Soo v Department of Justice and Community Safety (Corrections Victoria)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2023 01072

Lin Seng Soo	Applicant
‑ and ‑
Department of Justice and Community Safety (Corrections Victoria)	Respondent
‑ and ‑
Victorian Equal Opportunity and Human Rights Commission	Intervenor

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JUDGE:	Quigley J
WHERE HELD:	Melbourne
DATES OF HEARING:	21, 22 and 26 May 2025
DATE OF JUDGMENT:	4 September 2025
CASE MAY BE CITED AS:	Soo v Department of Justice and Community Safety (Corrections Victoria)
MEDIUM NEUTRAL CITATION:	[2025] VSC 548

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ADMINISTRATIVE LAW — Appeal from VCAT — Summary dismissal of proceeding at VCAT — Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’), s 148 — Scope of appeal on a question of law from an order made — Ambit of appeal constrained to issues pertaining to order made — VCAT Act, s 76 application for summary dismissal for want of prosecution — Tribunal applied correct test for summary dismissal — VCAT Act, s 108 application not considered — Discretion of Court to dismiss appeal where ground of appeal made out but remittal nugatory — Section 148(7)(a) and (d), applied.

GROUNDS OF APPEAL — Failure to exercise jurisdiction ground conceded — Procedural fairness in the context of a self‑represented litigant — Doughty‑Cowell (Victoria Police) v Kyriazis [2018] VSCA 216, applied — No unfairness in all of the circumstances — Bias — No actual or apprehended bias established — Other grounds not within ambit of appeal — Leave to appeal granted but appeal dismissed.

Victorian Civil and Administrative Tribunal Act 1998 (Vic), Equal Opportunity Act 2010 (Vic), Charter of Human Rights and Responsibilities Act 2006 (Vic), Religious Tolerance Act 2001 (Vic), and Corrections Act 1986 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms Davidson Mr Mackenzie	Maurice Blackburn
For the Respondent	Ms Fitzgerald Ms Slater	Victorian Government Solicitors Office
For the Intervenor	Dr Hilly	Victorian Equal Opportunity and Human Rights Commission

TABLE OF CONTENTS

Introduction

Background

Hearing – 28 to 30 April 2021
Hearing – 27 September 2021
Tribunal Proceedings after 27 September 2021
Tribunal Orders and Reasons

Notice of Appeal

Questions of Law
Grounds of Appeal

The Legislation

VCAT Act
Corrections Act
Other statutes raised in this proceeding

Submissions

Applicant
Respondent
Intervenor

Analysis

Framework of Appeal – Leave considerations
Question 1 – Non‑consideration of the s 108 application
Questions 2 to 5, 7 to 9, 11 and 12 – Procedural fairness and related grounds
Question 2 – Consideration of the merits?
Questions 3 and 4 – Opportunities to make submissions and cross‑examine
Question 5 – Opportunity to make submissions on cl 18 of sch 1
Question 7, 8, 9, 11 and 12 – Charter, EO Act and RRT Act grounds

Question 6 – The ‘test’ raised by cl 18?
Question 10 – Provision of ‘services’ under s 44 of the EO Act
Question 13 – The test and alleged error in respect of the s 76 application
Question 14 – Bias

Conclusion

HER HONOUR:

INTRODUCTION

This proceeding concerns an application made under s 148 of the Victorian Civil and Administrative Tribunal Act1998 (Vic) (‘VCAT Act’), against the orders made on 10 February 2023 by the Victorian Civil and Administrative Tribunal (‘VCAT’ or ‘the Tribunal’) summarily dismissing the Applicant’s proceeding (H180/2019) for want of prosecution pursuant to s 76 of the VCAT Act.[1]
[1]Soo v Corrections Victoria Department of Justice and Community Safety (Human Rights) [2023] VCAT 135 (‘Reasons’).

The Applicant, Lin Seng Soo, is a 72‑year‑old man who brought proceedings in the Tribunal under the Equal Opportunity Act 2010 (‘EO Act’), the Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Charter’), and the Racial and Religious Tolerance Act 2001 (Vic) (‘RRT Act’), based on allegations of, inter alia, discrimination and victimisation against the Respondent, the Department of Justice and Community Safety (Corrections Victoria) (‘DJCS’), said to have occurred during his incarceration in prison between 2014 and 2018.

The appeal proceeding before this Court raised 14 questions of law supported by 32 grounds. The Applicant seeks to have the Tribunal’s entire order set aside and the matter remitted to the Tribunal for re‑hearing. DJCS conceded the first question of law (which, as will be seen, concerns a failure to exercise jurisdiction) but opposed the remaining 13 questions and their related grounds.

The Victorian Equal Opportunity and Human Rights Commission (‘the Commission’) intervened in this proceeding pursuant to s 40(1) of the Charter, with the Court granting leave pursuant to s 159 of the EO Act on 2 May 2024. The question of particular interest to the Commission is whether Corrections Victoria provides a ‘service’ for the purposes of engaging the jurisdiction of the EO Act. The Commission did not seek to be heard on the application of the EO Act or the Charter on the factual matters underlying the appeal, but made submissions in respect of the construction of s 44 of the EO Act and its intersection with the Corrections Act 1986 (Vic) (‘Corrections Act’) and the Charter.

BACKGROUND

On 30 October 2013, the Applicant was found guilty, at trial by jury in the County Court of Victoria, of a series of related sexual offences. On 21 February 2014, the Applicant was convicted and sentenced to five years’ imprisonment with a non‑parole period of three years. The Applicant was received into prison on the day of his conviction.

The Applicant was housed at the Hopkins Correctional Centre (‘Hopkins’) between 5 March 2014 until 30 October 2018, when he was released upon the expiry of his sentence. Hopkins is a medium security prison at Ararat that exclusively houses prisoners who require protection from the mainstream prisoner population.

The Applicant was aged between 60 and 65 during his period of incarceration and reportedly suffered from anxiety, depression, arthritis, diabetes, high blood pressure, Post Traumatic Stress Disorder (‘PTSD’), and a limp.

The Applicant brought proceedings against the Respondent in the Tribunal on the grounds that he was discriminated against by prison officers due to his race, age, and disability. The incidents of which the Applicant complains all allegedly occurred whilst serving his sentence in custody at Hopkins.

On 2 July 2019, the Applicant filed an application in VCAT, which commenced proceeding H180/2019. The application included:

(a) allegations of discrimination in the provision of goods and services on the basis of his age, religious belief or activity, disability and race;

(b) claims of victimisation, authorising or assisting discrimination, racial vilification and religious vilification; and

(c) allegations of breaches of the Applicant’s ‘human rights’ including: to be provided with food; to make complaints against prison management; to not be subjected to torture or cruel, inhuman or degrading treatment or punishment; to be free from discrimination; to freedom of association; to send and receive letters without those letters being opened by prison staff; to send and receive other letters uncensored by prison staff; to practise a religion; to the highest attainable standard of physical and mental health.

The Applicant was self‑represented throughout the proceedings in VCAT.[2] In his application, the Applicant ticked ‘No’ to the question ‘do you require any special assistance at the hearing’. However, he also ticked the box for ‘other assistance’, stating ‘have health issues (depression, arthritis, dementia) and may have difficulty conducting my case properly’.
[2]He was represented by Victoria Legal Aid (‘VLA’) at a directions hearing on 15 October 2019 but was otherwise self‑represented. The VLA representation was indicated in the VCAT Orders dated 15 October 2019.

The material before the Tribunal records that the Applicant has a long history of difficulties with his mental health and cognitive function, with impairment of his day‑to‑day capacity to participate in and enjoy structured activities, impairment of cognitive function (memory and concentration), and with the possibility that his anti‑depressant medication may be having adverse effects upon his memory and concentration but that this may also be due to early dementia.

The Applicant was born in Malaysia and emigrated to Australia in 1970, at the age of 17. As is apparent from the written material and the audio recordings of the hearing, the Applicant has a reasonable command of English, but it is not his first language.

On 10 March 2020, the Respondent filed an application under ss 75(1)(a) and 76(1) of the VCAT Act, and clauses 18 and 66K of sch 1, to summarily dismiss the Applicant’s application. The application was listed for hearing on 3 April 2020 but was postponed due to COVID. The application was subsequently listed for hearing on 20 October 2020.

The Applicant filed submissions addressing a range of matters including:

(a) direct and indirect discrimination under the EO Act;

(b) violation of the Applicant’s human rights in the Charter, including privacy (s 13), freedom of expression (s 15), liberty and security (s 21), and humane treatment and respect for dignity (s 22);

(c) allegations of breaches of provisions of the Corrections Act, the Corrections Regulations 2009 (Vic) and the Commissioner’s Requirements;

(d) victimisation; and

(e) allegations of breaches of the Disability Discrimination Act 1992 (Cth).

The Respondent’s application to summarily dismiss or strike out the proceeding under s 75 of the VCAT Act was heard on 20 October 2020. On 17 November 2020, the Tribunal (Senior Member Burdon‑Smith) made orders that the Applicant’s claim of victimisation under s 104 of the EO Act be dismissed as misconceived and lacking in substance. The Respondent’s application was, in all other respects, dismissed.[3]
[3]VCAT Orders dated 17 November 2020.

A timetable was set for the filing of material with the matter to be listed for a one‑day hearing on a date to be notified.

The matter was listed for hearing on 11 March 2021 via Zoom.

On 10 December 2020, the Applicant filed Further Particulars of Claim in accordance with the timetable. This included claims of discrimination under the EO Act and a breach of rights under the Charter.

The Respondent sought an extension of time to respond to the Further Particulars of Claim, and a new timetable was set and the hearing listed for 11 March 2021 was vacated. A new hearing was set for 28, 29 and 30 April 2021.

The Respondent’s defence addressed the discrimination claims and asserted that the discrimination claims were vexatious, an abuse of process and/or were ’colourable’, and therefore insufficient to support an adjunct Charter claim.

