WUT v Victoria Police

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 03756

WUT	Appellant
v
VICTORIA POLICE	Respondent

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 March 2020; Final written submission 6 April 2020
DATE OF JUDGMENT:	11 September 2020. First Revision 29 October 2021
CASE MAY BE CITED AS:	WUT v Victoria Police
MEDIUM NEUTRAL CITATION:	[2020] VSC 586

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ADMINISTRATIVE LAW – Private Security Licence – Renewal application – Victorian Civil and Administrative Tribunal decision affirming decision refusing renewal – Leave to appeal application – Whether questions of law – Public interest – Fit and proper person – Relevant considerations – Unreasonableness – Self-represented litigant – Procedural fairness requirements – Private Security Act 2004 s 25.

TRIBUNALS – VCAT – General procedure of VCAT – Self-represented litigants – Victorian Civil and Administrative Tribunal Act 1998 ss 98, 102.

DISCRIMINATION – Whether licence renewal questions about mental health were lawful- Questions necessary to comply with or authorised by Act – Equal Opportunity Act 2010 ss 8, 75.

HUMAN RIGHTS – Public Authority – Right to fair hearing – Overlap of issues in civil and criminal proceedings – Appropriate procedure - Right to equality before the law - Charter of Human Rights and Responsibilities Act 2006 – ss 4(1)(j), 6(2)(h), 8, 24, 38.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	In Person
For the Respondent	Mr M McLay	Victorian Government Solicitor’s Office

HIS HONOUR:

Background

In February 2018, WUT[1] applied to Victoria Police under the Private Security Act 2004 (‘the Act’) for the renewal of his Private Security Individual Operator Licence for the activity of investigator (‘licence’). WUT first obtained a licence in 2009 but it expired in April 2012 and he did not seek its renewal. In October 2014, he successfully sought a licence and in April 2018 sought its renewal. The Chief Commissioner’s delegate refused the application. A Deputy President of the Victorian Civil and Administrative Tribunal (‘Tribunal’) affirmed that decision. WUT now seeks leave to appeal to this Court against the Tribunal’s orders.
[1]This proceeding is subject to a proceeding suppression order made under the Open Courts Act 2013.

By way of background, in December 2015, Senior Sergeant D Pinner (‘Pinner’) was allocated a file about a complaint made by WUT against Leading Senior Constable S Hafner (‘Hafner’), a member of Victoria Police’s Licensing and Regulation Division (‘LRD’) following a hearing at the LRD office into whether WUT had been offering investigative services using a business name not approved by the Chief Commissioner. After Pinner spoke to WUT that complaint was resolved. However, the inquiry into his use of business names continued. There was no suggestion that WUT had ever been the subject of any complaint by a client.

In January 2016, WUT completed a Victorian Private Security Business Personal Information Form and provided it to Victoria Police in which he declared that he had not been treated for psychiatric or emotional problems.[2]
[2]WUT v Victoria Police (Review and Regulation) [2019] VCAT 1125, [73] (‘WUT v Victoria Police’).

By letter of 29 January 2016, Acting Senior Sergeant L Tas (‘Tas’) advised WUT by letter that Victoria Police had commenced a disciplinary inquiry into his holding a licence in circumstances where he may have carried on the business of offering investigative services using a business name not approved by the Chief Commissioner and to his behaviour towards the regulator, being Victoria Police.

The letter addressed WUT’s behaviour during December 2015 focusing on his contact with LRD members and stated in part:

Behaviour towards regulator
I have also considered relevant to my decision to commence a Disciplinary Inquiry, your behaviour displayed during recent contact with members of the Licensing and Regulation Division.
I understand that the circumstances of your most recent contact with Victoria Police relate to your attempts to report suspected incidences of offending. I have had cause to review your email correspondence sent to … Baullo on Monday, 21 December 2015 (on or around 13:38H) and Monday, 21 December 2015 (on or around 14:28H). While at this stage I do not wish to assess the substance of your allegations against … Hafner, I am satisfied you have made unfounded and unreasonable threats to initiate a private prosecution and serious and unfounded allegations of corrupt conduct arising out of a brief telephone exchange with … Hafner.
I consider that your comments made during the telephone call amount to threatening behaviour and that coupled with your comments in the emails, indicates behaviour which is increasingly argumentative and unreasonably aggressive.
On 17th December 2015, during an interview with … Baullo and … Hafner at the Victoria Police Centre, you were questioned as to why you failed to follow multiple lawful directions from … McGuire about how to report a cybercrime using Australian Cybercrime Online Network (ACORN). During this interview your behaviour, tone and volume have raised concerns regarding your mental health.
I am satisfied that those circumstances are suggestive of a pattern of behaviour for which it is sufficient for me to enquire into your physical and mental health as I believe that it may impact on your suitability to continue as a licenced professional.[3]

