Taylor v Merlino
[2022] VSCA 37
•21 March 2022
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2021 0038
| JULIAN TAYLOR | Applicant |
| v | |
| THE HONOURABLE JAMES MERLINO, MINISTER FOR EDUCATION | Respondent |
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| JUDGES: | KYROU and NIALL JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 11 March 2022 |
| DATE OF ORDERS: | 11 March 2022 |
| DATE OF REASONS: | 21 March 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 37 |
| JUDGMENT APPEALED FROM: | [2021] VSC 23 (Richards J) |
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PRACTICE AND PROCEDURE – Self-represented litigant in immigration detention – Difficulties accessing functional computer – Application for adjournment – Application refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | -- |
| For the Respondent | Ms F Batten | Victorian Government Solicitor |
KYROU JA
NIALL JA:
Introduction and summary
On 1 February 2021, a judge in the Trial Division summarily dismissed the applicant’s application for judicial review of a decision by the respondent (‘Minister’) to refuse to investigate complaints the applicant had made about the conduct of a registered teacher and an investigator employed by the Victorian Institute of Teaching (‘VIT’).[1] The applicant represented himself in that proceeding.
[1]Taylor v Minister for Education [2021] VSC 23 (‘Reasons’).
On 21 February 2021, the applicant filed an application for leave to appeal against the judge’s decision and a written case in support of that application. Those documents were prepared by him. The application for leave to appeal was listed for hearing before us on 11 March 2022.
At the commencement of the hearing on that day, at which he represented himself, the applicant sought an adjournment. He relied upon four grounds, the first being that his lack of access to a functional computer at the immigration facility at which he was being detained had prevented him from preparing his case.
We refused to grant an adjournment and stated that we would publish our reasons at a later date. These are our reasons.
Factual and procedural background
The applicant is a British citizen and came to Australia with his parents in 1969 when he was a child. He never acquired Australian citizenship.
Between November 2005 and August 2015, the applicant was registered as a teacher with the VIT and taught at a number of different schools.
In June 2015, the principal of one of those schools notified the VIT of concerns about the applicant’s identity. The VIT commenced an investigation, which was conducted primarily by one of its investigators, Stewart Williams.
On 12 August 2015, the VIT held a formal hearing in respect of allegations that the applicant obtained registration to teach by: completing his applications in a false name; failing to disclose previous names; failing to disclose findings of guilt and convictions for indictable offences in Victoria and elsewhere; and providing a false identity document in support of his application. The applicant applied for an adjournment of the hearing on the basis of severe asthma and a broken hip. The application was denied and the hearing proceeded in his absence.
On 31 August 2015, the panel conducting the formal hearing found that the applicant had obtained his registration as a teacher by misrepresentation and determined to cancel his registration as of that date. The applicant applied to the Victorian Civil and Administrative Tribunal (‘VCAT’) for a review of the panel’s decision. VCAT made an order striking out the application.[2] The applicant also commenced a proceeding in the Trial Division seeking leave to appeal against VCAT’s order.[3] It appears that that proceeding has not yet been determined.
[2]Taylor v Victorian Institute of Teaching [2020] VCAT 1359.
[3]Reasons [4], n 2.
Following the cancellation of his registration as a teacher, the applicant was charged with and convicted of a number of criminal offences related to his registration and work as a teacher. In August 2018, he was sentenced to 2 years and 11 months’ imprisonment. He has been a detainee at an immigration facility since he completed that sentence and faces the prospect of deportation.
In May and June 2020, the applicant sent emails to the VIT and the Minister which made allegations against Mr Williams and a registered teacher (his former wife, Khaleda Barr), and requested that his allegations be investigated.
The applicant’s allegations against Ms Barr were that:
(a)she had made false statements in support of the applicant’s application for registration as a teacher; and
(b)she was of ‘bad character’ and unfit to be a teacher of young adults.
The applicant’s allegations against Mr Williams were that:
(a)he had conspired with Ms Barr to cover up information about her prior knowledge of the applicant’s criminal history when she made declarations and references in support of his application to teach; and
(b)he had directed a police officer to have the applicant denied bail.
The VIT responded on behalf of the Minister by letter dated 25 June 2020, declining to investigate the applicant’s allegations.
In relation to the allegations set out at [12(a)] above, the letter stated that the VIT had previously conducted an investigation in relation to whether Ms Barr had engaged in misconduct by providing declarations and references in support of the applicant’s application for registration, and that ‘this matter has been resolved’.
In relation to the allegations set out at [12(b)] above, the letter stated that, as there was no independent evidence to support them, the VIT would not be conducting a further investigation into Ms Barr. The letter added that, if the applicant had any direct evidence of Ms Barr engaging in fraudulent conduct, he ‘may wish to provide this to VIT and/or Victoria Police’.
In relation to the allegations set out at [13(a) and (b)] above, the letter stated that, as there was no evidence available to substantiate them, the VIT ‘will not be pursuing this matter further’.