Between January and April 2021, the parties filed witness statements, the Applicant filing a statement on his own behalf and two other lay witnesses.[4] The Respondent filed witness statements of nine witnesses.[5]
[4]Witness statements of Mr Frank Hartdobler dated 18 March 2021 and of Mr Ian Stewart dated 29 March 2021 and other material on which he intended to rely.
[5]Witness statements of Mr Miles Rusden dated 25 February 2021, Mr Noel Baird dated 2 March 2021, Mr Simon Comitti dated 25 February 2021, Mr Daniel Fontana dated 5 March 2021, Mr Adam Taylor dated 3 March 2021, Mr Craig Cooper dated 16 March 2021, Mr Josh Seebohm dated 19 March 2021, Ms Kylie Downie dated 18 March 2021, and Mr Scott Jacques dated 22 March 2021.

Hearing – 28 to 30 April 2021

The hearing commenced on 28 April 2021 before Judge Jenkins. The hearing was conducted via Zoom. The Applicant was self‑represented. The Respondent was represented by solicitors and counsel. The matter proceeded over the course of 28, 29 and 30 April 2021.

The Applicant gave evidence and was cross‑examined by counsel for the Respondent over the first three days of the hearing, and Mr Stewart and Mr Hartdobler were interposed and gave evidence and were cross‑examined. One Respondent witness, Mr Rusden, also gave evidence in this period.

Discussion occurred on the last day of the hearing with respect to further days of hearing of evidence, and the matter was listed for a further six days on 15 to 21 July and 23 July. The Tribunal recognised the Applicant’s difficulties in concentration and this, in part, factored into the decision to add additional hearing time.

The proceeding was adjourned on the request of the Respondent. The matter was listed for a further hearing of four days, being 27 to 29 September and 1 October 2021. This allocation came about as a result of an assessment by the Tribunal member that the matter could be concluded within these four days.

Hearing – 27 September 2021

The hearing resumed on 27 September 2021 before Judge Jenkins. The hearing continued via Zoom. At the commencement of the hearing, counsel for the Respondent outlined a timetable that proposed two witnesses’ evidence (which included Mr Jacques, the General Manager of the prison, who was a witness the Applicant had previously indicated would take some time to cross‑examine) be completed in one day with other witnesses scheduled for 28 and 29 September. A number of witnesses were unavailable until after 12 October 2021 and thus a further date of 18 October 2021 was proposed, instead of returning on 28 September.

At the hearing on 27 September, the Applicant raised difficulties encountered by reason of the recent production by the Respondent of a large amount of material. Mr Jacques gave evidence adopting his two statements and was cross‑examined by the Applicant for approximately two hours. Mr Jacques raised that he had urgent matters relating to the COVID‑19 pandemic that he had to attend to and asked to be excused. The Tribunal excused Mr Jacques for the remainder of the day and directed the Applicant to put his questions in writing and give Mr Jacques an opportunity to respond in writing. The Applicant was unhappy about proceeding in this manner.

Four other witnesses were called and cross‑examined by the Applicant between 27 and 29 September. Prior to the lunch break on 29 September, Judge Jenkins informed the parties that she would not be allowing the Applicant to directly cross‑examine Ms Downie and that all questions were to be put through her, with counsel for the Respondent being given an opportunity to object to them before they were put to Ms Downie. This process required an additional day be added to the timetable, and thus the cross‑examination of Ms Downie continued on 1 October 2021.

On 1 October, prior to adjourning to 18 October 2021, the Tribunal directed the Applicant to put all remaining questions for Mr Jacques in writing and directed he prepare a list of questions for Ms Downie, determining that the cross‑examination would continue in the same manner.

At the completion of Ms Downie’s evidence, the Tribunal informed the Applicant that she was no longer intending to require the recall of Mr Jacques for cross‑examination, but that any further questions could be put in writing. She advised him that the questions he wished to put would have to relate to the statement that the witness made and be relevant to the Applicant’s claim and not ‘every grievance’ that he might have had about the way he was treated in prison; rather, they had to relate to the way in which the Applicant says he had been discriminated against for the reasons that he had given and the attributes referred to.[6]
[6]Transcript of Proceedings, Soo v Corrections Victoria Department of Justice and Community Safety (VCAT, H180/2019, Judge Jenkins, 1 October 2019) 900.21–29 (‘Transcript’).

In relation to the remaining three witnesses, the Tribunal directed that the Applicant put all questions in writing and that cross‑examination would not occur personally but through the Tribunal. The Tribunal went on to set out various limits that would be placed on the questioning, stating that the Applicant had already been wasting the Tribunal’s time and the Respondent’s time because he did not follow instructions, and that the evidence of all three witnesses needed to be completed within the day and there would be no further opportunity afforded to him.[7]
[7]Ibid, 907.12–29.

The Applicant complained that he would have difficulty putting the questions together, however the Tribunal pointed out that he had been provided 17 days to do so.[8] The Tribunal commented to the Applicant that there was nothing new and that he had had the witness statements ‘for a long time’ and that ‘[t]here comes a point where we have to put an end to it’, and that the Tribunal had given him ‘more than enough time’.[9]
[8]Ibid, 911.8–11.
[9]Ibid, 911.13–16.

The Applicant sought access to either the transcript or the audio recording. The Tribunal refused this request, determining that it was not necessary in this case.

The matter was again adjourned part‑heard until 18 October 2021.

Tribunal Proceedings after 27 September 2021

Between 5 October 2021 and 10 February 2023, the Applicant provided the Tribunal with a series of medical certificates which variously certified that he was unfit to appear in any further hearings or in further hearings before Judge Jenkins. These medical certificates were for the following periods:

(a) 4 October to 3 November 2021;

(b) 31 October 2021 to 28 February 2022;

(c) 20 February to 30 May 2022;

(d) 1 May to 31 July 2022;

(e) 24 July to 24 September 2022;

(f) 18 September to 24 November 2022; and

(g) 10 December 2022 to 10 February 2023.

On 31 August 2022, the Respondent applied under s 76 of the VCAT Act for the Applicant’s claim of unlawful discrimination to be dismissed for want of prosecution (the ‘s 76 application’). The Respondent sought orders to facilitate the resolution of the s 76 application ‘on the papers’, requesting a timetable for the filing of an outline of submissions and any material upon which the parties seek to rely to occur on or before 3 November 2022. Orders to this effect were made by the Tribunal on 15 September 2022.

On 20 September 2022, the Applicant provided a medical certificate certifying he was unfit to attend a further Tribunal hearing until 24 November 2022. The Applicant opposed the s 76 application on the grounds that he wanted the matter to proceed ‘when he was medically well enough’ to proceed.

On 3 October 2022, the Applicant made an application for reconstitution of the Tribunal pursuant to s 108 of the VCAT Act (the ‘s 108 application’). The s 108 application requested that the presiding member (Judge Jenkins) ‘voluntarily stand down’ from hearing the VCAT case on the grounds that:

(a) the Applicant had been denied natural justice and a fair hearing; and

(b) the presiding member was biased (in favour of the Respondent).

The Applicant sought that a newly appointed Senior Member ‘take over the case and restart the hearing’.

The Respondent and the Applicant both filed submissions. On 3 October 2020, the Respondent filed written submissions in respect of the s 76 application, together with an affidavit sworn 3 October 2022 by Renae Petulla.[10]
[10]CB 2532–2536.

On 7 November 2022, the Applicant filed his submissions,[11] which included reference to his s 108 application. These submissions asserted that the Applicant was so traumatised by the Tribunal, to the point of being suicidal, that he had to seek medical help and give a series of medical certificates to excuse him from further Tribunal hearings due to his fragile mental health. The Respondent filed submissions in reply,[12] which included submissions in response to the s 108 application.
[11]CB 2547–2551.
[12]CB 2552–2553.

Tribunal Orders and Reasons

On 10 February 2023, the Tribunal made orders that proceeding H180/2019 be dismissed under s 76 of the VCAT Act for want of prosecution (the ’VCAT Orders’), including the Tribunal’s reasons (‘Reasons’).[13] Section 76 is titled ‘Summary dismissal for want of prosecution’ and is extracted below at [70] in the ‘Legislation’ section of this judgment.
[13]Note s 117(6) of the VCAT Act which states: ‘The reasons for an order, whether oral or written, form part of the order.’

The Tribunal’s Reasons set out the background and nature of the proceeding and the procedural history.[14] The Tribunal identified that the proceeding was brought pursuant to s 122 of the EO Act and that the Applicant bore the onus of proving, on the balance of probabilities and to a comfortable level of satisfaction, that the Respondent engaged in the conduct alleged.[15]
[14]Reasons, [1]–[29].
[15]Ibid, [31].

The Tribunal recorded that the Respondent’s application for summary dismissal was made under s 76 of the VCAT Act and that the Respondent had the burden in respect of that application.[16]
[16]Ibid, [33]–[34].

The Tribunal set out the legislative framework and provisions of the EO Act, RRT Act, and the Charter, and related legal principles.[17] The Applicant claimed direct and indirect discrimination on the basis of age, race, religious belief or activity and disability, in breach of the EO Act in the area of the provision of goods and services.
[17]Ibid, [35]–[71].

The Tribunal explained that, for the Applicant’s direct discrimination claims to succeed, he must establish that the Respondent treated him unfavourably because of a protected attribute in the area of goods and services.[18] In a claim of indirect discrimination, he must establish that the Respondent imposed a requirement, condition or practice that has, or is likely to have, the effect of disadvantage in persons with an attribute that he has in the area of goods and services.[19] The Tribunal set out a number of preliminary observations on the evidence that it had received, and the evidentiary and legal hurdles it had identified which confronted the Applicant. The Tribunal explained the basis of its preliminary view in respect of the Charter rights and the preliminary legal question of whether the EO Act applied.
[18]Ibid, [44].
[19]Ibid, [45].

It observed in its preliminary view, in respect of the long list of Charter rights the Applicant claimed had been breached by the Respondent, that the evidence presented to the Tribunal indicated that the Applicant’s ‘medical, psychological and dietary needs were appropriately met’.[20] Furthermore, the evidence ‘did not otherwise identify any breaches of the Charter which were not consistent with reasonable limitations which the Respondent was entitled to impose within a prison context’.[21]
[20]Ibid, [71].
[21]Ibid.

