Taylor v Attorney-General for Victoria
[2023] VSC 358
•27 June 2023
| IN THE SUPREME COURT OF VICTORIA | Not restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2022 01254
BETWEEN:
| JULIAN TAYLOR | Plaintiff |
| v | |
| THE HON. JACLYN SYMES, ATTORNEY-GENERAL FOR VICTORIA | Defendant |
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JUDGE: | Irving AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 June 2023 |
DATE OF JUDGMENT: | 27 June 2023 |
CASE MAY BE CITED AS: | Taylor v Attorney-General for Victoria |
MEDIUM NEUTRAL CITATION: | [2023] VSC 358 |
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JUDICIAL REVIEW —Decision of Attorney-General for Victoria — Petition of Mercy — Judicial review application nine months out of time — Whether time should be extended — Request for adjournment — Adjournment request refused — Application for extension of time refused — Proceeding dismissed.
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APPEARANCES: | Counsel | Solicitors |
| No appearance for the Plaintiff | ||
| For the Defendant | Mr L Brown Ms M Narayan | Victorian Government Solicitor |
HIS HONOUR:
Introduction
Mr Taylor has filed an originating motion for judicial review seeking an order quashing the decision of the Attorney-General for Victoria (Attorney-General) refusing Mr Taylor’s petition of mercy. Mr Taylor’s originating motion alternatively seeks an order that the Attorney-General provide him with detailed reasons for refusing his petition.
An application for judicial review under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Rules) must be commenced within 60 days after the date when grounds for the grant of relief or remedy claimed first arose. The Rules provide that the Court shall not extend the time for commencing a judicial review proceeding except in special circumstances.
The Attorney-General refused Mr Taylor’s petition on 30 April 2021. Mr Taylor filed his originating motion on 6 April 2022, more than nine months after the expiry of the 60 day time limit.
In the days immediately preceding the hearing, Mr Taylor emailed the Court requesting that the hearing be adjourned. The Attorney-General's solicitor did not agree to adjourn the hearing and so the Court informed the parties that Mr Taylor’s request for an adjournment would be determined at the commencement of the hearing.
Mr Taylor did not attend the hearing. At the commencement of the hearing I considered Mr Taylor’s adjournment request and refused to grant the adjournment. I delivered reasons orally on the day of the hearing, which I have set out below.
This judgment addresses whether the Court should extend the time for Mr Taylor to commence his application for judicial review.
For the reasons given below, I have decided to refuse Mr Taylor’s application for an extension of time.
Adjournment application
On 16 June 2023 at 8:57pm, Mr Taylor emailed the Court and the defendant requesting an adjournment for an unspecified period of time. Mr Taylor’s request was in the following terms:
As this hearing is one day before my daughter’s 18th birthday I will not be emotionally able to attend. I find that, having wrongfully been denied any contact with my daughter for nearly eight years, and that the Attorney-General knows the unlawfulness of the Victorian Institute of Teaching decision yet seeks to hide behind bureaucracy and self-serving legislation so as not to admit the error and instead sadistly (sic) continues this emotional torture means I will not be in a (sic) emotional place where I will be able to conduct any sort of meaningful dialogue.
The Attorney-General opposed Mr Taylor’s application for an adjournment. The basis of the Attorney-General’s opposition was the lateness of the application given that Mr Taylor had known the date of the hearing for some time and more particularly the lack of any supporting evidence that Mr Taylor was incapable of participating.
Mr Taylor did not appear at the hearing and as a result the Court did not have the benefit of any oral submissions from Mr Taylor on this issue.
I refused Mr Taylor’s application for an adjournment for the following reasons:
(a) Mr Taylor’s adjournment request was made in his email of 16 June 2023;
(b) Mr Taylor’s application was made two days before the hearing in circumstances where Mr Taylor had been aware of the hearing date since 17 March 2023;
(c) Mr Taylor provided no supporting evidence, for example from a medical professional, of his incapacity to participate in court proceedings;
(d) Mr Taylor’s email suggested that he, like many litigants, finds the litigation process stressful. Noting that Mr Taylor did not specify the period of the adjournment he sought, there was nothing in Mr Taylor’s email to suggest the stress would be any less at any time in the future;
(e) the Attorney-General opposed the application and was prepared to participate in the hearing to determine whether an extension of time should be granted;
(f) the Court in the exercise of any of its powers must seek to give effect to the overarching purpose of the Civil Procedure Act 2010 (Vic) and the Rules, being to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute; and
(g) in all the circumstances, the evidence before the Court was insufficient to justify an adjournment and to do so would have been inconsistent with the Court’s obligations under the Civil Procedure Act 2010 (Vic).