[3]Ibid [75].

WUT replied in lengthy letters of 10 and 18 February 2016 describing the inquiry as unethical and likely to lead to maladministration.

Senior Sergeant Pinner’s inquiry

In about March 2016, Pinner became the sole point of contact at LRD for the inquiry into WUT’s fitness to hold a licence. Pinner became aware of a 2015 complaint by Detective Senior Constable L McGuire (‘McGuire’), who was a Victorian Police officer seconded to the Australian Cybercrime Online Reporting Network (‘ACORN’), that WUT was unprofessional and was sending him voluminous emails that were threatening in tone.[4] Pinner also became aware of a complaint from WUT’s former accountant and his wife who had obtained a personal safety intervention order against him McGuire described a 4 December 2015 email from WUT to McGuire, copied to a television station and the relevant Victorian Government minister which said:

What is the intent of ACORN?
Do you care that I have the local BSB, Account Number, IP Address, VOIP provider, leading back to the criminal? If so, I ask you to send an investigator to me. If not, this would be consistent with a lack of care from ACORN and government intent – as everybody has reported that you do ‘nothing’. It cost millions of dollars to tax payers to set up this campaign. How is it that you are rejecting complaints from existing customers with legitimate claims when the police don’t even know how to charge these crimes under the Crimes Act 1958 amongst state and other Anti-terrorism laws?
I know for a fact the police have the power to immediately arrest this person and stop further victims. This is now the 3rd rejected ACORN case. What is their intent Hon. Minister Noonan?
I ask the minister to intervene.[5]

[4]Ibid [63].

[5]Ibid [64].

The Deputy President referred to counsel putting to WUT in cross-examination that that email and others he sent to McGuire were threatening and/or irrational. WUT responded that the email was simply him providing information to ACORN, which had failed in its mission concerning cybercrime. He denied that this and related emails were abusive and/or threatening. Counsel then turned to a 19 December 2015 (14:25) email from WUT to McGuire suggesting its nature was threatening, intimidating and abusive. The email stated:

I am obliged to tell you that you are under an investigation for the criminal offence of fraud. I have a duty to report all criminal offences. You purportedly made a statement saying “I have tried calling you regarding this report”. I can forensically prove that no such call was made. I am not stating or purporting to state that you I am using [sic] my right to place you under arrest or take control of you upon waiting police attendance, but I caution you that I am personally [WUT] investigating your conduct and history with the Victoria Police force. Anything you write, say, or do, whether it be a third party or otherwise may be used against you.
Please provide for me forensic evidence that has been verified that shows you called my telephone number [number provided]. In absence of this you have allegedly perverted the course of justice and I will report the matter to the Chief Commissioner of Police and the Ombudsman and provide forensic evidence summoned from my phone provider proving otherwise, seeking a conviction for the crime of fraud under the Crimes Act.
Please advise your badge number, and the alleged date and time and forensic evidence proving you tried to call me by no later than Tuesday 22nd December 2015.[6]

[6]Ibid [67].

The Deputy President recorded that WUT disagreed with this characterisation of this email and similar emails, and described Victoria Police as corrupt. He stated that he was exercising his freedom of expression to speak for Australia. WUT described ACORN as misleading with its computers gathering spider webs. He said that he had solved 20 or 30 cases where ACORN had failed to do so.

Counsel put part of an email to McGuire (21 December 2015 (11:56)) and asked whether WUT considered it threatening and he replied:

As I am ‘currently’ a Private Investigator I am obliged to report crimes. So [officer], you are under investigation and expect a result. I have had sergeant’s disciplined for not doing their job by the Chief Commissioner of Police. I demand you to look at the facts and an apology.[7]

[7]Ibid [69].