In respect of the threshold question arising from the EO Act as to whether the Respondent provided a ‘service’ to the Applicant, the Tribunal concurred with the Respondent’s submission that a failure or refusal to provide or an interference with the enjoyment of the statutory right set out in s 47 of the Corrections Act, is not the failure to provide a ‘service’ for which action can be taken under the EO Act.[22] Rather, it is a breach of the Corrections Act and the proper means by which a prisoner is required to bring such a failure before the courts is ‘by way of a judicial review application with respect to the unlawfulness arising under s 47’ of the Corrections Act.[23]
[22]Ibid, [80]–[81].
[23]Ibid.

The Tribunal agreed with the Respondent’s submission, having received the witness statements, evidence in chief and most of the cross‑examination, that the matters about which the Applicant complained:[24]

[16.1]arose from the fact of the Applicant being a sentenced prisoner in the legal custody of the Secretary [of the DJCS] and subject to the Corrections Act and Corrections Regulations;
[16.2]are matters which are inherent parts of the Applicant’s incarceration and not services to him; and
[16.3]were undertaken in performance of and in compliance with the statutory duties in the Corrections Act.

[24]Ibid, [82].

The Tribunal referred to a number of cases where prisoners alleged there had been a breach of the statutory rights in s 47 of the Corrections Act, noting that ‘the proper means by which a prisoner is required to bring such a failure before the courts is by way of a judicial review application’.[25] These cases included Haigh v Ryan,[26] Minogue v Dougherty,[27] Minogue v Shuard,[28] and Castles v Secretary to the Department of Justice.[29]
[25]Ibid, [80] and n 36.
[26][2020] VSC 102 and [2018] VSC 474.
[27][2017] VSC 724.
[28][2017] VSCA 267 and [2016] VSC 797.
[29][2010] VSC 310.

The Tribunal set out the authorities which it considered relevant to the meaning of the term ‘services’.[30] These included Waters v Public Transport Corporation,[31] IW v City of Perth,[32] Rainford v Victoria,[33] Robinson v Commissioner of Police, NSW Police Force,[34] Charles v State of Victoria (Corrections Victoria),[35] and Kavanagh v Victorian Workcover Authority trading as WorkSafe Victoria.[36]
[30]Reasons, [84]–[102].
[31](1991) 173 CLR 349, 404–405 (McHugh J).
[32](1997) 191 CLR 1, 16–17 (Brennan CJ and McHugh J).
[33](2007) 167 FCR 1, [73] (Sundberg J) and (2008) 167 FCR 26, [9] (Full Court).
[34][2012] FCA 770, [178], [180].
[35][2015] VCAT 375, [56]–[58] (Senior Member Proctor).
[36][2011] VCAT 2009, [48] (Judge Lacava).

The Tribunal, having discussed these authorities, agreed with the Respondent that the claims made by the Applicant did ‘not relate to services within the meaning of the relevant EO Act definition’.[37]
[37]Reasons, [103].

In this context, the Tribunal then expressed its ‘preliminary view of the Applicant’s complaints’ that the chances of the Applicant succeeding under any of his complaints were negligible, both by reason of legal impediment and ‘the deficiency of credible and relevant evidence’.[38] The Tribunal then summarised the difficulties faced by the Applicant as follows:[39]
[38]Ibid, [104].
[39]Ibid, [105].

a.I accept that the Respondent does not provide ‘goods and services’ for the purposes of a claim under the EO Act; and

b. The Applicant’s complaints do not fall within the RRT Act; and
c. The Charter rights have either not been limited; are necessarily and reasonably limited by the context of a penal system or the claims rely upon proof of discrimination under the EO Act.

The Tribunal then discussed the further legal and evidentiary impediments it had identified in the Applicant’s case.

The Tribunal referred to the Respondent’s application for summary dismissal of the Applicant’s case based on s 75 of the VCAT Act (on the grounds that it is misconceived and lacking in substance) that had been dealt with earlier in the proceeding by Senior Member Burdon‑Smith. At that time, the Respondent in the alternative had requested an order pursuant to s 76 of the VCAT Act summarily dismissing the discrimination and vilification complaints because they related to events that allegedly took place more than 12 months before the application was made. The earlier order of the Tribunal dismissed the victimisation claim on the basis that it was misconceived and lacking in substance.[40] The Respondent’s application was otherwise dismissed, there being a very high threshold to meet before the Tribunal can be satisfied there is no arguable case.
[40]Reasons, [108], citing Soo v Corrections Victoria Department of Justice & Community Safety [2020] VCAT 1224, [22].

The Tribunal expressed the view that it was now appropriate to revisit the s 76 application given the delays which have occurred since the hearing was adjourned in September 2021.[41] The Tribunal set out the timeline of the proceeding and noted that most of the Applicant’s complaints related to alleged conduct between one and five years prior to the filing of his application with the Tribunal on 29 July 2019. The Tribunal then stated as follows:[42]

In turn, the Hearing did not commence until April 2021, and it is now nearly 2 years later. At best, when giving evidence, the Applicant and witnesses have had to recollect events between at least 3 to 7 years ago. I also have regard to the Respondent Counsel’s submissions that the delay adversely impacts upon a Presiding member’s reasonable capacity to recall all the details of the evidence given and the assessment of ten witnesses. In my view, these circumstances have a significant potential to impact adversely upon the resolution of the proceeding fairly. For this reason alone, it is appropriate to dismiss the proceeding under s 76 of the VCAT Act in accordance with Clause 18 of Schedule 1.

[41]Reasons, [109].

[42]Ibid, [110].

The Tribunal proceeded to express further preliminary views about the Applicant’s discrimination claim, as follows:[43]

The Applicant has made many claims of unfavourable treatment by one or more of the prison staff, which he found hurtful and humiliating. Putting aside whether such conduct amounts to the provision of goods and services, in my view, the evidence has not demonstrated how the Respondent treated him unfavourably, because of his age, race, disability or religious belief. This is a fatal deficiency in the Applicant’s evidence.
It must also be borne in mind that unacceptable or antisocial behaviour such as inexplicable rudeness, ill‑mannered or insulting behaviour and lack of consideration for others does not of itself necessarily amount to discriminatory conduct. The recipient of such conduct may be understandably aggrieved, shocked and hurt. The Applicant’s own witnesses certainly attested to bad behaviour which they occasionally experienced by some prison officers. However, it does not necessarily follow that such conduct will satisfy the elements of discriminatory behaviour under the EO Act.

[43]Ibid, [111]–[112] (emphasis in original).

The Applicant’s discrimination claims predominantly focused upon the officers’ conduct of cell searches, the removal of food containers from the Applicant’s cell, their restriction on ingredients for biscuit baking, and his volume of accumulated food, ingredients and documents requiring storage. The Tribunal expressed the view that ‘the volume of the Applicant’s biscuit baking became excessive and whilst it may have been tolerated and overlooked for periods, the evidence revealed that the Respondent acted within its rules, practices and procedures’.[44] Furthermore, the Respondent’s witnesses expressed reasonable concerns for ‘managing food trafficking and stand over behaviour by prisoners’.[45]
[44]Ibid, [114].
[45]Ibid.

Separately, the Tribunal noted that certain complaints made by the Applicant appear to have been dealt with elsewhere.[46] This included his claims concerning transportation and storage of property, particularly when being moved between facilities. This had been the subject of a conciliation agreement at the Commission and, accordingly, was not a matter which should have been brought before the Tribunal. In addition, the Applicant’s complaints with respect to the same facts concerning the reading of his legal documents were made to the Office of the Victorian Information Commissioner (‘OVIC’) and to the Commission. In March 2018, OVIC had written to the Applicant notifying him that his complaints had been dismissed in accordance with s 66(5) of the Privacy and Data Protection Act2014 (Vic) and no further action may be taken in relation to the complaint. Consequently, this is not a matter which should have been brought before the Tribunal.
[46]Ibid, [115]. All details in this paragraph are from [115].

In respect of the Applicant’s diabetes and dietary requirements, the management of these conditions was documented and there was no evidence before the Tribunal that the Applicant had suffered any adverse medical consequences.[47]
[47]Ibid, [117].

The Tribunal expressed the view that the Applicant’s complaints concerning delivery of his mail, or the alleged opening of mail, did not identify a protected attribute.[48] The Respondent ‘provided a reasonable and plausible account for the limitations to their involvement in mail delivery and the overriding security issues’.[49]
[48]Ibid, [118].
[49]Ibid.

The physical assaults upon the Applicant by other prisoners were not denied. However, the Applicant did not allege that the Respondent’s alleged failure to prevent him from being assaulted was ‘because of any protected attribute under the EO Act’.[50] The Respondent ‘had policies and procedures in place to minimise the risk of violence between prisoners but is not responsible for the actions of prisoners and the actions of prisoners are not part of any “service” provided by the Respondent’.[51]
[50]Ibid, [119].
[51]Ibid.

In considering the want of prosecution of the Respondent, the Tribunal identified the overriding consideration in determining such an application is ‘the interests of justice in the Tribunal’s ability to control its own processes to ensure that those interests are not compromised’.[52] In considering the application, the Tribunal identified that it should consider ‘similar matters to those considered by the courts, in determining a want of prosecution claim’, including:[53]
[52]Ibid, [120].
[53]Ibid, [121].

a.Whether there has been an inordinate and inexcusable delay by a party in taking a step in the proceeding.
b. Whether the delay means that there will be a substantial risk that a fair trial will not be possible.

c. Any prejudice to the respondent that is caused by the delay.
d. Any hardship to the applicant if the matter was dismissed.

The observations of Wilcox and Gummow JJ in Lenijamar Pty Ltd v AGC (Advances) Ltd (‘Lenijamar’)[54] were referred to as providing useful guidance for determination of the application.[55] Lenijamar referred to two situations as ‘obvious candidates for the exercise of the power’ to dismiss for want of prosecution and made observations as a consequence thereof, as follows:[56]

[1] cases in which the history of non‑compliance by an applicant is such as to indicate an inability or unwillingness to co‑operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period and [2] cases — whatever the applicant’s state of mind or resources — in which the non‑compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent. Although the history of the matter will always be relevant, it is more likely to be decisive in the first of these two situations. Even though the most recent non‑compliance may be minor, the cumulative effect of an applicant's defaults may be such as to satisfy the judge that the applicant is either subjectively unwilling to co‑operate or, for some reason, is unable to do so. Such a conclusion would not readily be reached; but, where it was, fairness to the respondent would normally require the summary dismissal of the proceeding.

