he gets it, on the chance that he will never get it at all.

...there is no reason or justice in setting off what the plaintiff has entitled himself to under a contract with third persons, by which he has bargained for the payment of a sum of money in the event of an accident...He does not receive the sum of money because of the accident, but because he has made a contract providing for the contingency...it is not the accident but his contract which is the cause of his receiving it.

...the item of insurance money was too remote and collateral to be properly deductible from the damages payable for the plaintiff's injuries ...which arose directly and naturally for the accident.

1. These principles derive from the law about compensation for loss caused by a tort. In Lanigan v Circus Oz and Others,[152] in the Supreme Court of Victoria, His Honour Justice McDonald, having determined that this Tribunal is not a court, also ruled that a proceeding to remedy a contravention of the EO Act is not an action founded on tort, as he had determined such a contravention was not a breach of statutory duty in the necessary sense.
2. The question of the extent to which common law rules affect the calculation of compensation for loss under a statute has arisen before in discrimination cases. In Commissioner of Police NSW Police v Mooney (No 3),[153] the Administrative Decisions Tribunal Appeal Panel of New South Wales ('NSW Tribunal') accepted that a complaint of unlawful discrimination should not be characterised as a statutory tort and said:

Common law rules concerning the manner in which a court should determine whether damages claimed by a plaintiff in an action in tort are attributable to the conduct of the defendant may guide or assist the Tribunal when determining whether any loss or damage claimed by an applicant in a discrimination case was suffered by reason of the respondent's conduct, but they are not controlling.

1. The NSW Tribunal went on to refer to the High Court's decision in Henville v Walker,[154] where the Court had considered the meaning of a provision in the Trade Practices Act 1974 (Cth), and commented:

Gleeson CJ explained how that section should be interpreted...The only express guidance given as to the measure of those damages is to be found in the concept of causation in the word 'by'. The task is to select a measure of damages which conforms to the remedial purpose of the statute and to the justice and equity of the case...The principles of common law, relevant to assessing damages in contract or tort, are not directly in point. But they may provide useful guidance, for the reasons that they have had to respond to problems of the same nature as the problems which arise in the applicant of the Act. They are not controlling, but they represent an accumulation of valuable insight and experience which may well be useful.

1. Neither party mentioned at the hearing what difference it makes to the calculation of economic loss that a contravention of the EO Act is not a tort, although both seemed to accept in their written and oral submissions that the question of whether insurance benefits should lead to a discount of the claimed economic loss is a matter for the Tribunal's discretion.
2. I made orders for further submissions from the parties on this point.
3. The respondent reiterated that the words of section 125 of the EO Act, empowering the Tribunal to 'order ...an amount the Tribunal thinks fit to compensate the applicant for loss damage or injury suffered in consequence of the contravention', should be interpreted as if 'loss' was written 'actual loss'. Further, the respondent said, it would be unjust and inequitable to require the respondent to pay compensation for loss in respect of which the applicant had actually suffered no loss.
4. The applicant urged the Tribunal to consider the remedial nature of the EO Act as well as the reasons this approach to insurance payments developed in the common law.
5. The applicant submitted he had entered an insurance contract and paid premiums at his own risk and for his own benefit, not for the respondent's benefit. If this led to a reduction in compensation, he would have borne that cost and risk for no benefit. He submitted the respondent should not benefit from his insurance policy because the respondent is the wrong doer. Finally, he said, the insurance contract is a matter between the applicant and his insurer and any re-distribution of monies which could be received by him for economic loss should be a matter between him and his insurer.
6. The applicant referred in the August submissions to a case in New South Wales in 2017 in which the New South Wales Supreme Court refused to reduce compensation under a statutory scheme (a provision of the Australian Consumer Law) on account of receipt of insurance benefits. I note that the respondent had no opportunity to respond to that submission and my determination of this issue does not rest on that single case.
7. As with the provisions of the Trade Practices Act 1974 considered in Henville v Walker, the EO Act is remedial in nature. As set out in the objectives in section 3, it seeks:

a) To eliminate discrimination... to the greatest possible extent > > b) To further promote and protect the right to equality set out in the Charter of Human Rights and Responsibilities....and > > c) To promote and facilitate the progressive realisation of equality as far as is reasonably practicable by recognising that ..discrimination can cause social and economic disadvantage and that access to opportunities is not equitably distributed throughout society...