The Deputy President stated that:

The 11:56 email is the last of a rapid sequence of four emails over 43 minutes from WUT to McGuire on 21 December, at 11:13 (“You are under investigation and my report will go to the Commissioner of Police. I officially request the above information in relation to a crime … as well as police ethics”), at 11:26 (“Here we go – the exact one you're looking at – yet another ACORN stuff up BEFORE IT GOT TO ME.”), 11:29 (forwarding an email to another person with the text, “The best way is the incompetent pricks that had the nerve to question why I didn't report their crime and fix their crime at the regulator for Private Investigators.”) ending with the 11:56 email.[8]
[8]Ibid [71].

WUT’s licence renewal application

Pinner’s inquiry was still incomplete when in April 2018, WUT applied to renew his then expired licence, and as the Deputy President, stated that application led to the decision under review.[9] The renewal application form required him to answer a question whether in the last five years he had been treated for psychiatric or psychological problems. He crossed the ‘No’ box by way of answering the questions, as he had when completing previous licence applications.[10]

[9]Ibid [100].

[10]Court Book, WUT v Victoria Police (Supreme Court of Victoria, Ginnane J, 10 March 2020) 635, 662 (‘CB’).

Senior Sergeant Pinner’s decision

In a letter of 26 April 2018, Pinner as delegate advised WUT that he proposed to refuse his licence renewal application because he was not satisfied that it was in the public interest for him to hold a licence, nor that he would meet the statutory probity requirements of being a fit and proper person. Pinner raised the following concerns:

a)In the context that WUT had previously declared that he had not the last five years been treated further psychiatric or psychological problems,
i. the 31 October 2011 drug screen with the clinical note, “on prescribed medications – Seroquel, Alprazolam, which Pinner regarded as prescribed for mental health conditions;
ii. that in in December 2012, WUT was found guilty without conviction for refusing to undergo a roadside drug assessment, fined $650 with his driver’s licence cancelled for two years;
iii. the November 2014 report from the Peninsula Drug and Alcohol Program where WUT had apparently disclosed that he was currently prescribed Valium daily as well as antidepressants, which he was taking as prescribed.

b) WUT’s conduct concerning McGuire; and
c)WUT’s conduct concerning the accountant and wife and their obtaining PSIOs.

Pinner invited WUT to make a written submission in reply.[11]

[11]WUT v Victoria Police (n 2) [102].

Pinner had examined WUT’s licence application forms and found that he had not declared any treatment for psychiatric or emotional problems or any other medical conditions. He also examined documents provided by WUT including a report concerning a 2011 drug screen and a report from the Peninsula Drug and Alcohol program of 2014 containing WUT’s disclosure that he was prescribed 10 Valium daily as well as anti-depressants which he was taking as prescribed. He also reviewed a submission by WUT declaring that he had previously taken medications that Pinner understood were usually prescribed for psychiatric or psychological conditions. Pinner formed the opinion that WUT demonstrated a lack of trustworthiness and integrity sufficient to satisfy him that he was a fit and proper person to hold a licence and that he may have a mental health condition that may impact on his ability to hold a licence. He considered that WUT had not alleviated his concerns when he failed to provide any medical evidence.

Well before Pinner’s letter, WUT had been cleared, or at least no case had been established, that he had made any illegal use of business names, which was the issue that had initiated Victoria Police’s inquiry.

WUT sent a seven page letter of reply of 30 April 2018 to Pinner. The Deputy President said that its character was illustrated by its opening paragraph and by a series of quotes that he set out:

I first must say that I am disappointed to receive your letter and can see right through its deceptive intent. To ignore someone for four years, without providing any evidence or excuse for their complaints of misconduct, and to further ignore the written request to withdraw a business application (due to the bias, vengeance, and unacceptable delay and inability of the LRD to exercise a statutory function) shows utmost bad faith. To address it by way of a purported breach of the Act however is low, and unconscionable.[12]

[12]Ibid [104].