Background
Mr Taylor was a registered teacher in Victoria. In June 2015 the Victorian Institute of Teaching (VIT) received a notification of concerns about Mr Taylor. VIT conducted an investigation to determine if Mr Taylor had obtained his registration by fraud or misrepresentation. As a result of that investigation, VIT referred the matter to a VIT hearing panel (Panel) for a formal hearing under the Education and Training Reform Act 2006 (Vic) (ETR Act).
Mr Taylor was notified that the hearing would take place on 12 August 2015. On 8 August 2015 Mr Taylor requested a six-week adjournment of the hearing which was refused. The hearing proceeded on 12 August 2015. Mr Taylor did not attend.
At the hearing, the Panel decided to defer making a decision for seven days to provide Mr Taylor an opportunity to respond to VIT’s written submissions. Those written submissions were sent to Mr Taylor on 13 August 2015. Mr Taylor did not provide any written submissions in response but sought more time. The Panel considered Mr Taylor’s request for further time and decided not to grant it. The Panel considered that Mr Taylor had not provided a sufficient basis to justify a grant of further time. Accordingly, the Panel proceeded to determine the matter.
The Panel delivered its decision and reasons on 31 August 2015. The Panel found that Mr Taylor had obtained his registration by misrepresentation and decided to cancel Mr Taylor’s registration.
After the Panel had made its decision, the police commenced an investigation. Mr Taylor was arrested on 25 November 2015. Following a trial in the County Court on 14 August 2018, Mr Taylor was convicted on four charges of using a false document, one charge of perjury, seven charges of obtaining a financial advantage by deception and one charge of making, using or supplying identification information. Mr Taylor was sentenced to two years and 11 months imprisonment, with a non-parole period of two years and two months.
While in prison Mr Taylor’s visa was cancelled. After Mr Taylor completed his sentence, he was placed in immigration detention and was deported.
Mr Taylor applied to the Court of Appeal for leave to appeal his conviction and sentence. On 5 July 2019, the Court of Appeal dismissed Mr Taylor’s application.
On 20 November 2019, Mr Taylor submitted a petition for mercy to the Attorney-General. Mr Taylor provided material in support of that petition between November 2019 and February 2021.
On 24 September 2019, Mr Taylor applied to the Victorian Civil and Administrative Tribunal (VCAT) for review of the Panel’s decision on 31 August 2015 to cancel Mr Taylor’s registration as a teacher. As Mr Taylor’s application was out of time, VCAT first considered whether to grant Mr Taylor an extension of time to bring his application. On 3 December 2020 VCAT determined not to grant Mr Taylor an extension of time.
On 14 July 2020, Mr Taylor filed an originating motion in this Court for judicial review under Order 56 of the Rules, seeking orders to compel the Attorney-General to make a decision on his petition. That proceeding was discontinued by consent on 29 September 2020.
On 14 July 2020, Mr Taylor also commenced a judicial review proceeding seeking orders to set aside and declare void the Panel hearing of 12 August 2015 and its decision and subsequent cancellation of his registration as a teacher. That application was heard by Ginnane J on 28 September 2021 along with an application Mr Taylor had brought for leave to appeal VCAT’s decision not to grant him an extension of time. On 14 April 2022, Ginnane J dismissed both of Mr Taylor’s applications. Mr Taylor applied for leave to appeal Ginnane J’s decisions in the Court of Appeal. In a judgment dated 18 May 2023 Kaye JA, after considering Mr Taylor’s multiple proposed grounds of appeal, determined that Mr Taylor’s applications for leave to appeal Ginnane J’s decision were totally without merit and must therefore be refused.[1]
[1]Taylor v Victorian Institute of Teaching [2023] VSCA 119 (Taylor).
On 2 November 2020, Mr Taylor commenced another judicial review proceeding seeking orders to compel the Attorney-General to make a decision in relation to Mr Taylor’s petition. On 30 April 2021, the Attorney-General decided not to exercise her power under s 327 of the Criminal Procedure Act 2009 (Vic) (CPA) in respect of Mr Taylor’s petition. The Attorney-General’s decision was communicated to Mr Taylor in writing on the same day. That correspondence also informed Mr Taylor that the Attorney-General had provided Mr Taylor’s petition to the Premier so the Governor could consider whether to exercise the prerogative of mercy in respect of the petition.