8. The elimination of discrimination and the realisation of equality are not promoted by an outcome which gives the contravening employer the benefit of an insurance policy paid for by the employee. In theory at least, other employers might see such an insurance policy as protecting them from any substantial liability for wrongdoing of this sort.
9. I am not persuaded, applying the principle set out above in Henville v Walker that it would be consistent with 'the remedial purpose of the statute and ...the justice and equity of the case' and to reduce compensation for lost salary by the amount of insurance payments the applicant has received. In any case, I am not persuaded that 'loss' in section 125(a)(ii) of the EO Act must be read as 'actual loss'.
10. The common law approach to this issue takes into account the risk the applicant took in buying insurance and the amounts he has paid out in insurance premiums. I note he took out the policy in about 2010, so would have paid a substantial sum in premiums before his stroke.
11. Accordingly, the insurance payments received by the applicant will not be applied to discount the amount awarded the applicant for lost income.

1. The applicant also sought a declaration of contravention and an apology.
2. Under section 124 of the VCAT Act, the Tribunal has power to make a declaration, and section 125(a)(iii) of the EO Act empowers the Tribunal to order a person do anything with a view to redressing any loss, damage or injury.
3. As to an apology, there was insufficient evidence for me to find that an apology would contribute to redressing the loss suffered by the applicant, particularly in circumstances where I have not found the whole of his claim proved. In any case, I do not understand how there can be any utility to an apology given under an order.
4. As to a declaration, in Kracke v Mental Health Review Board,[155] Justice Bell considered the general principles for exercise of this discretion, which have developed in courts, especially in cases about breach of human rights. Here, the relevant human right appears in Victoria's Charter of Human Rights and Responsibilities' Act 2006 (Vic), section 8. It is the person's right to enjoy his human rights without discrimination.
5. In Kracke, His Honour made a declaration that the Mental Health Review Board had breached a person's right to a fair hearing, noting that the board's review function was an important safeguard in the protection of the person's rights.[156]
6. The present case is a dispute between a person and his employer. True the employer is a public body, but the nature of the dispute is not akin to that in Kracke. It does not go to the fundamental purpose of the respondent. The department exists to provide education, where the board in Kracke existed to provide fair hearings and was found not to have done so.
7. The applicant also submits that a declaration is appropriate where the contravening employer is a government department which should be a role model and a declaration would mark disapproval of the contravening conduct.
8. In Director of Consumer Affairs v AAPT Ltd,[157] Justice Morris P observed that a declaration 'ought to have consequences' and 'the traditional consequence of a declaration is that it "might force the cessation of particular conduct"'. In the present case, there are already consequences for the respondent's breach and the breach has occurred by way of a combination of failures in the response to a person's disability. I am not persuaded that a summary of those various instances of conduct in the form of a declaration can add anything to the findings and orders already made.

1. For the above reasons, I make orders for the following amounts to be paid to the applicant:
   1. $45,000 for non-economic loss;
   2. $190,846.24 for economic loss in respect of lost income and entitlements for the period January 2020 to December 2021;
   3. Amounts to be agreed between the parties or if no agreement then ordered by the Tribunal following submissions in respect of:
      1. lost income and entitlements for the period 1 January 2022 to 7 April 2022;
      2. lost accrual and payment of long service leave to 7 April 2022 if any;
      3. interest on the amounts ordered for January 2020 to December 2021 and for January 2022 to 7 April 2022 and for long service leave;
      4. loss of future growth of the applicant's superannuation fund following from the past loss
2. Also for the above reasons, the claim is otherwise dismissed.

[1] See witness statement of Dr Pang, who examined the medical reports.

[2] Witness statement of applicant [16] - [19].

[3] Witness statement of applicant [21].

[4] Statement of Dr Vukasin dated 29 August 2022 and Attachment FV2 to that statement.