The passages and words in WUT’s letter that the Deputy President quoted were:

“excuse (now) for a fanciful act of corruption”; “insulting and discrimination”; “Pursue a case in the Supreme Court for Misfeasance in public office”; “find the LRD’s conduct unreasonable”; “deceptive”; “unconscionable argument”; “absolute victimisation”; “I will aggressively fight such claims, and counter claim them”; “I take offence to your accusation”; “I take serious insult to it, and find that it is a breach to my Charter of Human Rights and Responsibilities Act 2006 (Vic) and the Equal Opportunity Act 2010 (Vic)”; “it is now a fact that ACORN has failed the Australian public”; “counterclaim for misfeasance if necessary”; “you make mistakes like this and if used to detriment a person’s income you can be held liable”; “yourself have conducted a bias and non-impartial; planned and malicious attack on my license which can easily be demonstrated in a detailed timeline; and further; your statements of discrimination with no merit”; “or I will sue”; “put you personally on notice for the tort of misfeasance in public office”; “vexatiously instantiated”; “no evidence of any attempt to conduct an investigation giving an opportunity to respond”; “it is my position that these this action is planned; biased; the result in what the industry already knows is poor regulation and would enliven a civil counter-claim for statutory misfeasance”; “have no hesitation in taking this further with the Courts; Victorian Inspectorate, the Industry and the Media”.[13]

[13]Ibid [105].

The Deputy President described WUT’s letter of 30 April 2018 as not simply restating his belief that he was fit to hold a licence, but also declaring that the challenge to his fitness was only possible due to acts of corruption, discrimination and/or criminal activity.

The Deputy President recorded that WUT gave evidence that he regarded his reply as reasonable, asserting his rights, in the context that all the matters raised by Pinner in April 2018 had been dealt with in 2014. WUT described Pinner’s letter as discriminatory and his response as a description of what he said would happen, but in no way threatening or aggressive. At one point, he described the security industry as regarding Victoria Police as untrustworthy, but he denied that he had no regard for Victoria Police or that he held it in utter contempt.

The Deputy President recorded that during cross-examination, WUT spoke of not being able to wait to get Pinner into the Federal Court and suing counsel for Victoria Police for discrimination, saying that that was not a threat but a promise.[14] Later during cross-examination, WUT said that while he did not regard Pinner as corrupt, or as a bad person, he did regard him as acting incompetently, improperly and inappropriately.[15]
[14]Ibid [108].
[15]Ibid [108].

Events between June and August 2018

In June and July 2018, Victoria Police and WUT exchanged correspondence in which Victoria Police invited him to provide a further medical report concerning his mental health history, current medication and a statement by a medical practitioner as to whether he was a fit and proper person to hold a licence and to work in the private security industry.[16] In a letter from Victoria Police to WUT dated 29 June 2018 concerns were raised whether he suffered from depression, saying that previous medical reports lacked sufficient detail and inviting a comprehensive medical report, but WUT did not respond. He contended that Victoria Police had no power to require such a report and that he could call on Dr Gurtman, a forensic psychologist, who later in November 2018 administered psychological tests to him.
[16]Ibid [109].

On 10 July 2018 WUT sent an email to Pinner headed ‘Re: intent to sue personally for statutory malfeasance and bad faith misuse of police powers’.[17] WUT said that he intended to sue Pinner personally in the Supreme Court of Victoria for statutory misfeasance in public office and bad faith misuse of police powers. He said that Pinner had ignored his correspondence for almost four years and waited till the exact moment his licence was up for renewal to attempt this conduct.[18]
[17]Ibid [112].
[18]Transcript of Proceeding, WUT v Victoria Police (Supreme Court of Victoria, S ECI 2019 03756, Ginnane J, 10 March 2020) 49-52 (‘T’).

On 20 July 2018 WUT sent a further email to Pinner, in effect declining to provide a comprehensive medical report and stating that Pinner’s reasons for requesting it were ‘baseless and outside the law’. He denied withholding medical information and referred to the report of Dr L, his general practitioner, and contended that the medical results showed absolutely nothing in his system and ‘his testimony that (at that time when I was going through a rough time) I was on antidepressants and some Valium as prescribed, not unusual and not excessive’.