[54](1990) 27 FCR 388 (‘Lenijamar’).

[55]Reasons, [122].

[56]Lenijamar, 396. Extracted in the Reasons, [122], with this emphasis added by the Tribunal.

The Tribunal accepted that both categories applied in the present case, finding that the Applicant was ‘unable’ rather than ‘merely … unwilling’ to complete the final day of the hearing, and that the hearing could not be completed ‘within an acceptable period’.[57] From October 2021, the Applicant had provided seven medical certificates of an unfitness to proceed extending over 16 months.[58] There was ‘no current indication of when the Applicant might be well enough’ to continue with the hearing.[59] Consequently, the Tribunal formed the view that ‘the lengthy delay and uncertainty of recommencing the [h]earing was now intolerable and unacceptable’.[60]
[57]Reasons, [123].
[58]Ibid, [124].
[59]Ibid, [126].
[60]Ibid, [127].

In reaching this conclusion, the Tribunal did not criticise the Applicant in any way. However, the Tribunal formed the view that the interests of justice required that the proceeding be dismissed.[61] The Tribunal was satisfied that ‘any further delay in the conduct of the proceeding [would] significantly impact adversely upon the Tribunal’s ability to conclude a fair hearing for both parties’.[62] The Tribunal was also satisfied that the further conduct of the proceeding was ‘unlikely to result in a favourable outcome for the Applicant’.[63]
[61]Ibid, [128].
[62]Ibid, [130].
[63]Ibid, [131].

NOTICE OF APPEAL

The Applicant filed an initial notice of appeal on 10 March 2023 and an amended notice of appeal on 16 August 2024.[64]
[64]I note that the documentation instituting the application for leave to appeal and draft notice of appeal appeared to have been prepared by the Applicant personally. During the course of interlocutory proceedings, JR Keith referred the proceeding to the Victorian Bar Pro Bono Scheme and it would appear that, from the quality of the documents that then followed, assistance was provided to the Applicant. As a consequence, the preparation of the submissions are more extensive and targeted than the original documentation.

Questions of Law

The 14 questions of law posed by the amended notice of appeal can be summarised as follows:

(a) Did the Tribunal err in law by failing to determine the s 108 application? (Question 1)

(b) Did the Tribunal deny the Applicant procedural fairness, breach the right to a fair hearing in s 24 and/or the right to recognition and equality before the law in s 8 of the Charter, or otherwise err in law by:

(i) Failing to inform him that it intended to consider the merits of his complaint in determining the Respondent’s application under s 76 of the VCAT Act? (Question 2)

(ii) Making findings in respect of the merits of his complaint in circumstances where the hearing was part heard and the Applicant had not been provided with an opportunity to cross‑examine all of the Respondent’s witnesses, to address any perceived deficiencies in his evidence, or to make submissions? (Question 3)

(iii) Imposing restrictions upon the Applicant’s cross‑examination of the Respondent’s witnesses? (Question 4)

(iv) Determining to dismiss the proceeding under s 76 of the VCAT Act in accordance with cl 18 of sch 1 without informing him that it was considering so determining, giving him an opportunity to make submissions in respect of cl 18 of sch 1, or otherwise providing the Applicant a reasonable opportunity to respond? (Question 5)

(v) Finding that the Applicant had not demonstrated that the Respondent did not treat him unfavourably because of his age, race, disability or religious belief? (Question 7)

(c) Did the Tribunal misconstrue or misapply the legal test in cl 18 of sch 1 to the VCAT Act, or make findings that no reasonable Tribunal member could make, in determining to dismiss the proceeding under s 76 of the VCAT Act in accordance with cl 18 of sch 1? (Question 6)

(d) Did the Tribunal misconstrue or misapply the legal tests for discrimination in ss 7–11 of the EO Act, or otherwise err in law in finding that the Respondent had not demonstrated that he had been treated unfavourably because of his age, race, disability or religious belief? (Question 8)

(e) Did the Tribunal make a finding that was not open to it in determining that the Applicant did not allege that the Respondent’s failure to prevent him from being assaulted was because of any protected attribute under the EO Act? (Question 9)

(f) Does the Respondent provide a service to prisoners within the meaning of s 44 of the EO Act? (Question 10)

(g) Did the Tribunal make a finding that was not open to it in finding that the evidence failed to identify any breaches of the Charter which were inconsistent with reasonable limitations which the respondent was entitled to impose in a prison context? (Question 11)

(h) Did the Tribunal make a finding that was not open to it, in finding that no evidence met the test for vilification per s 7(1) of the RRT Act? (Question 12)

(i) Did the Tribunal misconstrue or misapply the legal test in s 76 of the VCAT Act or make a finding that was not open to it, in finding that the proceeding should be dismissed for want of prosecution? (Question 13)

(j) Was the Tribunal’s decision affected by actual or apprehended bias? (Question 14)

Grounds of Appeal

The 32 grounds of appeal are linked to the various questions of law and, in summary, relate to:

(a) the failure of the Tribunal to determine the s 108 application prior to determining the s 76 application (Ground 1);

(b) the procedure adopted by the Tribunal in determining the Respondent’s application under s 76 of the VCAT Act in making findings as to the merits of his claims:

(vi) without notifying him or affording him a reasonable opportunity to be heard on those matters (Grounds 2 and 3); and

(vii) in circumstances where the evidence had not been completed (Grounds 4 and 5);

(c) the restrictions placed on the Applicant in his cross‑examination of witnesses including requiring him to put questions in writing in advance and requiring all questions to go through the Tribunal member and requiring the cross‑examination of Mr Jacques to be completed through written questions and answers (Grounds 6 and 7);

(d) the dismissal of the proceedings on the basis of the complaint related to matters that occurred more than 12 months prior to making a complaint under cl 18 of sch 1 to the VCAT Act when the Respondent’s application for summary dismissal on that basis had already been refused, some of the conduct complained of occurred less than 12 months prior to the making of the complaint, and the Respondent was not asserting any prejudice and there were potential explanations for the delay (Grounds 8 to 11);

(e) the findings of the conduct complained of could not or did not amount to discrimination under the EO Act (Grounds 12 to 15);

(f) the findings that the Respondent was not providing a service to the Applicant for the purposes of s 44 of the EO Act (Grounds 16 to 19);

(g) the findings in respect of the Applicant’s claims in respect of breaches of his rights under the Charter (Grounds 20 to 26);

(h) the finding that none of the evidence could amount to racial vilification under the RRT Act (Ground 27);

(i) the dismissal for want of prosecution in circumstances where the unchallenged evidence before the Tribunal was the reason the Applicant was unable to attend a resumed hearing was due to his mental health (Grounds 28 and 29); and

(j) the conduct of the proceedings was in a manner that gives rise to apprehend actual bias (Grounds 30 to 32).

THE LEGISLATION

The key provisions of the VCAT Act, the EO Act, the RRT Act, the Charter, and the Corrections Act are set out below.

VCAT Act

Section 76 of the VCAT Act provides for summary dismissal for want of prosecution as follows:

(1)At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding for want of prosecution.
(2)The Tribunal’s power to dismiss or strike out a proceeding under this section is exercisable by—
(a) the Tribunal as constituted for the proceeding; or
(b) a presidential member.

(3) An order under subsection (1) may be made on the application of a party or on the Tribunal's own initiative.

Clause 18 of sch 1 of the VCAT Act provides:

The Tribunal may make an order under section 76 summarily dismissing an application under the Equal Opportunity Act 2010 in respect of an alleged contravention of Part 4, 6 or 7 of that Act if the alleged contravention occurred more than 12 months before the application was made.

Clause 66K of sch 1 similarly provides:

The Tribunal may make an order under section 76 summarily dismissing an application under the Racial and Religious Tolerance Act 2001 in respect of an alleged contravention of Part 2 of that Act if the alleged contravention occurred more than 12 months before the application was made.

Sections 97 and 98 are of general importance to the Tribunal’s procedure. Section 97 states as follows:

The Tribunal must act fairly and according to the substantial merits of the case in all proceedings.

Section 98 provides:

(1) The Tribunal—
(a) is bound by the rules of natural justice;
(b)is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures;
(c) may inform itself on any matter as it sees fit;
(d)must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit.

…
(3) Subject to this Act, the regulations and the rules, the Tribunal may regulate its own procedure.
(4) Subsection (1)(a) does not apply to the extent that this Act or an enabling enactment authorises, whether expressly or by implication, a departure from the rules of natural justice.

Section 80 provides:

The Tribunal may give directions at any time in a proceeding and do whatever is necessary for the expeditious or fair hearing and determination of a proceeding.

Section 100(2) states:

The Tribunal may conduct all part of the proceeding entirely on the basis of documents, without the appearance of parties or their representatives or witnesses, unless a party objects to all or part of the proceeding being conducted in this manner.

Section 102 sets out the rules as to evidence in a Tribunal proceeding. It provides:

(1)       The Tribunal must allow a party a reasonable opportunity—
(a)       to call or give evidence; and
(b)       to examine, cross‑examine or re‑examine witnesses; and
(c)       to make submissions to the Tribunal.
(2)Despite subsection (1), the Tribunal may refuse to allow a party to call evidence on a matter if the Tribunal considers that there is already sufficient evidence of that matter before the Tribunal.

Section 108 enables a party to make an application for reconstitution of the Tribunal as follows:

(1) At any time before the conclusion of the hearing of a proceeding—
(a)a party may apply to the Tribunal for the reconstitution of the Tribunal for the purposes of the proceeding; or
(b)the President or a member of the Tribunal as presently constituted may give notice to the parties that the President or member seeks the reconstitution of the Tribunal for the purposes of the proceeding.

(2)If an application is made under subsection (1)(a) or notice is given under subsection (1)(b)—
(a)a presidential member, after allowing the parties to make submissions, may decide that the Tribunal should be reconstituted; and

(b) if so, the President must reconstitute the Tribunal.
(3)If the Tribunal is reconstituted for the purposes of a proceeding, the reconstituted Tribunal may have regard to any record of the proceeding in the Tribunal as previously constituted, including a record of any evidence taken in the proceeding.