[5] Witness statement of applicant [24] and attachment JST 6 to the witness statement and dated 5 March 2019.

[6] Tribunal Book ('TB') 92 [7] - [8].

[9] Witness statement of applicant at [28]; witness statement of Mr Melican at [24].

[10] Statement of Mr Melican [25] and attachment MM 4 to his statement.

[11] Witness statement of applicant at [30] and attachment JST 8 to his statement.

[12] Witness statement of applicant at [32] and JST10.

[13] Witness statement of applicant at [27] and Mr Schutz's statement at [9].

[14] Witness statement of Mr Melican [33].

[15] Transcript of Proceedings120, 24 to 27.

[16] Witness statement of Mr Melican dated 12 October 2022,TB 4 [30] .

[17] See Transcript 197, 24 to 29 and emails at TB 341, Ms Clark to the applicant, TB 343, 18 November 2019 applicant to Mr Melican, TB 338 4 November 2019 applicant to Mr Melican TB 525, 17 October 2019 Ms Clark to Mr Melican.

[18] Witness statement of applicant at [36] and attachment JST 11at TB 345.

[20] At TB 529, where MM4 goes from TB 523 to 540.

[22] Transcript of Proceedings 206,16 -20.

[23] Transcript of Proceedings 207, 20 -22.

[24] Transcript of Proceedings 208, 15 - 16.

[25] JST 12A attached to the applicant's statement.

[26] Witness statement of applicant [37].

[29] Transcript of Proceedings page 39, 28 to 40 line 2; and 124 16 to 19; and 125 1 to 6.

[31] Statement of Mr Melican at [35] quoting from a letter of 23 December 2019 from VIT to Mr Studart-Teles.

[32] Statement of Mr Melican [36] - [38].

[36] Transcript of Proceeding 212,6 to 9.

[37] Transcript of Proceeding 213, 2 to 5.

[38] Transcript of Proceeding 214, 17 to 23.

[43] Transcript of Proceeding 237, 6 -28.

[44] Statement of applicant [44] - [45].

[45] Statement of applicant [47] and JST 18.

[47] Transcript of Proceeding 246, 27 -31.

[48] Witness statement of Mr Melican [41].

[49] Transcript of Proceeding 239, 1 -13.

[50] Transcript of Proceeding 245, 17 -23.

[51] Transcript of Proceeding246,27 -31.

[53] Transcript of Proceeding 249, 23 -24.

[56] See TB 350 -352, attachment JST 12A to the applicant's statement dated 29 August 2022.

[57] Transcript of Proceeding 252,17 -30.

[58] Witness statement of Mr Melican [110] TB 512.

[59] Transcript of Proceeding 246, 27 -31.

[60] Transcript of Proceeding 247, 21 -248, 17.

[61] Transcript of Proceeding 249, 13 -25.

[62] Watts v Australian Postal Corporation [2014] FCA 370 [28] - [29].

[63] [1999] UKHL 36; [2000] 1 AC 501,511.

[64] Waters v Public Transport Corporation (1991) 173 CLR 359 - 360.

[65] Austin Health v Christina Tsikos [2023] VSCA 82 [126] - [127].

[66] See Transcript 237,1 -5 and 22 -31; and 239,1 -24.

[67] As the applicant's counsel suggested, noting that this was one step in the Court's conclusion about discrimination in Pearson at [71] sub para 1.

[68] Purvis v New South Wales [2003] HCA 62 217 CLR 92.

[69] FV 1A attached to the statement of Dr Vukasin.

[70] [1991] HCA 49; (1991) 173 CLR 349, 381 (Brennan J) and at 369 (per Mason CJ and Gaudron J).

[71] Transcript of Proceeding 254, 6 -17.

[72] Transcript of Proceeding 255,7 -13.

[74] Transcript of Proceeding 257,26 -29.

[75] See Dr Vukasin's medical report,TB 104.

[76] Transcript of Proceeding 255,15 -19.

[77] FV5 attached to the statement of Dr Vukasin, TB 122.

[78] FV6 attached to the statement of Dr Vukasin, TB 124.