In an email to Pinner of 31 July 2018, WUT stated:

Under what Act or Regulation can you raise a suspicion of ‘mental illness’ and subject them to medical testing in breach of the Charter of Human Rights and Responsibilities Act 2006?
Good luck to you in your career. I have read the case law. You have not conducted any inquiry into my ‘mental illness’, and you have not followed the Act. You have further engaged in corrupt conduct and are unfit to hold the position you hold. I will fight you all the way to the Supreme Court for Police Misconduct Malicious Prosecution and Statutory Misfeasance.

I am more fit and proper than you, hold more credentials and am more senior in my industry than you will ever be, and would love the opportunity to have the industry to have the industry see you taken down in court.
Bring it on. It’s about time for your retirement Sir, especially when you, yourself are delusional and having ‘visions’ of illness and diagnosis that are not there … You have access to firearms and I am concerned about your mental stability.[19]

[19]CB 694.

On 3 August 2018, Pinner advised WUT that he had refused to renew his licence because in particular he had concerns that he had failed to ‘declare treatment for relevant psychiatric or psychological conditions’, which might impact on his suitability to hold a licence. On 4 September 2018, he elaborated his reasons stating that he was not satisfied under s 25(1)(a) of the Act that it was in the interest of the public for WUT to hold a licence nor satisfied under s 25(2)(a), WUT was a fit and proper person. Pinner letter stated in part:

My decision was based on my belief that you have failed to declare treatment for relevant psychiatric or psychological conditions, and such conditions may impact on your suitability to hold a private security licence …
… I formed the beliefs that you:
a. have not advised the Chief Commissioner of relevant psychiatric or psychological conditions;
b. may have a mental health condition that may impact on your suitability to hold a private security licence; and
c. that you have not provided any medical evidence that would satisfy my concerns…

I am satisfied that the conduct referred to [in the letter] demonstrates a lack of trustworthiness and integrity sufficient to be satisfied that you are not a fit and proper person to hold a private security licence nor is it in the public interest that you do so.[20]

[20]WUT v Victoria Police (n 2) [119].

In the letter, Pinner referred to the drug screen of 2011, the Peninsula Drug and Alcohol report of 2014, WUT’s previous applications and renewal applications and the Personal Information Form where WUT had failed to declare treatment for relevant psychiatric or psychological conditions. He also referred to email correspondence with Detective Senior Constable McGuire which was voluminous, threatening and irrational, the complaint from the former accountant and his wife and intervention orders made naming them as the protected persons.

WUT said that Pinner had made his decision almost a month before the deadline for his submissions after he had given notice to Pinner that he was still obtaining evidence a psychologist’s assessment.[21] WUT’s appeal grounds include that the Tribunal did not examine the original decision and the defects in its making.
[21]Ibid [120]-[121].

Legislation

Section 25 of the Act is the main statutory provision and it states:

25Circumstances in which the Chief Commissioner must refuse to grant a private security individual operator licence
(1) The Chief Commissioner must not grant a private security individual operator licence if—
(a) he or she is satisfied that the granting of the licence is not in the public interest; or
(b) he or she is not satisfied that the applicant meets the probity requirements set out in subsection (2); or
(c) he or she is not satisfied that the applicant meets the competency requirement set out in subsection (3).

(2) For the purposes of subsection (1)(b) the probity requirements are that the person—
(a) is fit and proper; and
(b) is aged 18 years or more; and
(c) has not contravened or failed to comply with any provision of this Act, the regulations or any corresponding previous enactment, to the extent that warrants the refusal of the licence; and
(d) is not a prohibited person; and
(e) is not a person in relation to whom—
(i) not more than 10 years have expired since that person was convicted of any offence that in the opinion of the Chief Commissioner would render the person unsuitable to hold a private security licence; or
(ii)not more than 5 years have expired since that person has been found guilty (without a conviction being recorded) of any offence that in the opinion of the Chief Commissioner would render the person unsuitable to hold a private security licence; and

(f) is not a person who is charged with—
(i) any offence that in the opinion of the Chief Commissioner would render the person unsuitable to hold a private security licence; or
(ii)a disqualifying offence.

(3)For the purposes of subsection (1)(c), the competency requirement is that the person has successfully completed any approved training requirements or has the experience or training approved by the Chief Commissioner as relevant to each activity or any aspect of each such activity that the person is authorised to carry on under the licence.