Section 148 concerns appeals from the Tribunal. It relevantly provides:

(1)A party to a proceeding may appeal on a question of law from an order of the Tribunal in the proceeding—
…
(2A)The Trial Division of the Supreme Court may grant an application for leave to appeal under this section only if it is satisfied that the appeal has a real prospect of success.
…
(7)The Court of Appeal or the Trial Division, as the case requires, may make any of the following orders on an appeal—
(a)an order affirming, varying or setting aside the order of the Tribunal;

(b) an order that the Tribunal could have made in the proceeding;
(c)an order remitting the proceeding to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the court;

(d) any other order the court thinks appropriate.
(8)If the court makes an order under subsection (7)(c), it must give directions as to whether or not the Tribunal is to be constituted for the rehearing by the same members who made the original order.

Corrections Act

While the Applicant was a prisoner, he was in the legal custody of Corrections Victoria, DJCS under s 6A of the Correction Act. Under the Corrections Act and the Corrections Regulations 2019 (Vic) (‘Regulations’), the Respondent is responsible for the establishment, management and security of prisons and the welfare of prisoners.

The Corrections Act and Regulations confer various functions, duties and powers on officers of the Respondent and impose various requirements upon prisoners. Section 47 of the Corrections Act sets out rights afforded to prisoners.

Other statutes raised in this proceeding

The parties referred to several provisions of the EO Act, the RRT Act, and the Charter in the course of this proceeding.[65] As will become evident in my reasons, many of these provisions do not bear setting out in this judgment. However, as it pertains to a standalone question of law of some concern to the parties, s 44 of the EO Act bears extraction:
[65]These included:
· EO Act: ss 44, 7(1)(a), 8, 9, 6. 4, and 75;
· RRT Act: s 7(1)
· Charter: ss 38, 39, 7, 8, 10, 13, 14, 15, 16, 21, 22, and 25.

(1) A person must not discriminate against another person—
(a) by refusing to provide goods or services to the other person; or
(b)in the terms on which goods or services are provided to the other person; or
(c)by subjecting the other person to any other detriment in connection with the provision of goods or services to him or her.

(2)Subsection (1) applies whether or not the goods or services are provided for payment.

Whilst this provision and related question of law (Question 10) were central to the position of the Intervenor, its relevance in the context of an appeal under s 148 of the VCAT Act is misplaced, as I have found below at [171].

SUBMISSIONS
Applicant

The Applicant filed lengthy and varied submissions which I have considered. The lengthy questions of law and grounds of appeal are demonstrative of much of the Applicant’s submissions. Some of the key submissions are explored further in this section.

It was submitted that there are some acts or omissions and decisions of the Tribunal in respect of which the Tribunal may be regarded as acting administratively, particularly those acts and decisions which occurred outside the hearing, including the vacation of hearing dates and relisting, dealing or not dealing with the Applicant’s application for reconstitution, failing to respond to the Applicant’s medical certificates, and making enquiries or taking steps to assist him to attend the hearing or otherwise enable the hearing to be completed.

It was submitted that, in respect of these acts and decisions, the Tribunal was not only required to act compatibly with the rights in ss 8 and 24, it was also required to do so by reason of s 6(2)(b), and had obligations under s 38(1) of the Charter to give proper consideration to them. There are no written reasons to explain what was not taken into account by the Tribunal. It was submitted that it is open to the Court to conclude there was a failure to properly consider the rights in ss 8 and 24 of the Charter based upon the actions that were (or in most instances were) taken by the Tribunal.

It was submitted by the Applicant that this appeal raises important questions about how the Tribunal deals with self‑represented litigants who suffer from disability, particularly mental and cognitive impairments.

In particular, it was submitted that there are a number of grounds which directly or indirectly raise issues with respect to the obligations of the Tribunal in respect of self‑represented litigants pursuant to common law principles of procedural fairness and the right to a fair hearing in s 24 of the Charter. These included:

(a) the ‘significant’ restrictions imposed on the Applicant’s cross‑examination of witnesses that were not imposed upon the Respondent and the imposition of ‘onerous conditions’ such as the preparation of written submissions which were more difficult for a person such as the Applicant;

(b) the s 76 application being decided on the papers and without allowing the Applicant to make submissions on the merits; and

(c) the dismissal of the proceeding for want of prosecution in circumstances where the reason for the delay in completing the hearing was the Applicant’s incapacity to attend due to his mental health.

It was submitted that there are additional obligations under s 8(3) of the Charter where a self‑represented litigant has attributes protected by the EO Act that impact on the capacity to conduct legal proceedings. Further that under the VCAT Act the Tribunal has broad powers to adopt procedures in order to accommodate the needs of persons whose attributes impact on their ability to effectively participate in legal proceedings. This includes procedures adopted for the hearing,[66] the use of interpreters,[67] the assistance of support persons,[68] and that where a party is unrepresented the Tribunal may appoint a person to represent that party.[69]
[66]VCAT Act, s 98.
[67]Ibid, s 62.
[68]Ibid, s 63A.
[69]Ibid, s 62(6).

Ultimately, the Applicant sought that the Court set aside the VCAT Order and either:

(a) grant the specific relief which he had sought before the Tribunal, as outlined in [104] of his Further Particulars of Claim dated 10 December 2020; or

(b) order that the Trial Division of this Court hear and determine the discrimination case under the EO Act the RRT Act and the Charter; or

(c) remit the proceeding back to be heard by the Tribunal, differently constituted (by a Senior Member).

Respondent

The Respondent conceded Question 1 in respect of the s 108 application not having been decided by the Tribunal and argued that the proceeding could be remitted to the Tribunal on this basis alone. It was said that this omission is an error of law as:

(a) the Tribunal failed to exercise its jurisdiction in relation to the s 108 application; and

(b) the s 76 application should not have been heard while the s 108 application remained undetermined.

The other parties however resisted remittal to the Tribunal for various reasons that were either not fleshed out or not to the point at hand.

The Respondent submitted that it was not necessary to decide the additional 31 grounds of appeal if the appeal was granted on the first ground/question of law. In the alternative, the Respondent resisted these grounds as misplaced in the context of an appeal of a s 76 decision.

The Respondent emphasised that the Tribunal had before it an application under s 76 of the VCAT Act for summary dismissal for want of prosecution and, at the time that the proceeding was dismissed on 10 February 2023:

(a) all of the Applicant’s evidence had been heard by the Tribunal;

(b) the Applicant claimed to be ‘unfit to proceed’ with the balance of the VCAT hearing, in accordance with his medical certificate dated 10 December 2022; and

(c) the relevant events had occurred approximately six years earlier, the proceeding had been commenced three‑and‑a‑half years earlier and the hearing had commenced almost two years earlier;

and therefore no procedural unfairness (statutory or otherwise) or bias (actual or apprehended) occurred.

The Respondent further pointed to the following matters:

(a) although the Tribunal gave preliminary views about the Applicant’s claims, the Tribunal did not make a final decision with respect to his application;

(b) the Applicant’s complaints about procedural fairness not being provided at the hearing are not relevant to the s 76 application because that application was determined ‘on the papers’ and both parties submitted written submissions; and

(c) the Applicant does not identify an error of law with respect to the determination of the s 76 application itself.

The Respondent submitted that it did not accept the claim that the Applicant was unable to resume the hearing due to his mental health. It took the view that many of the issues were caused by the Applicant’s unwillingness to appear before the Tribunal.

It was submitted that no bias arose upon the Tribunal’s decision on the s 76 application, nor in respect of the Tribunal’s handling of the earlier hearings. The Respondent emphasised that bias and procedural fairness are context sensitive questions, and that when the Transcript is considered in its entirety, these grounds have no real prospect of success.

In respect of the discrimination issues, if they remained relevant, the Respondent submitted that, to the extent the alleged events occurred, the actions of the Respondent’s employees involve the performance of the statutory duties and obligations set out in the Corrections Act and Regulations. On this basis, an exception under s 75 of the EO Act applies.

Intervenor

The Commission intervened in this proceeding as of right pursuant to s 40(1) of the Charter and the orders made by the Court on 2 May 2024 to grant of leave to intervene pursuant to s 159 of the EO Act.

The Commission’s intervention was confined to making submissions in respect of the following issues:

(a) the proper construction of s 44 of the EO Act and its interaction with the Corrections Act and the Charter;

(b) whether before deciding that an act is incompatible with s 8(3) of the Charter the Tribunal must identify that discrimination under the EO Act has occurred;

(c) the proper construction of s 10(b) of the Charter and in particular whether it is open as a matter of fact for a failure to prevent or respond to assault and racist taunts to amount to ‘cruel, inhuman or degrading treatment’;

(d) the meaning of ‘arbitrary’ for the purpose of s 13(a) of the Charter; and

(e) the scope of the right to freedom of association under s 16(2) of the Charter.

The Commission did not seek to be heard on the application of the EO Act, the Charter or the factual matters underlying the appeal.

The issue in respect of s 44 of the EO Act was the main interest of the Commission. It supported the Applicant’s submissions which contended that, in accordance with s 32(1) of the Charter, the meaning of ‘services’ in s 44 of the EO Act should be given a broad and beneficial interpretation that is compatible with s 8 of the Charter. It was argued that this position is consistent with the effect of s 32(1) of the Charter and the jurisprudence of the Court.[70] To interpret s 44 in a way that is compatible with the right to equality in s 8 of the Charter means that it should be given the widest possible effect as a provision that prohibits discrimination and promotes equality.[71] The Commission supported a construction of ‘services’ that leaves room for the application of s 44 of the EO Act to those providing ‘services’ to persons in custody. A blanket denial of the class of persons from the scope of the EO Act by reason only that the ‘services’ are performed by Corrections Victoria is not a construction compatible with the right to equality. It is also a construction inconsistent with the object and purpose of the EO Act.[72]
[70]Owners Corporation OC1‑POS539033E v Black (2018) 56 VR 1, [68] (Richards J) (‘Black’).
[71]Ibid, [57].
[72]Interpretation of Legislation Act 1984 (Vic), s 35(a) which provides that a construction that would promote the purpose or object underlying the statute be preferred to a construction that would not promote that purpose or object. See object and purpose in EO Act, ss 3(a) and (b); also Black, [57]–‍[59] (Richards J).