On 14 July 2020, the applicant commenced a proceeding in the Trial Division seeking orders in the nature of mandamus to compel the Minister to investigate Ms Barr’s fitness to teach and the applicant’s claims of discrimination and victimisation against Ms Barr and Mr Williams. Alternatively, the applicant sought a direction that the Minister give reasons for not conducting those investigations.
As we have already stated, on 1 February 2021, a judge in the Trial Division summarily dismissed the proceeding.
The judge stated that relief in the nature of mandamus could only be granted if the Minister had a public duty to investigate Ms Barr’s fitness to teach and Mr Williams’ conduct as a VIT employee, or to provide reasons for not doing so.[4] She held that the applicant had no real prospect of obtaining the orders he sought against the Minister because of the following three key findings. First, the Minister had no power or duty to investigate a teacher’s fitness to teach, or to direct the VIT to do so.[5] Secondly, the Minister had no power, duty or function to investigate alleged misconduct by a VIT employee, or to direct the VIT to do so.[6] Thirdly, because the Minister had no public legal duty to investigate the applicant’s allegations against Ms Barr and Mr Williams, the Minister had no duty to provide reasons for not doing so.[7]
[4]Reasons [11].
[5]Reasons [22].
[6]Reasons [24]–[29].
[7]Reasons [30].
The judge stated that the applicant’s case was based upon the Minister’s constitutional responsibility for matters within the education portfolio, including the administration of the VIT and the Education and Training Reform Act 2006 (‘Education Act’). She found that this argument misconstrued the Public Administration Act 2004 (‘PAA’) and fundamentally misunderstood the role of the Supreme Court in relation to a Minister’s accountability to Parliament under s 85(2) of that Act. That was said to be because the responsibility of a Minister to Parliament is a form of political control in which the Court had no role to play.[8]
[8]Reasons [18]–[21], [28].
As we have already stated, the applicant filed an application for leave to appeal against the judge’s decision. His application and written case do not succinctly set out his proposed grounds of appeal. They also raise matters that are not relevant to the question whether the judge erred. However, both parties have signed an agreed summary dated 28 May 2021. The summary states that the issues in the proposed appeal are whether the judge erred by not finding that, by reason of the Education Act, the PAA, the Victorian Institute of Teaching Enterprise Agreement 2016 or the principle of ministerial accountability to Parliament, the Minister owed a public legal duty capable of enforcement by judicial review, which would entitle the applicant to orders that:
(a)the Minister commence an investigation into the fitness to teach of a teacher registered with the VIT;
(b)the Minister commence an investigation into alleged discrimination and victimisation in relation to the cancellation of the applicant’s registration as a teacher; and
(c)the Minister provide reasons for not conducting such investigations.
On 15 September 2021, the Minister filed an amended written case in which he referred to amendments made to the Education Act by the Education and Training Reform Amendment (Miscellaneous) Act 2021 (‘amending Act’), which conferred additional authority upon the Minister. The Minister contended that the amendments did not affect the correctness of the judge’s decision. That was said to be because the additional authority did not encompass the matters the applicant requested be investigated or, if the authority did, it was in the nature of a power rather than a duty.
The Registrar of the Court of Appeal gave leave to the applicant to file, by 22 September 2021, submissions in reply in relation to the Minister’s contentions regarding the effect of the amending Act. That time limit was extended by the Registrar to 6 October 2021 and then further extended to 2 February 2022. The applicant did not file any submissions in reply.
The Registrar arranged for the applicant to receive hard copies of the application book and the folder of authorities and legislation to assist him in preparing for the hearing of the application for leave to appeal.[9] Those documents were provided to the applicant in December 2021. On 6 December 2021, the parties were informed that the application for leave to appeal would be heard on 11 March 2022.
[9]The folder of authorities and legislation included the Education Act, the amending Act and the second reading speech for the amending Act.
Application for an adjournment
The applicant foreshadowed the possibility that he may apply for an adjournment in various emails he sent to the Registry, including emails dated 1 December 2021 and 8 March 2022.
At the hearing of the application for leave to appeal on 11 March 2022, the applicant relied upon four reasons for seeking an adjournment.
The first reason was that, for the past six to seven months, the applicant and other detainees at the immigration facility have not had access to a functional computer and that this has impeded his ability to prepare for the hearing. The applicant stated that he cannot: access the Internet to conduct research; open certain files; or download attachments to emails. He said that, despite numerous complaints to various organisations, the position has not improved and he could not say when improvements would be made, if at all. In relation to the amending Act, the applicant submitted that he needed access to the Internet to conduct research on the meaning of words set out in that Act in order to prepare his submissions in reply.
The second reason was that, by virtue of art 14 of the International Covenant on Civil and Political Rights (‘ICCPR’), the applicant was entitled to equality before the law and adequate time and facilities for the preparation of his defence.
The third reason was that the hearing should be adjourned until after the determination of the application before the Trial Division, which is referred to at [9] above, as that determination may result in a favourable resolution of the applicant’s underlying complaints and render unnecessary continuation of the hearing.