The purposes of the Act are contained in s 1 and include:

The purposes of this Act are—
(a) to provide for the licensing and registration of certain participants in the private security industry; and
(b) to otherwise regulate the private security industry for the purposes of ensuring public safety and peace; and
…

Section 37 requires the Chief Commissioner not to renew a licence unless satisfied that the applicant satisfies any relevant criteria set out in s 25 of the Act.

WUT’s application to the Tribunal

In August 2018, WUT applied to the Tribunal for review of the Chief Commissioner’s decision made by his delegate. The Tribunal heard his application for three days in March 2019. WUT gave evidence as did Pinner, who was the only witness called by Victoria Police. WUT called witnesses to support his competence and character. It was clear from their evidence that he had assisted a people who had been victims of cybercrime and that a number of people held him in high regard.

The Tribunal’s decision

On 22 July 2019, the Deputy President affirmed the Commissioner’s decision to refuse to renew WUT’s licence (‘Tribunal Decision’).

The Deputy President found in favour of WUT on the competency requirements required by s 25(1)(a) stating:

WUT is an expert in cyber security, demonstrated by the references and testimonials bearing witness to the high quality work he has provided to numerous clients. Whilst some doubt has been raised concerning some of his claimed qualifications, particularly with respect to University, that does not detract from the positive evidence in this respect. Therefore, concerning s 25(1)(c) and 25(3) of the Act I am satisfied WUT meets the competency requirements.[22]

[22]Ibid [223].

But, the Deputy President was not satisfied that WUT met the probity requirements of s 25(2)(a) and was not satisfied that he was a fit and proper person to hold a licence. He wrote:

The multiple strong testimonies as to the services WUT has provided to the authors of those testimonies speaks well to his character and supports WUT’s submissions that he meets the probity requirement in the Act.
However, being fit and proper is not only a matter of character and conduct when not in conflict with a given person. Crucially, judgement must be formed about the character and conduct of the person who finds him or herself in conflict with another. This is particularly important concerning probity with respect to a person seeking a PSIOL, where it can be assumed conflict may commonly occur.
In my view, the evidence in this case overwhelmingly demonstrates WUT’s character to be lacking and conduct to be unacceptable.[23]

[23]Ibid [226]-[228].

The Deputy President next dealt with the public interest requirement contained in s 25(1)(a) and stated that he was ‘satisfied that the granting of the licence WUT seeks is not in the public interest’.[24] He explained:

I have considered whether the strong evidence in support WUT’s valuable work in cyber security justifies concluding that in the context of regarding WUT as not meeting the probity criterion, this separate criterion of public interest was satisfied.
I am not so satisfied. The s 25 criteria are interrelated, particularly the fit and proper criterion and the public interest criterion. It would be unusual that a person regarded as not fit and proper to hold a PSIOL would be regarded as a person where it would be in the public interest that the licence be granted.
It is not in the public interest that a person capable of the unacceptable conduct described above be entrusted with a PSIOL.
It is also not in the public interest to, by licensing WUT, in effect give permission for individuals to engage in the unacceptable conduct described above.
Such permission would undermine the ability of regulators of occupations, and others discharging governmental functions, to effectively deal with unacceptable conduct towards them.[25]

[24]Ibid [251].

[25]Ibid [252]-[256].

In summary, while the Deputy President was satisfied that WUT met the competency requirements, he was not satisfied that he met the probity requirements of s 25(1)(b) because he was not satisfied that he was a fit and proper person to hold a licence and was not satisfied that the granting of the licence was in the public interest as required by s 25(1)(a) because of his unacceptable conduct.[26] While he accepted that WUT’s skills would be valuable to the community, the issue of his lack of probity outweighed that benefit.[27]
[26]Ibid [224], [251]-[256].
[27]Ibid [224]-[267].

The Deputy President’s reasons for not being satisfied that WUT was a fit and proper person to hold a licence were in summary as follows. He considered that WUT’s conduct in situations of conflict was unacceptable. He described the evidence concerning a conflict between WUT and his former accountant and his wife as ‘chilling’.[28] He also considered evidence of WUT’s correspondence to members of Victoria Police and a member of the Tribunal, as weighing against the grant of a licence. He found that WUT was not truthful about previous treatment for mental illness and that he had failed to obtain a ‘fulsome medical report from another medical practitioner’.
[28]Ibid [238].

