JUDGE:	Matthews J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 June 2023
DATE OF JUDGMENT:	3 July 2023
CASE MAY BE CITED AS:	Taylor v Tang & Anor
MEDIUM NEUTRAL CITATION:	[2023] VSC 373

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ADMINISTRATIVE LAW – Application for leave to appeal from Victorian Civil and Administrative Tribunal decision – Claim of victimisation or discrimination under Equal Opportunity Act 2010 – Claim summarily dismissed by Victorian Civil and Administrative Tribunal pursuant to s 75 of the Victorian Civil and Administrative Tribunal Act 1998 on the grounds that it was misconceived – No real prospect of success – No utility in granting leave even if there was a real prospect of success – Leave to appeal refused.

COURTS AND JUDGES – Recusal – Whether there is actual bias or a reasonable apprehension of bias – Application that judge recuse herself – No evidence to support application – Application that judge recuse herself refused.

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APPEARANCES:	Counsel	Solicitors
The Applicant, in person
For the Respondents	Mr L Brown, with Ms A Martyn	Victorian Government Solicitor’s Office

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Background......................................................................................................................................... 2

Relevant factual background regarding the subject matter of this proceeding................... 2
Relevant procedural background............................................................................................... 4
The hearing on 14 June 2023........................................................................................................ 6

The recusal application..................................................................................................................... 7

The Applicant’s submissions....................................................................................................... 7
The Respondents’ submissions................................................................................................... 8
Reasons for refusing the recusal application.......................................................................... 10
General principles applicable to the recusal application............................................. 10
Analysis............................................................................................................................... 11

The Leave Application.................................................................................................................... 12

Relevant law................................................................................................................................. 12
The content of the notice of appeal........................................................................................... 15
The Applicant’s affidavits.......................................................................................................... 17
The Respondents’ affidavit........................................................................................................ 19
The Applicant’s submissions..................................................................................................... 19
The Respondents’ submissions................................................................................................. 21
Is it arguable that the Order was affected by an error of law?................................... 21
Does the statutory immunity afforded the Respondents mean that there is no utility in granting the Applicant leave to appeal the Order?.......................................... 24

Consideration.............................................................................................................................. 25

The Applicants’ summonses.......................................................................................................... 28

Conclusion......................................................................................................................................... 29

HER HONOUR:

Introduction

These reasons concern an application for leave to appeal (dated 13 September 2022 and signed 14 September 2022, yet filed 18 August 2022) made by the Applicant (‘Leave Application’). By the Leave Application, the Applicant seeks leave to appeal an order made by Deputy President Nihill of the Victorian Civil and Administrative Tribunal (‘Tribunal’) on 1 August 2022 (‘Order’) to this Court pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’).

The Applicant relies on his affidavits affirmed 14 September 2022, 28 November 2022, 13 December 2022, 4 January 2023 (two affidavits affirmed that day), 2 February 2023, 10 May 2023 and 22 May 2023.

The Respondents rely on an affidavit of Veronica Belot sworn 23 January 2023 (‘Belot Affidavit’). Ms Belot is a managing principal solicitor at the Victorian Government Solicitor’s Office (‘

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Taylor v Tang

Details

AGLC: Taylor v Tang [2023] VSC 373
Case: [2023] VSC 373
Decision Date: 3 July 2023

CaseChat Overview and Summary

The case of Taylor v Tang involved an application for leave to appeal a decision of the Victorian Civil and Administrative Tribunal (VCAT). The applicant, Taylor, sought to appeal the Tribunal's summary dismissal of their claim of victimisation or discrimination under the Equal Opportunity Act 2010. The Tribunal had dismissed the claim on the grounds that it was misconceived and that there was no real prospect of success, as well as no utility in granting leave even if there was a real prospect of success.

The legal issues before the court were whether there was a real prospect of success in the appeal against the VCAT's decision, and whether there was utility in proceeding with the appeal even if there was a real prospect of success. Additionally, the court considered whether there was any evidence to support a claim that the judge should recuse herself due to actual bias or a reasonable apprehension of bias.

In its reasoning, the court found that the applicant had failed to demonstrate that there was a real prospect of success in the appeal against the VCAT's decision, and that there was no utility in proceeding with the appeal even if there was a real prospect of success. The court also found that there was no evidence to support the claim that the judge should recuse herself due to actual bias or a reasonable apprehension of bias. Accordingly, the court refused the application for leave to appeal and the application for the judge to recuse herself.

The final orders of the court were that the application for leave to appeal the VCAT decision and the application for the judge to recuse herself were both refused.

Orders