Otherwise, the Commission supported some of the other submissions of the Applicant, such as submissions concerning the process in respect of s 8(3) of the Charter, and the possibility for the application of s 10(b) of the Charter in circumstances of assault and racial abuse. Whilst the Commission made no submissions in respect of the factual finding made by the Tribunal, it submitted there is authority to support the proposition that the conduct complained of is conduct of a kind capable of engaging the right in s 10(b).[73] It was submitted that racial taunts and abuse also clearly fall within the definition of ‘discrimination’ in ss 7(1)(a) and 8 of the EO Act as unfavourable treatment on the basis of race.[74]
[73]Bare v Independent Broad‑based Anti‑corruption Commission (2015) 48 VR 129, Kracke v Mental Health Review Board [2009] VCAT 646 and Certain Children v Minister for Families and Children & Ors (No 2) (2017) 52 VR 441 were relied upon to argue that in certain circumstances assault and racial slurs associated with physical abuse can amount to cruel, inhuman or degrading treatment or punishment.
[74]Laverdure v Jayco Caravan (Recreational Industries) Pty Ltd [2001] VCAT 1706, [7].

The Commission contended that the Tribunal erred in law in making various findings in respect of the Charter, including the findings that:

(a) there was no evidence which raised any concerns of the rights under s 13(1)(a) of the Charter were limited arbitrarily or unreasonably in any way; and

(b) the evidence did not identify the Applicant’s right to privacy under s 13(k) of the Charter was subject to the limits other than those permitted by s 7(2) of the Charter.

The Applicant’s submissions at [174] set out numerous instances of interferences with the Applicant’s privacy correspondence within the scope of s 13(a) which were repeated and relied upon by the Commission.[75]
[75]In respect of the definition of ‘arbitrary’, for the purposes of s 13(a) the Commission referred to the Court of Appeal decision of Thompson v Minogue (2021) 67 VR 302, [55], where the Court found that the balance of authorities favoured a ‘human rights’ approach to the definition of ‘arbitrary’ as opposed to the dictionary definition.

Other submissions were made in respect of the scope of s 16(2) of the Charter (right to freedom of association), including that the association does not need to be a formal one. It was submitted that the protections afforded by s 16 would be internally inconsistent if informal peaceful assembly was protected under s 16(1) but informal association with other persons was not protected under s 16(2).

However, as will be seen, many of these submissions fall away upon a consideration of the appeal.

ANALYSIS

As summarised above,[76] the Applicant has raised 14 questions of law and 32 grounds of appeal, which broadly fall into the categories of:
[76]At [67]–[68].

(a) whether there was a failure to exercise jurisdiction under s 108 of the VCAT Act (Question 1);

(b) a denial of procedural fairness in the manner in which the Tribunal afforded the Applicant an opportunity to be heard (Questions 2 to 5, 7 to 9, 11 and 12), including where:

(viii) he is a self‑represented litigant;

(ix)he had some inability to participate by reason of mental disability;

(x) the Tribunal has an obligation to provide a fair hearing pursuant to s 98 of the VCAT Act; and

(xi)there was an inconsistency with s 100 in relation to the right to cross‑examine; and

(c) an alleged misapplication of cl 18 of sch 1 of the VCAT Act (Question 6);

(d) an alleged misconstruction of s 44 of the EO Act — i.e. whether the Respondent provided ‘services’ to the Applicant (Question 10);

(e) an alleged misapplication of s 76 of the VCAT Act (Question 13); and

(f) actual or apprehended bias (Question 14).

I have grouped my analysis of the questions of law and related grounds of appeal in this manner.

A theme which runs through the questions and the grounds in relation to fairness is an allegation that the Applicant’s Charter rights have been adversely affected by the Tribunal’s processes and decision. In particular, s 8 (right to recognition and equality before the law) and s 24 (right to a fair hearing) were relied upon.

The submissions of the Applicant both in chief and by reply were extensive. I was also assisted by the submissions made on behalf of the Intervenor. However, given the view I have taken on the s 76 issue, the balance of the matters raised fall away to a large extent and are not determinative of the proceeding, the appeal being one in respect of orders for want of prosecution.

Realistically, the framework of this appeal is much more confined.

Framework of Appeal – Leave considerations

Stripped back, the issues before the Court in reviewing an order of the Tribunal on appeal are as follows:

(a) What is the jurisdiction of the Court on an appeal under s 148 of the VCAT Act?

(b) What was the order made?

(c) Did the Tribunal apply the appropriate test in making that order?

(d) Did the Tribunal make any other error of law in making that order?

This links to Question 13, which queries whether the Tribunal applied the correct test in making a determination under s 76 of the VCAT Act. As I have indicated, the s 76 issue is central, being the provision upon which the order subject of the appeal was made.

An appeal lies on a question of law only, from an order of the Tribunal in the proceeding. The Order made by the Tribunal here was that the proceeding be summarily dismissed pursuant to s 76 of the VCAT Act for want of prosecution. The appeal must not lose sight of this.

The Court may only grant leave if it is satisfied that the appeal has a real prospect of success. The term ‘a real prospect of success’ has been well established to mean that the Court may only grant leave if the appeal has a ‘real as opposed to a fanciful’ chance of success.[77]
[77]Kennedy v Shire of Campaspe [2015] VSCA 47, [12] (Whelan and Ferguson JJA).

The Court retains a discretion under ss 148(1)(b) and (2A) to refuse to grant leave to appeal even if an appeal has a real prospect of success.[78] This is because s 148(1) confers a discretion and an applicant must persuade the Court to exercise that discretion in its favour. Factors that may weigh against the exercise of discretion, even if the Court is satisfied that there is a real prospect of success, include whether the proposed appeal would be futile or of limited practical impact or where the claimed error of law made any difference to the VCAT order.[79] It is open to the Court in considering the question of leave to appeal to first address discretionary factors which may be relevant to the grant of leave, regardless of an assessment of the applicant’s prospect of success.[80] In an appropriate case, leave could be refused without consideration of whether the appeal has a real prospect of success.[81]
[78]Chopra v Department of Education and Training [2019] VSC 488 [23] (Richards J) (‘Chopra’).
[79]The ‘materiality’ consideration.
[80]Bashour v ANZ [2020] VSC 478, [35] (Moore J) (‘Bashour’).
[81]Ibid.

The overriding consideration in determining an application for leave to appeal under s 148 is the justice of the case as it appears to the Court. This means justice to all parties, not only the applicant for leave.[82]
[82]Chopra, [24].

By reason of s 117(6) of the VCAT Act, the reasons for an order form part of that order. However, it is the order itself that must be affected by legal error and it is not enough that there is an error in the reasons if that error does not affect the order. There is no general vitiation as to the reasons and opinions provided for by s 148 of the VCAT Act.[83]
[83]Victoria Police v Burton (1999) 15 VAR 443 (Hedigan J).

Invocation of s 24 of the Charter does not alter the test for leave.[84]
[84]Bashour, [60].

Where there are allegations of a breach of procedural fairness, it has been held that this raises issues of public interest, in addition to those which arise between the parties, and this is a relevant consideration in the leave application.[85]
[85]Norville Nominees Pty Ltd v Strathbogie Shire Council [2008] VSC 62, [23] (Osborn J).

The importance of the question of law in respect of which leave is sought may be a consideration, however, where there are not real prospects of success, the Court’s discretion would not be enlivened.[86] Further, where a question of law has no real prospect of success, the public importance of the question will be diminished.
[86]The public importance of the question was a consideration established in Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331, [11]. However, this decision predates the introduction of s 148(2A). See also Chopra, [23(a)].

The question of delay, both in terms of time taken when the underlying conduct took place and the time it would take to resolve the matter if it was remitted to the Tribunal, are said to be relevant as to whether or not it would be just to grant leave to appeal.[87]
[87]Legal Services Commissioner v Turner [2012] VSC 394, [94]–[110].

With this context in mind, I will now deal with each of the 14 questions of law raised by the notice of appeal. As indicated, some of these questions attract detailed analysis and some essentially fall away. Consequently, I will deal with many of the issues raised in summary form, save that more detail shall be provided in respect of the procedural fairness and bias complaints as they are relevant to the disposition of the s 108 (failure to exercise jurisdiction) issue.

Each of the 14 questions of law are stated in full above at [67].

Question 1 – Non‑consideration of the s 108 application

It is clear from the Tribunal’s Reasons that there was no formal consideration of the s 108 application. The s 108 application was based on allegation of bias and procedural fairness.

The Respondent has conceded this question of law and argues that the proceeding could be remitted to the Tribunal on this basis alone. This is opposed by the Applicant and the Intervenor.

The purpose of s 108 is to deal with procedural fairness and bias claims prior to the determination of the proceeding. This is clear from the limitation in s 108 that an application can be made any time before the determination of the proceeding. The s 108 application in this case was made prior to the determination of the proceeding.

In the context of the statutory framework — and given my below findings as to bias and procedural fairness — even if there is a demonstrated error of law, it is not obligatory for the Court to grant leave to appeal[88] or (where leave is granted) to allow the appeal and remit the proceeding back to the Tribunal. The consequential orders to be made are in the broad discretion of the Court pursuant to s 148(7) of the VCAT.[89] In this regard, considerations of utility, efficient use of resources and the interests of justice must be considered.
[88]Noting s 148(2A) is discretionary, using the word ‘may’.
[89]Extracted above at [79]. I note that the decision can be affirmed in accordance with s 148(7)(a), and that there is a broad discretion in s 148(7)(d) to make ‘any other order the court thinks appropriate’.

As I have set out below, I am not satisfied that the grounds and questions of law which rely on bias and procedural fairness have any substance. In such circumstances, there is little utility in returning the proceeding to be dealt with again by the Tribunal in the face of this conclusion.

Further, it would be a manifest waste of resources to do so. Given the Tribunal’s observations as to the significant evidentiary and procedural hurdles facing the Applicant, the further passage of time only elevates the concerns expressed by the Tribunal as to the consequences of delay.

Thus, even though there has been a procedural failure, in my view it is not of such a character that there is any utility in remitting the proceeding on this ground. What I have said above at [117]–[118] is pertinent in this regard. The exercise in considering leave to appeal requires a nuanced balance of considerations and a neutral assessment of what is just in all of the circumstances.