The Attorney-General provided written reasons for her decision to Mr Taylor on 16 July 2021. Those reasons set out the material the Attorney-General had considered in reaching her decision, including more than 95 pieces of correspondence received from Mr Taylor between 23 October 2019 and 13 February 2021, the County Court sentencing remarks and the Court of Appeal’s decision in relation to Mr Taylor’s appeal. The Attorney-General’s reasons also set out the grounds Mr Taylor relied upon as the basis of his petition and which the Attorney-General considered.
The Attorney-General’s written reasons stated that the Attorney-General, after considering Mr Taylor’s grounds and supporting material, had concluded that Mr Taylor’s petition did not raise a reasonable possibility that the Court of Appeal would allow an appeal if the matter was referred to it, and that the Attorney-General would not be assisted by an opinion from the Trial Division of this Court on any point raised by Mr Taylor’s petition. The Attorney-General pointed out that the Court of Appeal had previously considered the central arguments raised by Mr Taylor’s petition, and that the Attorney-General did not consider that the information Mr Taylor had provided in support of his petition raised any reason to doubt the correctness of the Court of Appeal’s decision on his appeal. The Attorney-General observed that while certain arguments raised by Mr Taylor had not been considered by the Court of Appeal, the Attorney-General considered them misconceived or unsupported by credible evidence.
On 8 October 2021, the Attorney-General filed an application seeking summary dismissal of Mr Taylor’s judicial review proceeding commenced on 2 November 2020. The Attorney-General’s application was heard and granted on 27 January 2022. In granting summary dismissal the Court found that Mr Taylor could not establish a claim for mandamus to compel the Attorney-General to make a decision in circumstances where a decision had already been made. The Court also found it lacked power to compel the Attorney-General to exercise her power under s 327 of the CPA in a particular way. Mr Taylor appeared and made oral submissions at the hearing of the Attorney-General’s application for summary dismissal. In its reasons granting that application, the Court noted that as at the date of that decision, Mr Taylor had not sought to challenge the lawfulness of the Attorney-General’s decision on his petition.
Relevant legal principles
Rule 56.02 of the Rules provides:
56.02 Time for commencement of proceeding
(1)A proceeding under this Order shall be commenced within 60 days after the date when grounds for the grant of the relief or remedy claimed first arose.
(2)Where the relief or remedy claimed is in respect of any judgment, order, conviction, determination or proceeding, the date when the grounds for the grant of the relief or remedy first arose shall be taken to be the date of the judgment, order, conviction, determination or proceeding.
(3)The Court shall not extend the time fixed by paragraph (1) except in special circumstances.
In McKechnie v VCAT (McKechnie),[2] Cavanough J accepted that the authorities relevant to r 56.02 establish that:
[2] (2020) 62 VR 54, [78]–[79].
(a) the Court must be objectively satisfied that special circumstances exist;
(b) what are special circumstances is determined by all the circumstances of a case;
(c) factors relevant to the exercise of the discretion by the Court are:
(i) the period of delay;
(ii) the reasons for the delay;
(iii) whether the plaintiff has an arguable case;
(iv) justice to both parties including prejudice to the parties; and
(v) the public interest in the finality of litigation…
[T]he burden is on the moving party to establish, by evidence, the circumstances relied upon and to persuade the Court that an extension of time is warranted.
[I]f a case is unmeritorious it would be futile to grant an extension, and that is highly relevant to whether ‘special circumstances’ are made out.
Mr Taylor’s current application for judicial review
Mr Taylor did not attend the hearing of his application for an extension of time.
Mr Taylor’s application for judicial review is brought under Order 56 of the Rules.
Mr Taylor’s application sets out ten grounds. It is important to say that none of Mr Taylor’s grounds go to the legality of the Attorney-General’s decision in relation to Mr Taylor’s petition.
Ground 1, in summary, contends that the question of Mr Taylor’s continued registration as a teacher could only be determined after his criminal proceeding was concluded. This was a reformulation of a ground considered by Kaye JA in Mr Taylor’s application for leave to appeal Ginnane J’s decision. Kaye JA found this ground had no arguable prospect of success.[3]
[3]Taylor (n 1) [31]–[34].
Ground 2 contends that VIT discriminated against Mr Taylor by refusing his application for an adjournment. This was a reformulation of a ground considered by Ginnane J and, on Mr Taylor’s application for leave to appeal, by Kaye JA. Ginnane J concluded that Mr Taylor had not demonstrated that he had been denied natural justice by the refusal of the adjournment. Kaye JA determined that there was no basis upon which Mr Taylor had demonstrated any error in Ginnane J reaching that conclusion.[4]
[4]Ibid [35].
