Taylor v Victorian Institute of Teaching

[2020] VSC 780

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2020 03043

JULIAN TAYLOR	Plaintiff
v
VICTORIAN INSTITUTE OF TEACHING	Defendant

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 November 2020
DATE OF JUDGMENT:	17 November 2020
CASE MAY BE CITED AS:	Taylor v Victorian Institute of Teaching
MEDIUM NEUTRAL CITATION:	[2020] VSC 780

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JUDICIAL REVIEW – Cancellation of teaching registration – VCAT proceeding – Subsequent judicial review proceeding – VCAT to determine whether an extension of time should be granted to commence proceeding – Whether judicial review proceeding should be dismissed as vexatious or an abuse of process or summarily dismissed – Civil Procedure Act 2010 s 62, Supreme Court (General Civil Procedure) Rules 2015, 0 23 r 1.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendant	Ms M Isobel	Jeeviya Mather

HIS HONOUR:

1. The defendant, the Victorian Institute of Teaching, seeks orders dismissing the plaintiff’s judicial review proceeding under r 23.01 of the Supreme Court (General Civil Procedure) Rules 2015 on the basis that it is vexatious, oppressive and an abuse of process to bring two concurrent proceedings on the same issue in two different courts or tribunals. In the alternative, it seeks summary judgment under s 62 of the Civil Procedure Act 2010.

1. The application is based on the principles discussed by the High Court in Henry v Henry[1] that it is prima facie vexatious and oppressive to commence a second or subsequent action in courts or tribunals if an action is already pending with respect to the matter in dispute.

   [1](1996) 185 CLR 571, 591.

1. Mr Taylor’s proceedings concern the cancellation of his registration as a teacher under the Education and Training Reform Act 2006. Mr Taylor’s application to the Victorian Civil and Administrative Tribunal was made in September 2019 and he commenced this judicial review proceeding on 25 June 2020, nine months later.

1. The two cases may not overlap. The VCAT proceeding, as counsel for the defendant has pointed out, provides a review procedure from a relevant decision of the Institute and the unsuccessful party can seek to appeal on a question of law to this Court. But VCAT must make a fresh decision, namely, whether Mr Taylor’s registration should be cancelled. VCAT makes its decision afresh on the evidence presented to it and may not be concerned with the legalities or the appropriateness of the original decision.

1. The proceeding for judicial review in this Court is different. A person aggrieved by a reviewable decision may seek judicial review in this Court. Judicial review proceedings often question the legality of the original decision. In exercising judicial review powers, this Court does not make a fresh decision and does not undertake a merits review as VCAT often does.

1. It may be that in a particular instance, a person who commences a VCAT proceeding and then a proceeding in this Court may be acting in a vexatious or oppressive manner. It depends on what is sought, for instance, if a plaintiff sought merits review in both the Tribunal and the Court, it would be oppressive. But when the plaintiff, by a second proceeding, seeks a decision in this Court as to the legality of the original decision, it may not be.

1. The defendant argues that it is oppressive to have the Supreme Court proceeding and the VCAT proceeding on foot at the same time. But, I have not heard sufficient argument about the merits of the Supreme Court proceeding to say that it is vexatious or oppressive or an abuse of process, in the sense that it has no real prospects of success, although it, too, appears to have been commenced out of time.

1. I asked Mr Taylor why he commenced the VCAT proceeding and his explanation was that it was commenced first and that it was only after an FOI request that he realised that he might have a case to be brought in the Supreme Court. I also asked him why he wanted to continue the VCAT proceeding and his response was vague and included that it was only a few weeks away until it was decided and he suspected that he would lose. All of that might provide a basis for a conclusion that there is no point in him continuing with the VCAT proceeding and may make the maintenance of the two proceedings vexatious or oppressive. But the VCAT proceeding was first in time and on 2 December 2020, VCAT is to be asked to determine whether Mr Taylor’s proceeding should be granted an extension of time and allowed to continue although it appears to have been commenced out of time.

1. If VCAT decides that it will not extend the time and dismisses the proceeding, the underpinning of the Institute’s application made today is removed and only one proceeding would remain. In that event, the Institute may seek to have this Court determine that the Supreme Court proceeding is out of time and that the time should not be extended. That is a separate matter that has not been argued today.

1. I do not consider that this Court should decide the Institute’s summons until VCAT has ruled on whether it will extend time for Mr Taylor to bring his proceeding in that Tribunal.

1. So I will adjourn the Institute’s summons to Friday, 29 January 2021. I direct that no further step be taken in this proceeding prior to that date, with the exception of filing any documents concerning or connected with the status of VCAT proceeding Z845/2019 wherein the plaintiff is the applicant and the defendant is the respondent. I reserve costs.