One of the relevant considerations open to the Court in granting leave is delay. Given the delay between the time of the alleged complaints (being between one and five years before the claim was made in July 2019) and the current time (being six years later than that), and there being no evidence that the Applicant is in any position to participate sensibly in further proceedings at the Tribunal, remittal on a question of bias or breach of procedural fairness is totally unwarranted. It would not be a proper exercise of discretion under s 148, nor in the interests of justice overall, to return the matter for determination on the s 108 application. I am reinforced in this view by my findings on the substantive issues raised in this appeal in respect of bias and procedural fairness.

Question 1/Ground 1 does technically engage s 148(2A) of the VCAT Act such as to require a granting of leave to appeal. However, unless any other more impactful grounds are made out, I am of the view that I should exercise the discretion in s 148(7) to dismiss the appeal.

Questions 2 to 5, 7 to 9, 11 and 12 – Procedural fairness and related grounds

These questions all proceed on a false premise that there was a determination of the merits of the Applicant’s claims made by the Tribunal. This is simply incorrect — the decision made, and the decision now under appeal, was a determination of a s 76 application for want of prosecution.

The principles which apply to the exercise of discretion to dismiss for want of prosecution are set out in the summary of the Tribunal’s Reasons at [55] and [63] above, and are further dealt with below in respect of Question 13 at [173]–[183].

Whilst it is not a requirement to consider the merits, it is also not wrong to do so. In the task before the Tribunal of determining a s 76 application, the Tribunal may formulate an informed but preliminary view of the claim. The Tribunal is to be guided by the applicable statutory provisions, including cl 18 of sch 1 of the VCAT Act.

Question 2 – Consideration of the merits?

There is no mandatory requirement (in a Peko‑Wallsend[90] sense) to consider the merits of the underlying claim in a s 76 application at VCAT.[91] That is not to say that the merits are prohibited from being considered.
[90][1986] HCA 40.
[91]Lanigan v Circus Oz & Ors [2022] VSC 35, [113], [118] (McDonald J).

It is clear on a fair reading of the Tribunal’s Reasons that the Tribunal expressed preliminary views as to the legal and evidentiary issues facing the Applicant’s case. Reading the decision as a whole, it is clear that the determination was made on proper consideration of the relevant matters which support a s 76 determination. There is no lack of procedural fairness in form or substance. There is no obligation for the Tribunal to consider the merits of the underlying claim in making a s 76 determination. Insofar as there was an expression of a view as to the merits, it was a preliminary one and, if there was error, it is not an error which affects or is material to the s 76 application.

Rather, the Tribunal in its Reasons has indicated the evidentiary and legal issues which faced the Applicant given the stage in which the proceeding had reached. In particular, his re‑litigation of matters which had already been resolved indicates a lack of capacity of the Applicant to prosecute his claim notwithstanding the assistance of the Tribunal.

The Applicant, in relation to Question 2, specifically took issue with the s 76 application having been decided on the papers. However, this is a method of hearing which is open to the Tribunal to adopt and was, in all the circumstances, the appropriate course for the Tribunal to take. The Tribunal gave the parties an opportunity to be heard by directing their submissions on the issue to be made in writing, which opportunity they both undertook. The Tribunal had both parties’ submissions before it. There is no procedural or legal error in this course.

Question 2 and the related grounds (Grounds 2 and 3) are not made out.

Questions 3 and 4 – Opportunities to make submissions and cross‑examine

Questions 3 and 4 are related and can be considered in unison.

When the whole of the trajectory of the proceeding is considered in the context of the Tribunal’s powers and duties under the VCAT Act, there is no substance to these questions.

First, as I have said in relation to Question 2, the alleged consideration of the merits was expressed to be preliminary views as to the obstacles facing the Applicant and made in the context of an application under s 76. As a consequence, as with a number of other grounds, these complaints are based on a misconception that the Tribunal made findings in respect of the merits of the Applicant’s complaint.

Second, the Tribunal has an obligation to accord procedural fairness but that concept is a relative one. It is also one which is to be assessed in the context of the specific statutory provisions which are relevant to the Tribunal’s functions and procedures.

The provisions of the VCAT Act grant the Tribunal a large degree of procedural flexibility. The Tribunal must ‘act fairly and according to the substantial merits of the case’.[92] It may regulate its own procedures.[93] The Tribunal may make such directions as it deems appropriate in the circumstances.[94] It must conduct each proceeding with as little formality and technicality and determine each proceeding with as much speed as the requirements of the VCAT Act, the enabling enactment and proper consideration of the matters before it permit.[95]
[92]VCAT Act, s 97. This does not impose an obligation to decide on the merits in applications where that requirement does not already exist (such as a s 76 application). Rather, it requires the Tribunal to act consistently with the apparent merits.
[93]Ibid, s 98(3).
[94]Ibid, s 80.
[95]Ibid, s 98(1)(d).

Importantly, s 102 of the VCAT Act provides that the Tribunal must allow a party a reasonable opportunity to call or give evidence and to examine, cross‑examine or re‑examine witnesses. It is to be noted that this is a ‘reasonable opportunity’ and, as such, is not one which can be dictated by any party nor that is open‑ended or absolute.[96] A reasonable opportunity to cross‑examine witnesses is not an endless opportunity to do so.[97] It is a matter for the Tribunal to determine what a reasonable opportunity is in the circumstances, particularly in light of s 98(1)(d) which directs the Tribunal to determine each proceeding with relative expedition.
[96]Ambikapathy v Victorian Legal Aid [1999] VCAT 1361, [15]; City of Brighton v Selpam Pty Ltd [1987] VR 54.
[97]He v Aloe & Co Pty Ltd(No 3) [2010] VSCA 158, [41], [50].

Also of particular note is the discretion available to the Tribunal in s 102(2) to refuse to allow a party to call particular evidence, if the Tribunal considers there is already sufficient evidence of that matter before the Tribunal.

Consequently, consideration of the question of whether there was a reasonable opportunity to cross‑examine must be viewed in light of the broader circumstances and powers granted to the Tribunal. Whilst s 102(1) sets the general expectation with respect to cross‑examination, it is subject to both s 102(2) and the general procedure of s 98. Therefore, it is within the Tribunal’s discretion to limit the submissions of the parties and the evidence, including the extent of cross‑examination, or limit the witnesses who otherwise are sought to be called or cross‑examined.

This is particularly so where a self‑represented litigant is involved in a proceeding, as is very commonly the case in proceedings in the Tribunal. A self‑represented litigant commonly requires some direction and assistance in order to present their case in a manner which is both relevant and of assistance to the decision maker.

In the circumstances of this Applicant, the transcript and audio recording demonstrate the repetition and resort to irrelevancies by the Applicant and the Tribunal’s patient attempts to direct him towards submissions and cross‑examination relevant to the facts and issues in question.

Whilst at times the Tribunal was direct and forceful, such direction and emphasis was clearly necessary given the amount of time and the resort to repetition and irrelevancies which peppered the Applicant’s case.

In Doughty‑Cowell v Kyriazis (‘Kyriazis’),[98] Mr Kyriazis was self‑represented on his appeal to the County Court against his convictions on two minor traffic offences, before Judge Chettle, and subsequently complained of unfairness and bias. The Supreme Court at first instance granted Mr Kyriazis’ application for judicial review, concluding that the County Court had not accorded him a fair hearing and was guilty of ostensible bias. The Court of Appeal reversed this decision, finding that whilst Mr Kyriazis was ‘articulate’, he had in the County Court displayed a ‘remarkable … level of hostility, anger and aggression’ directed towards the Court.[99] Judge Chettle had been ‘calm and patient’ (if at times reasonably frustrated) and ‘there was nothing more his Honour could have done to ensure a fair hearing’, having provided Mr Kyriazis with ‘all of the assistance he could reasonably expect’.[100]
[98][2018] VSCA 216.
[99]Ibid, [3], [4], [78].
[100]Ibid, [4], [8], [74].

The opening paragraphs of Kyriazis succinctly summarise the principle to be drawn from the decision:[101]

Ensuring a fair hearing for an unrepresented litigant can present formidable difficulties for a court. Their needs, and their attitudes towards the court, vary across a wide spectrum. At one end of the spectrum, the litigant may be inarticulate, or anxious, or distressed, and in need of considerable assistance in order simply to understand the process in which he/she is involved. At the other end, there are litigants who are variously articulate, strong‑minded, stubborn, dismissive of legal advice and, very often, unwilling to accept judicial authority.
The obligation of a court to ensure a fair hearing is undoubted. The content of that obligation varies, however, with the circumstances of the case and ― in this context ― according to the particular capabilities and attitudes of the self‑represented litigant.

[101]Ibid, [1]–[2].

Whilst I do not suggest in any way that the Applicant at VCAT displayed the same level of inappropriate behaviour or aggression as Mr Kyriazis did in the County Court, I consider this case on fours with Kyriazis in the sense that Judge Jenkins was patient with the Applicant and afforded him appropriate procedural fairness in all of the circumstances.

I have reviewed the audio recording of the hearing at the time stamps indicated by the Applicant and additional phases.

It is clear from the manner of the Tribunal that the Tribunal member was empathetic, patient and attempted to assist the Applicant in the presentation of his case so as to make it relevant and directed to the principles in the questions of law and the evidence, to support the elements of the courses of action he complained of. It is also obvious that, after many days of hearing and assistance by the Tribunal, by the completion of the Applicant’s case, Judge Jenkins had more than sufficient evidence upon which to form her preliminary view, as she expresses in the Tribunal’s Reasons.

The principle in Kyriazis is that a self‑represented litigant will be provided with leniency and assistance commensurate with their ‘capability and attitudes’. In such circumstances, the leniency, assistance and largesse of the Tribunal cannot be infinite. The Tribunal must make an educated assessment of the ‘substantial merits’ of a case and ensure that the management of the proceeding complies with the overarching expectations in the Tribunal setting, as embodied in ss 97 and 98 of the VCAT Act.

In my assessment, the Tribunal member provided significant assistance, empathetic encouragement and direction, and fulfilled her obligation in all of the circumstances to provide for a fair hearing. In particular, the manner in which the Tribunal managed the last day of the hearing is not inconsistent with the Tribunal’s obligation to be efficient and deal with the real substance of the matter.