The fourth reason was that the applicant now considers that his originating motion before the judge was too narrow and he may issue a fresh originating motion.
The Minister relied upon five reasons for opposing the application for an adjournment.
The first reason was that the applicant is the initiating party and has demonstrated by his application for leave to appeal and written case that he is capable of articulating his case, notwithstanding that he is in immigration detention.
The second reason was that the issues on the appeal are the same as the issues before the judge, save for the amending Act, and the applicant is familiar with them.
The third reason was that, in relation to the amending Act, the applicant has had the Minister’s amended written case for many months and has had ample opportunity to prepare his submissions in reply.
The fourth reason was that the applicant has not demonstrated that the difficulties with computers that he is experiencing have impeded his ability to prepare for the hearing. The issues before this Court were said to be narrow and turn primarily on the provisions of the Education Act, the amending Act and the second reading speech for the amending Act. According to the Minister, the applicant has had hard copies of these materials for some time.
The fifth reason was that, based upon the applicant’s statements to the Court, it was unclear that providing the applicant with additional time would alleviate the current problems with access to a functional computer.
The Minister submitted that, in deciding whether to grant an adjournment, the Court should take into account the interests of other litigants, the need to maintain public confidence in the judicial system, and the overarching purpose in s 7(1) of the Civil Procedure Act 2010 (‘CPA’). That purpose is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.
In reply, the applicant referred to the fact that he had received from the Minister’s solicitors hard copies of three cases relating to adjournment applications on the evening of 10 March 2022. In relation to the Minister’s submission relating to public confidence in the judicial system, the applicant submitted that the allegations he has made need to be investigated to give the public confidence in the VIT.
Decision
We were not satisfied that the difficulties that the applicant has experienced in accessing a functional computer have unfairly prejudiced his ability to prepare for the hearing. That is because, save for the relevance, if any, of the amending Act, the issues on appeal are precisely the same as the issues before the judge. Those issues are of a narrow legal nature and, as is apparent from the judge’s reasons, the applicant was able to adequately articulate his arguments in support of the orders he sought. The applicant prepared a written case in support of his application for leave to appeal and did not suggest that he was unfairly impeded in doing so. The preparation of that document demonstrates an ability on the part of the applicant to present such arguments as he wished to advance.
As for the amending Act, the provisions that are potentially relevant to the application for leave to appeal are very brief and the Minister’s contentions in relation to them are easy to follow. The applicant has had ample opportunity to consider the provisions and the contentions, and prepare submissions in relation to them.
As we have previously stated, the applicant could not say when the current difficulties with accessing a functional computer will be resolved, if at all. This means that a time may never arrive at which the applicant considers that his access to a functional computer is adequate. Clearly, this Court cannot adjourn the hearing of the application for leave to appeal indefinitely.
There is clearly a public interest in finality in litigation, including for appeals against judicial decisions to be heard and determined as soon as possible. Once an appeal is listed for hearing on a particular day, parties to other appeals are deprived of the opportunity of having their appeals heard on that day. Likewise, where a hearing of an appeal is adjourned to a new date, the adjournment affects not only the parties to that appeal, but also the parties to other pending appeals who are not able to have their appeals heard on the new date. Judicial resources are limited and it is in the interests of justice — and consistent with the overarching purpose in s 7(1) of the CPA — that adjournments are granted only when they are necessary to prevent practical injustice. For the reasons we have outlined, in the present case, refusal of an adjournment will not cause practical injustice to the applicant.
It follows that we were not persuaded that the applicant’s difficulties in accessing a functional computer sufficed as a basis for granting an adjournment.
Assuming, for the sake of argument, that the ICCPR could apply to the applicant, we cannot see how art 14 can assist him. Paragraphs 2–7 of art 14 deal with defendants to criminal proceedings and therefore are not relevant to a party to a civil proceeding. The following provisions of para 1 apply to such a party:
All persons shall be equal before the courts and tribunals. In the determination of … his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.
The applicant has not explained how the above provisions of para 1 of art 14 are relevant to his application for an adjournment.
The existence of a proceeding in the Trial Division which, if resolved in favour of the applicant, might result in him discontinuing the application for leave to appeal is not an appropriate basis for granting an adjournment. Although we were not provided with details of the outstanding proceeding in the Trial Division, we can be confident that it does not deal with the limited legal issues that are the subject of the application for leave to appeal. The application for leave to appeal was listed for hearing on 11 March 2022 and we were ready to hear it on that day. In these circumstances, it would have been inappropriate for us to defer the hearing based upon the possibility, first, that the applicant might succeed on an unrelated proceeding in the Trial Division and, secondly, that the applicant might decide to discontinue the application for leave to appeal based upon such a successful outcome.
Finally, the possibility that the applicant might file a new originating motion in the Trial Division does not provide any sensible basis for adjourning the application for leave to appeal.
For completeness, we note that, when we informed the parties that the applicant’s application for an adjournment would be refused, the applicant stated that he will withdraw the application for leave to appeal and file an amended originating motion.
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