[80] See letter of Dr Vukasin FV 7, TB 127, and statement of applicant [58] and letter from applicant's lawyers to respondent, JST 23.

[81] Report of Dr Rahgozar dated 19 November 2021, JST 24 TB 396.

[82] JST 25 and statement of applicant [60].

[83] Report of Dr Rahgozar dated 19 November 2021, JST 24 TB 396.

[84] JST 25 and statement of applicant [60].

[86] Expert report of Dr Khalid, TB 65 at TB 78.

[87] Transcript of Proceeding 169, 24 -27; and 171,30 -31.

[90] As pleaded by the applicant in paragraph 33 of his amended Points of Claim.

[91] MM 13 attached to witness statement of Mr Melican, see TB 599.

[93] Leung v Chung [2023] VSC 38 [50].

[94] [2014] VCAT 472.

[97] [2015] VCAT 2056.

[99] See attachment FV1A attached to the statement of Dr Vukasin at TB 104.

[100] See Transcript of Proceeding at 255,18 -29.

[101] Letter dated 28 June 2021 from Dr Vukasin to the applicant's solicitors sent by them to the principal FV7 at TB 127, and statement of applicant [8]and attachment JST 23.

[103] Report of Dr Rahgozar dated 19 November 2021, JST 24 at TB 396.

[104] Supplementary report of Dr Rahgozar dated 4 February 2022 JST 28 at TB 408.

[105] Report of Dr Rahgozar 19 November 2021 page 3 and 4 TB 395 - 396.

[106] Report of Dr Rahgozar 4 February 2022 TB 411.

[107] See generally transcript 259 -261.

[108] Statement of applicant [64] TB 148.

[110] Statement of Mr Melican [65] - [67] TB 505.

[111] Statement of Mr Schutz [20] TB 444.

[112] Statement of Ms Perry TB 674 [19] - [20].

[113] Statement of Ms Perry [28(f)].

[114] Attachment AP 1 to statement of Ms Perry at TB 684.

[115] Transcript of Proceeding 65,27 -31.

[116] Transcript of Proceeding 265,23 -266;106.

[117] First statement of applicant [63] TB 148.

[118] Statement of Ms Perry [18] at TB 676.

[120] Statement of Ms Harding [30] TB 698.

[121] JST 32 attached to the witness statement of applicant TB 426.

[122] Statement of applicant [73] TB 150.

[123] Statement of Mr Melican [91] TB 509.

[126] Statement of Ms Perry TB 679 [37].

[127] See [49] of statement of Ms Perry.

[128] Transcript of Proceeding 313,16 -31.

[129] Witness statement of applicant TB 150 [76].

[131] Witness statement of applicant TB 150 [76].

[132] Witness statement of Mr Melican[99] - [100] TB 510.

[133] Transcript of Proceeding 280,23 -28.

[134] Statement of applicant TB 148 [78].

[135] Statement of Ms Perry [47] TB 681 [47].

[136] Transcript of Proceeding 280,14 -21.

[137] Transcript of Proceeding280, 1 -13.

[138] Attachment MM 25 to Mr Melican's statement at TB 658- 660.

[139] Statement of applicant TB 151 [80].

[140] Witness statement of applicant dated 29 August 2022 TB 151 - 152 [87].

[141] Witness statement of applicant dated 3 November 2022 TB 466 - 88 [32] - [36].

[142] Letter from Dr M Tuminello FV6 attached to the statement of Dr Vukasin TB 124.

[144] [2015] VCAT 1432.

[145] [2014] FCAFC 82.

[147] Collins v Smith [2015] VCAT 1992.

[148] Gilmore v Victoria Police [2021] VCAT 1250.

[149] Transcript of Proceeding 144, 26 -30.

[150] [1961] HCA 15; (1961) 105 CLR 569.

[151] [1970] AC 1.

[152] [2022] VSC 35.

[153] [2004] NSWADTAP 22 [27].

[154] [2001] HCA 52.

[155] (2009) 29 VAR 1; [2009] VCAT 646 [808].

[157] [2006] VCAT 1493 [69].