Ground 3 contends that VIT obtained information about Mr Taylor in breach of the ETR Act and the Information Privacy Principles in the Privacy and Data Protection Act 2014 (Vic). This is a reformulation of a ground considered by Kaye JA to have no substance.[5]
[5]Ibid [37].
Ground 4 contends that a procedural error occurred because Mr Stewart Williams, the VIT investigator, erroneously concluded that Mr Taylor’s academic transcript was false despite Deakin University stating it appeared to be authentic. This ground is a reformulation of a ground considered by Kaye JA to be without substance.[6]
[6]Ibid [59].
Ground 5 contends that VIT and the Panel erred in proceeding under the ETR Act rather than the Victorian Institute of Teaching Act 2001 (Vic). This ground was also considered by both Ginnane J and Kaye JA in their respective judgments and found to be without substance.[7]
[7]Taylor v Victorian Institute of Teaching (No 1 – The Judicial Review Proceeding) [2022] VSC 184, [38] (Taylor (No 1)). See also Taylor (n 1) [36].
Ground 6 contends the Panel used the wrong legal test by applying the principles stated by Boddice J in Board of Professional Engineers of Queensland v Shirtcliffe [2014] QSC 179. This ground was also considered by Kaye JA who found the ground misconceived and the relevant reasoning of the Panel unimpeachable.[8]
[8]Ibid [39].
Ground 7 is in identical terms to ground 6.
Ground 8 contends that the Panel made decisions and reached conclusions beyond their jurisdiction. The substance of this ground appears, from Mr Taylor’s affidavit material, to be that the Panel ‘made a criminal ruling on a photocopied birth certificate…The allegation that the birth certificate is false must go before a court of law for determination — and then the panel can extrapolate a decision.’ This appears to be a reformulation of a ground argued before VCAT that the Panel had found Mr Taylor guilty of fraud. Ginnane J rejected this characterisation of the Panel’s finding that Mr Taylor had engaged in misrepresentation.[9] Kaye JA also concluded that the information and evidence before the Panel established Mr Taylor had obtained his registration by misrepresentation, including by providing a false identity document in support of his application.[10] This ground is without substance.
[9]Taylor v Victorian Institute of Teaching (No 2 – The VCAT Appeal Proceeding) [2022] VSC 185, [29] (Taylor (No 2)).
[10]Taylor (n 1) [38].
Ground 9 contends that the VIT’s decision to deregister Mr Taylor was excessive and an inappropriate punishment. Ginnane J found that ‘it was certainly open to the Panel to decide the appropriate outcome of its hearing and determination was to cancel Mr Taylor’s registration’.[11] That finding was not disturbed on appeal. Indeed, Kaye J described the Panel’s line of reasoning leading to its conclusion that it was appropriate to cancel Mr Taylor’s registration as ‘unimpeachable’.[12]
[11]Taylor (No 1) (n 7) [44].
[12]Taylor (n 1) [39].
Ground 10 contends that the Panel have never released, and now refuse to release a fully signed decision. Mr Taylor unsuccessfully argued this ground before VCAT. Ginnane J found VCAT’s conclusion correct that there was no basis for Mr Taylor’s argument that any failure by the VIT to have the Panel’s decision signed by each of the Panel members rendered the decision void.[13] Kaye JA also noted that VCAT ‘also (correctly) rejected that submission’.[14]
[13]Taylor (No 2) (n 9) [15]. See also Taylor (No 1) (n 7) [39]–[40].
[14]Taylor (n 1) [46].
I emphasise that none of Mr Taylor’s proposed grounds identify an error of law alleged to have been made by the Attorney-General in considering Mr Taylor’s petition for mercy.
From the above, it follows that none of Mr Taylor’s proposed grounds of appeal have any arguable prospect of success. Indeed, they have been determined by a judge of appeal to be totally without merit.
I also note that while not argued explicitly in this proceeding, there is a real question whether judicial review of a decision refusing a petition of mercy is even available.[15]
[15]See, for example, the discussion of the relevant authorities by the Queensland Court of Appeal in Holzinger v Attorney-General (2020) 5 QR 314.
The length of and reasons for the delay
As noted above, Mr Taylor filed his originating motion approximately nine months out of time. Nine months is a lengthy and serious delay.
Mr Taylor has broadly identified three factors as reasons for the delay.
