1. Section 75 of the VCAT Act relevantly provides:

(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 in substance; or

1. In determining applications under section 75, VCAT has consistently followed principles set out in Rabel v State Electricity Commission[1].
2. The principles can be summarised as follows. The Tribunal should be very cautious before summarily terminating a proceeding under section 75, as such action will have the effect of depriving a litigant of the opportunity to have his or her case decided in the ordinary course. The Tribunal should only proceed to strike out claims when satisfied that, because of one of the grounds in section 75, the case is manifestly hopeless, undoubtedly untenable or doomed to fail. It has been said that a high threshold must be met before VCAT can summarily dismiss or strike out all or part of a proceeding.[2] These matters are of special importance where the Applicant is a self-represented litigant.
3. It is also accepted that VCAT should not order summary dismissal in circumstances where the outcome of the case might depend upon findings of fact based on contested evidence.[3]
4. On the contrary, in considering the First Respondent's applications, I should take the Applicant's case at its highest, assuming that he could prove his allegations at a hearing.
5. In accord with those principles, I have not dismissed or struck out any part of the claim simply because it is in the wrong form or unclear. I have also assumed for the purpose of this decision that the Applicant will be able to prove the facts he asserts. I have not of course assumed that his legal arguments are correct.
6. Recently, the Court of Appeal explained the function of section 75 and I include that explanation here because the Applicant may wish to understand why his application can be dealt with under section 75 before his evidence has been heard. In Chopra v Department of Education and Training, the Court of Appeal said:

A provision similar to s 75 is typically found in the enabling Acts of most courts and tribunals. Its purpose is to enable the court or tribunal to protect the integrity of its processes by expeditiously disposing of a proceeding without a full hearing on the merits where the proceeding is frivolous, vexatious, an abuse of process, misconceived or lacking in substance. The expressions 'frivolous', 'vexatious' and 'abuse of process' have well established meanings which do not require exposition in the present case. The expressions 'misconceived' and 'lacking in substance', in essence, refer to proceedings in respect of which it is readily apparent that they are hopeless and bound to fail.[4]

1. VCAT has only the powers given to it by statute. It is a creature of statute and its jurisdiction derives entirely from statute[5].
2. Under the VCAT Act, the Tribunal has two kinds of jurisdiction - original jurisdiction and review jurisdiction. Roughly, they reflect the two elements of the Tribunal's name - we have a civil jurisdiction which is 'original' in the sense that the cases comes to VCAT without having been heard somewhere else first and an administrative or 'review' jurisdiction which reconsiders decisions made by other bodies.
3. Review jurisdiction is conferred on VCAT by many different Acts, each giving the Tribunal power to review decisions made under those Acts. For example, VCAT has power to review decisions made by VIT. Section 2.6.55 of the Education and Training Reform Act 2006 gives VCAT power to review decisions of VIT.
4. In the Victorian Civil and Administrative Tribunal Rules 2018 (VCAT Rules), item 3.28 of Schedule One allocates the work under that part of the Education and Training Reform Act 2006 to the Regulation and Review List of the Tribunal.
5. VCAT's review jurisdiction in the Regulation and Review List must be distinguished from judicial review. VCAT in the Regulation and Review List does not review the procedure of the original decision-maker but reconsiders the original decision on its merits. I note that most of the Applicant's submissions relied on procedural issues which are properly the subject of judicial review.
6. VCAT's task in its review jurisdiction is to stand in the shoes of the original decision-maker and make the correct or preferable decision having regard to the material before the Tribunal.[6]
7. In its review jurisdiction, the Tribunal has power to vary or set aside the First Respondent's decision, or to remit the Applicant's case to the First Respondent for a new decision, as set out in section 51 of the VCAT Act.
8. The Applicant has made an application in the Regulation and Review List about VIT's decision to cancel his registration and I understand that application has not yet been heard.[7]
9. The application before me, in VCAT's jurisdiction under the EO Act, is in VCAT's original jurisdiction. Under the EO Act, the Tribunal does not reconsider someone else's decision. Rather it hears an application about whether someone has contravened the EO Act. Item 8.3 of Schedule One to the VCAT Rules allocates this work to the Human Rights List of VCAT.
10. Under the EO Act, the Tribunal has jurisdiction only to determine whether there has been a contravention of that Act and to make orders based on that determination as set out in section 125 of that Act.