The Tribunal was entitled to limit the Applicant’s repetition and irrelevant submissions and cross‑examination. It is clear that the Tribunal found no utility in the Applicant’s repetition and inability to remain relevant to the considerations which supported his claim. In particular, there is no error by way of breach of the rules of natural justice or procedural fairness in the manner in which the Tribunal directed the Applicant about the relevant matters and the amount of time being taken by the Applicant on irrelevant matters, thus requiring her direct intervention. The Tribunal’s conduct of the matter was, as in Kyriazis, consistent with the Applicant’s capability and attitudes. This includes matters related to his mental health. Judge Jenkins was appropriately compassionate, and ultimately balanced such considerations with the procedural requirements of the VCAT Act. In this regard, I do not accept the Applicant’s submission, summarised above at [89], that any of the particular procedures in the VCAT Act in respect of persons requiring specific assistance were not met.

Questions 3 and 4 and the associated grounds of appeal (Grounds 4 to 7) are not made out.

Question 5 – Opportunity to make submissions on cl 18 of sch 1

In respect of Question 5, I echo the findings I have just made in respect of Questions 3 and 4 and procedural fairness, which was afforded. There is a brief additional matter to emphasise in relation to Question 5.

The Applicant was aware of the category of application brought against him, being a s 76 application for want of prosecution, and was given a fair opportunity to prepare his case in that respect. The Applicant was aware that the Respondent’s s 76 application was in part premised upon delay, and had access to the Respondent’s submissions in support of the application in this regard. The submissions made by the Applicant on the s 76 application in response to the delay issue, despite cl 18 of sch 1 not being directly named by the Respondent, can be considered to be equally responsive to cl 18. The issues are one and the same. All that cl 18 does is empower the Tribunal to (in its discretion, noting the word ‘may’) draw a statutory line as to when the delay is considered unreasonable.[102]
[102]Kramersh v IPD Education Ltd [2014] VCAT 1439, [50]; Stewart v City Of Yarra [2016] VCAT 1537, [18]–‍[19].

Question 5 and the related grounds (Grounds 8 and 9) are not made out.

Question 7, 8, 9, 11 and 12 – Charter, EO Act and RRT Act grounds

These questions and associated grounds are misconceived, being falsely premised on a view that the Tribunal determined the merits. As with Questions 2 to 5, it is important that the observations by the Tribunal in respect of the evidentiary and legal hurdles facing the Applicant were made on the basis of expressing a preliminary view. As previously set out, the Tribunal was not required to make a finding in respect of the merits in determining this s 76 application. Therefore, I am equally not required to consider any of the substantive issues in respect of the Charter, the EO Act or the RRT Act.

Question 7, 8, 9, 11 and 12 and the related grounds (Grounds 12 to 15 and 20 to 27) have no substance and are not made out.

Question 6 – The ‘test’ raised by cl 18?

Whilst Question 6 raises a discrete issue in respect of cl 18 of sch 1 of the VCAT Act (as compared with Question 5), there has been no misconstruction or misapplication of this provision. Clause 18 again emphasises the discretionary nature of the decision before the Tribunal in this case. The clause ‘may’ be invoked.

Again, all that cl 18 does is empower the Tribunal to choose to draw a line as to when the delay in an EO Act proceeding is considered unreasonable to prevent injustice.[103] There is no ‘test’ to apply other than a strict consideration of whether the application was made more than 12 months after the alleged contravention. The only other consideration is whether to exercise the discretion at all, which will turn on the facts of the case.
[103]Ibid.

Question 6 and the grounds related to it (Grounds 10 and 11) are not made out.

Question 10 – Provision of ‘services’ under s 44 of the EO Act

I note that whilst there is a serious question of ongoing jurisprudential controversy in respect of whether the Respondent is subject to the EO Act — on the operation of s 44 in the context of the provision of ‘services’ — I do not consider that this is a good choice of vehicle to ventilate that argument. The issue is not germane to the Order made by the Tribunal. As such, it is not necessary or appropriate for the Court to make a determination on this issue. Any utility in this Court’s view of the matter will be significantly diluted by the factual matrix within which this appeal lies, rendering it obiter at best. Whilst the Tribunal in its Reasons expressed some preliminary views on this issue, there is no need for me to do so.

Question 10 and the grounds pertaining to this issue (Grounds 16 to 19) are not made out.

Question 13 – The test and alleged error in respect of the s 76 application

As indicated above at [113]–[114], the question of whether the Tribunal applied the correct legal test in respect of s 76 of the VCAT Act is a question capable of exposing the VCAT Orders to an appeal under s 148. Any other error of law exposed in the Tribunal’s decision in this respect would be equally capable.

VCAT does not have a general or inherent power to dispose of a proceeding in a manner akin to strike out or summary dismissal without conducting a hearing of the merits.[104] The power to summarily dismiss for want of prosecution resides in s 76 of the VCAT Act.
[104]Martin v Fasham Johnson Pty Ltd [2008] VSC 289, [27] (Kyrou J).

Additionally, cl 18 of sch 1 sets a time limit that can be invoked where reasonable to dismiss an EO Act claim for want of prosecution. As I have indicated, cl 18 does not impose a mandatory limit but provides a discretion to prevent injustice due to delay.[105]
[105]Kramersh v IPD Education Ltd [2014] VCAT 1439, [50]; Stewart v City Of Yarra [2016] VCAT 1537, [18]–‍[19].

Clause 66K of sch 1 provides a similar discretion in relation to the dismissal of applications under the RRT Act, and is of equal utility in dispensing justice.

Section 76 does not identify any specific considerations required to be taken into account. However, the interpretation and application of the provision thus far by the Tribunal has been to take into account similar considerations as to the courts in determining whether to dismiss the proceeding for want of prosecution.

The overriding consideration is the interests of justice in the Court’s ability to control its processes to ensure those interests are not compromised. Though not a fixed or immutable list, from the authorities the following matters have been established as being relevant considerations:[106]
[106]ACN 115 918 959 Pty Ltd v Moulieris [2022] VSC 555, [34]–[38] (Kaye JA), citing Bishopsgate Insurance Australia Limited v Deloitte Haskins & Sells [1993] 3 VR 86; Gabriel v Council Of Box Hill Institute of TAFE [2002] VCAT 302.

(a) whether there has been an inordinate and inexcusable delay by a party in commencing or taking a step in the proceeding;

(b) the length of the delay;

(c) the explanation for the delay;

(d) whether any default was intentional or contumelious;

(e) whether the delay means there will be a substantial risk that the fair trial will not be possible;

(f) any prejudice to the Respondent that is caused by the delay including prejudice if the action is allowed to proceed notwithstanding the delay;

(g) any hardship to the Applicant if the matter were dismissed for want of prosecution;

(h) the conduct of the Respondent; and

(i) case management considerations and questions of proper use of the Tribunal resources.

Section 76 does not require the Court to determine the merits of the underlying claim in considering an application under that provision.[107] As I have said above in relation to Question 2, in the context of this application, that the Tribunal expressed any views at all (expressed to be preliminary or otherwise) as to the underlying merits of the proceeding will not amount to an error of law. The Tribunal’s Reasons fundamentally rely on the issue of delay and the ability to ensure a fair hearing given that delay. Observations in relation to the law or the merits of the Applicant’s case in respect of the law fall away. In this sense, the merits‑related issues raised by the Applicant are equally not supportive of Question 13 as with the procedural fairness grounds.
[107]Lanigan v Circus Oz [2022] VSC 35, [113], [118] (McDonald J).

That is not to say that the merits of the underlying case will never be open to be part of the overriding considerations in a s 76 application. Rather, one can envisage in the exercise of discretion to dismiss for want of prosecution a submission that the merits of a particular case were so meritorious it would be an injustice to dismiss the proceeding. However, in the context of the accepted approach to the applicable exercise of discretion, the key considerations will always be the delay, the reasons for delay and the consequences of the delay.

The existence of the 12‑month discretion in cls 18 and 66K of sch 1, in respect of the EO Act and the RRT Act, demonstrates the centrality of issues of delay and timing to s 76 applications. In my view, this suggests a legislative intention that matters brought pursuant to these enabling provisions ought to be brought promptly. This also suggests that the prosecution of the proceeding ought be undertaken with some promptness. The effect of the time lag between the alleged incidents complained of — being between three and seven years at the time it was before the Tribunal in 2021 — alone provides grounds for serious concern that a fair hearing to all parties could be conducted. This was a relevant and valid concern for the Tribunal.

The Tribunal identified the issue of delay, the reasons for delay and the impact on the ability to have a fair hearing given the time which had elapsed and the uncertainty surrounding the Applicant’s ability to continue the hearing as considerations it took into account and gave weight to.

There is no error of law identified in the Tribunal’s consideration of the application pursuant to s 76. Question 13 and the associated grounds (Grounds 28 and 29) are not made out. Given that, as I have stated, Question 13 is the most on point question of law posed in this s 148 appeal, this finding is sufficient to dispose of the appeal. However, for completeness, I will consider the final issue, bias.

Question 14 – Bias

The test for apprehended bias is well established, being whether ‘a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide’.[108]
[108]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

I have reviewed the extracts from the audio specifically referred to by the Applicant and more generally. I echo my findings above at [158]–[161] regarding the fairness and empathy displayed by the Tribunal as demonstrated by the Transcript.

The matters complained of, in my view, objectively assessed, do not demonstrate to the requisite standard a finding of apprehended bias nor of actual bias. In particular, the manner of the Tribunal in conducting the case was firm and directional. It does not demonstrate bias.

In respect of the Tribunal’s decision under review, being the order to dismiss for want of prosecution pursuant to s 76 of the VCAT Act, I am satisfied that the Applicant had a reasonable opportunity to be heard in the application.

Question 14 and the related grounds (Grounds 30 to 32) are not made out.

CONCLUSION

In light of the above findings, I will grant leave to appeal on Ground 1 in accordance with Question 1. However, for the reasons set out above, I will not set aside the Tribunal’s Order. I can see no utility in requiring the Tribunal to consider an application made under s 108 based on procedural fairness grounds where those very same matters formed the basis of many of the grounds argued unsuccessfully in this appeal.

I will affirm the order of the Tribunal to dismiss the proceeding for want of prosecution pursuant to s 76 of the VCAT Act.

I will make orders accordingly.

The parties will be given an opportunity to make submissions in writing in respect of costs.

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[2025] VSC 548

4 September 2025