First, Mr Taylor said the computer facilities at the detention centre where he was being held during the relevant period were unreliable, often froze and had limited functionality.
Mr Taylor has not articulated how his limited access to computer facilities affected his ability to commence this proceeding within the time limit. Further, limited access to reliable computer facilities is not unusual. As noted by Cavanough J in McKechnie, ‘those restrictions did not seem to be any greater than would face any other prisoner. The matters put to me by the plaintiff did not strike me as being so unusual or out of the ordinary as to provide much support for a finding of special circumstances.’[16] Cavanough J’s comments are equally applicable to this case and I respectfully agree with them.
[16](2020) 62 VR 54, [80].
Second, Mr Taylor said that while in detention he became aware through the media that the Victorian court system was suffering from delays due to measures in response to the COVID-19 pandemic.
Mr Taylor has not articulated why delays in existing proceedings in the Victorian court system during the period of emergency measures put in place in response to the COVID-19 pandemic caused his delay in commencing judicial review proceedings. In the absence of an explanation of a relevant connection between the two, this reason is not capable of supporting a finding of special circumstances.
Third, Mr Taylor submitted that from 30 April 2021 when the Attorney-General communicated her decision in relation to his petition, he had engaged in correspondence seeking reasons for the Attorney-General’s decision. Mr Taylor requested reasons in correspondence dated 30 April 2021, 5 May 2021 and 11 May 2021. The Attorney-General’s written reasons for her decision were provided to Mr Taylor on 16 July 2021. Mr Taylor made further requests for reasons on 17 July 2021 and 19 November 2021.
Mr Taylor has not articulated how the correspondence caused the delay. I accept the submissions of the Attorney-General’s counsel that the Attorney-General was under no obligation to provide reasons for her decision. Notwithstanding this, Mr Taylor was provided with written reasons on 16 July 2021. Mr Taylor did not commence this proceeding until 6 April 2022.
None of Mr Taylor’s proposed grounds relate to the legality of the Attorney-General’s decision. I do not accept that the correspondence between Mr Taylor and the Attorney-General, following notification of her decision, constitute special circumstances.
Consideration
Mr Taylor’s delay of nine months in commencing this proceeding is lengthy and serious.
I am not satisfied that Mr Taylor has demonstrated adequate reasons for that delay.
Mr Taylor’s proposed grounds have been considered on multiple occasions in this Court and the Court of Appeal and been found to be totally without merit. It would be futile to grant an extension of time to Mr Taylor.
Mr Taylor has had several opportunities to press the grounds he seeks to agitate in this proceeding. He has been wholly unsuccessful on each occasion. The Attorney-General would be prejudiced if this proceeding were allowed to continue. That prejudice would involve the time and resources necessary to defend proceedings which raise issues already considered and determined by VCAT and the Court.
Finally, I find that the public interest in the finality of litigation also tells against the grant of an extension of time.
I find that Mr Taylor has not satisfied the Court that special circumstances exist such that it would be appropriate for the Court to grant an extension of time.
Mr Taylor’s application for an extension of time is refused. Having refused to extend time to allow Mr Taylor to bring his judicial review proceeding, it is appropriate that I dismiss this proceeding.
At the hearing the Attorney-General’s counsel submitted that, if the Court ultimately refused Mr Taylor’s extension of time application, the Court should order that Mr Taylor pay the Attorney-General’s costs on a standard basis.
Unless otherwise provided by any Act or the Rules, the costs of all matters in this Court are in the discretion of the Court, and the Court has full power to determine by whom and to what extent the costs are to be paid.[17] The discretion is unfettered but must be exercised judicially, ie. not by reference to irrelevant or extraneous considerations, but upon facts connected with the litigation. In the exercise of the costs discretion, practices or guidelines have developed but these are not legal rules that confine the exercise of the discretion.[18]
[17]Supreme Court Act 1986 (Vic), s 24(1).
[18]Oshlack v Richmond River Council (1998) 193 CLR 72, 86.
The usual practice of the Court is that costs follow the event, meaning that the Court usually orders the unsuccessful party to pay the successful party’s costs on a standard basis.
I have decided to refuse Mr Taylor’s extension of time application. I see no reason to depart from the usual practice of the Court in awarding costs.
Conclusion
For the reasons given above I will order that:
(a) The plaintiff’s application for an adjournment is refused.
(b) The plaintiff’s application for an extension of time is refused.
(c) The proceeding is dismissed.
(d) The plaintiff pay the defendant’s costs of and incidental to the proceeding on a standard basis, to be taxed in default of agreement.
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