THE FIRST RESPONDENT'S APPLICATION UNDER SECTION 75

1. The First Respondent submits that the application is vexatious or an abuse of process on the ground that the Applicant has made the application to harass and intimidate the current and ex-employees of VIT. It cites letters and emails which it says the Applicant has sent the individually named Respondents and their employers and those who manage their teacher registration.
2. It is unnecessary for me to outline the correspondence. I note that the First Respondent submits some of the letters are an attempt to smear the reputations of individuals. For example, they are addressed to the registration bodies for teachers in other States and they say that the individual Respondents named in this case are "under investigation" for discrimination, perjury, false testimony and abuse of power.
3. The Applicant in his submissions did not respond to the allegation that his aim in bringing this proceeding is to be vexations.
4. While those letters and emails would certainly be vexing and unsettling to receive, or to be the subject of, I do not accept that their existence alone proves that the application was made only or substantially for the purpose of upsetting the individual Respondents.

Frivolous misconceived or lacking in substance

1. In support of its contention that the application is frivolous misconceived or lacking in substance, the First Respondent made submissions about why its treatment of the Applicant in relation to the hearing in 2015 had not been discriminatory.
2. The First Respondent submitted there was no evidence that it had discriminated against the Applicant in refusing him an adjournment. This submission could not succeed in my view because the Applicant has not yet been required to produce his evidence in support of the claim. It would be premature to dismiss the claim on that ground.
3. The First Respondent also submitted that it could demonstrate in detail that its dealings with the Applicant about his request for an adjournment gave him considerate assistance in explaining the process and what evidence was required about the illness which he said required an adjournment.
4. The First Respondent outlined how it had warned him it required a medical certificate or other evidence of illness and gave him time to acquire it, how it had given him an opportunity attend and apply in person for an adjournment, and how it had given him an opportunity to be heard by allowing him to make written submissions after the hearing (which he did not make).
5. A section 75 hearing does not require the parties usually to produce their evidence about the issues in dispute. Further, I note that there was no opportunity for the Applicant to question anyone from VIT about their assertions in the submissions. However, the submissions were supported by copies of various items of correspondence with the Applicant.
6. I am not in a position to make findings about the First Respondent's list of its evidence. I note however, that the First Respondent has indicated it would produce evidence to defend itself against the allegation of unlawful discrimination. This suggests it would argue that any detriment suffered by the Applicant was due to his failure to take advantage of various offers for him to meet VIT's requirements, rather than to the refusal to adjourn. However, that is a matter for consideration of the evidence. The fact the First Respondent says it has a defence to the Applicant's complaint is not sufficient reason to dismiss his application without hearing the evidence of both parties.
7. However, there is another reason why the application is misconceived. The Applicant in bringing his claim under the EO Act has used the wrong procedure to attempt to have the decision of VIT overturned.
8. Most of the material in the Applicant's submissions is about his complaint that the VIT hearing was not fair to him and reached the wrong outcome. While his submissions mention discrimination in passing, they mostly complain of a lack of natural justice or procedural fairness, bias, errors of jurisdiction, consideration of irrelevant material and other procedural errors.
9. Without going into a long consideration of the law, it is sufficient to say here that these issues are concepts relevant to judicial review of a decision. No statute gives judicial review powers to this Tribunal. As Halsbury's Laws of Australia explains, "judicial review is a supervisory jurisdiction of superior courts to control inferior courts, tribunals and administrators[8]".
10. A single allegation of unlawful discrimination cannot give the Tribunal power to review VIT's procedure in relation to the Applicant.
11. The problem with the Applicant's claim of discrimination is that even if proved it would not produce the outcome the Applicant seeks. To overturn VIT's decision by this route the Applicant would need to show that the discrimination caused him to lose his case at VIT. That is because, for VCAT to make orders under the EO Act it must be satisfied that the unlawful discrimination caused the applicant to suffer loss damage or injury - as set out in section 125 (a)(i) and (ii) of the EO Act. To determine that would require VCAT under the EO Act to examine procedure, in other words to undertake work which belongs in the jurisdiction of the Supreme Court. It would also require considering whether VIT's decision was correct and that is a question of review which must be considered in the Regulation and Review List of the Tribunal.
12. Therefore, all of the Applicant's submissions in this case about the failure of VIT to grant him procedural fairness, lack of natural justice, bias, error of law, consideration of irrelevant material, and other procedural issues, are irrelevant to this proceeding.
13. The Applicant has made his application under legislation which cannot produce the outcome he seeks. This is not merely a mistake about how the application form was completed. It is fundamentally a misconception to claim that the alleged discriminatory behaviour resulted in an adverse outcome at VIT. There may be many reasons for that outcome and the Tribunal has no power under the EO Act to examine all those reasons. The application under the EO Act cannot succeed and must be dismissed for this reason.
14. Even if the outcome the Applicant seeks is not to overturn VIT's decision but merely a finding that the adjournment refusal was discriminatory (which is possible under section 125 of the EO Act), it is still fundamentally misconceived in my view.
15. Halsbury's Laws of Australia offers the following comment about adjournments:

A refusal to grant a request for an adjournment may constitute a denial of procedural fairness where a party is not afforded sufficient time to prepare his or her case or given an opportunity to call evidence. Whether an adjournment should be granted depends upon the circumstances of the case and, because competing considerations need to be weighed, a reviewing court will exercise restraint in interfering with such a decision[9].

1. The decision to refuse an adjournment was part of the process of VIT's Panel. In order to examine whether the decision was discriminatory, it would be necessary to examine the procedure of the Panel. In my view, that could not be achieved without enquiring in a way which amounts to judicial review, which is outside the jurisdiction of this Tribunal.

1. The First Respondent submitted that the Applicant's correspondence to the individually named Respondents shows that he is using the process of making this application for the purpose of harassing and intimidating the individual Respondents, and that this is an abuse of process. I was not persuaded that the correspondence shows his claim amounts to an abuse of process.
2. The concept of "abuse of process" is not defined in the VCAT Act. It is a flexible concept and is intended to ensure that the processes of the Tribunal are used in good faith[10]. It assists the Tribunal to protect the integrity of its processes[11].
3. Abuse of process:

comprehends any proceeding that is being used in a way that is manifestly unjust, oppressive or unfair to a party to the proceeding or would otherwise bring the administrator of justice into disrepute among right-thinking people[12].

1. In my view, it is an abuse of process to apply about the same decision of VIT in the original jurisdiction of VCAT under the EO Act and in the Tribunal's review jurisdiction at the same time. If there was any possibility that the claim under the EO Act could succeed, then it could be struck out until the review application in the Regulation and Review List is determined. However, there is no possibility the EO Act claim can succeed so it should be dismissed.
2. That is not to say whether Mr Taylor's application in the Regulation and Review List is destined to succeed. That is not for me to decide.

THE FIRST RESPONDENT'S APPLICATION UNDER SECTION 76

1. The First Respondent also applied for the application to be summarily dismissed under section 76 of the VCAT Act for want of prosecution. Since I have already determined that it should be dismissed under section 75, I need not make any finding about the application under section 76.

[1] (1998) 1 VR 102.

[2] Towie v Victoria (2008) 19VR640; [2008] VSC 177 [29].

[3] Campagnolo v Benalla and District Football League Inc [2009] VSC 228 [41]; Chan v Kostakis [2003] VCAT 951 [9]; Owners Corporation v Hickory Group Pty Ltd [2015] VCAT 1683 [12].

[4] Chopra v Department of Education and Training [2019] VSCA 298 [134].

[5] Director of Housing v Sudi (2011) 33 VR 559; [2011] VSCA 266 [19] per Warren CJ.

[6] Mond v Perkins Architects Pty Ltd [2013] VSC 455 [50].

[7] Z845/2019, orders dated 6 August 2020.

[8] Halsbury's Laws of Australia [10 - 11000].

[9] Halsbury's Laws of Australia [10 - 12805]. This passage offers many examples of decisions supporting the principles as stated and these are omitted here. They demonstrate that the question of whether an adjournment should have been granted is an issue about procedural fairness.

[10] See Urban Tide Pty Ltd v Monash CC (2004) 16 VPR 183; [2001[ VCAT 540 [13].

[11] Chopra v Department of Education and Training [2019] VSCA 298 [134].

[12] Molyneux v VCAT (2007) 15 VR 531; 2007 VSC 89[53].