The Deputy President gave six reasons for his conclusions and the first three concerned disclosure of mental health issues.[29]
[29]Ibid [229]-[250].

First, the Deputy President did not regard WUT as truthful in his statements that he had not received psychiatric or psychological treatment and found that it was more likely than not that he had suffered a mental illness and been treated for it, for more than the very short duration he claimed.[30] He relied on the 2011 clinical notes, the 2014 Peninsula report, WUT’s 2015 statutory declaration and the views taken of his mental capacity ‘given the nature of some of his correspondence’ and observations of the accountant and ‘recounting by the accountant’s wife of the telephone call from WUT’s mother’.[31] He also said that WUT’s continuing denials ‘in the face of the variety of evidence’ caused concern’.[32]
[30]Ibid [229].
[31]Ibid [230].
[32]Ibid [231].

Secondly, the Deputy President referred to WUT’s unacceptable ongoing refusal to cause Dr L, his general practitioner, or another medical practitioner, to provide a ‘fulsome report’ to clarify whether he had been treated for psychiatric or psychological problems.[33] He considered that Dr L’s statement that was in evidence may have been made in the context that mental illness had been or was being appropriately treated. In addition, the report of the psychologist, Dr Gurtman, had no weight. It was not prepared for the proceeding and contained the ‘surprising statement’, ‘given the evidence in this case’ that WUT was an ‘unassertive person who has difficulty standing up for himself’.
[33]Ibid [232].

Thirdly, the Deputy President considered that the evidence demonstrated that WUT, when it suited him, had not been truthful as to past events, including his claims that Peninsula Health had corrected its 2014 report about him, when it had only placed a note on it, recording his assertion that it was inaccurate. Also his claim that no government department apart from Victoria Police had a problem with him was untrue because of the circumstances in which he ceased to be a Justice of the Peace.[34]
[34]Ibid [235].

Fourth, the Deputy President considered that doubt was raised as to WUT’s claimed qualification from Charles Sturt University and stated that:

[G]iven the letter from the University advising it had no record of him having obtained such qualifications. A copy of the University’s letter was provided to WUT well before the hearing of this case. Beyond describing the challenge to his qualifications as ridiculous, I am not aware of any evidence where he seeks to confirm his qualifications.[35]

[35]Ibid [236].

Fifthly, the Deputy President found that with respect to at least some people, not within government, with whom WUT found himself in conflict or of whom he was critical, he engaged in unacceptable conduct. These people included his former accountant and his wife. He also referred to WUT’s action in sending an email to another Tribunal Member, who had heard a proceeding in which WUT was a party.[36]
[36]Ibid [237]-[238].

Sixthly, he found that WUT had the propensity to act unacceptably and had so acted towards some people working within government with whom he found himself in conflict.[37] He concluded that it was not in the public interest by licensing WUT, to, in effect, give permission for individuals to engage in such unacceptable conduct. To do so would undermine the ability of regulators and others discharging governmental functions to deal effectively with unacceptable conduct towards them.
[37]Ibid [239].

The mental health issue

The first three findings listed above concerned whether WUT had been truthful in statements and disclosures about his mental health or treatment that he had received. Many of WUT’s arguments in this Court concerned these issues and whether the Deputy President’s findings were supported by evidence. He also raised the issue of whether the information that Victoria Police had sought in the licence renewal form about his mental health had been sought in breach of discrimination legislation.

The Deputy President described the relevance of the mental health issues as follows:

Relevance of mental health to this decision
While these reasons address evidence concerning whether or not WUT has received treatment for any mental health condition, Victoria Police does not submit, and this is not a case which suggests, that a person suffering a mental health condition may not obtain a private security individual operator licence (PSIOL).
The issue of mental health here is whether WUT’s character is in question on the basis that he falsely declared a lack of treatment for mental health issues and, to a lesser extent, given concerns about WUT’s mental health as evidenced in his conduct, or with reference to his conduct alone, it is not in the public interest for him to hold a PSIOL.[38]

[38]Ibid [9]-[10].

The Deputy President described the issue about WUT’s health as whether contrary to his 2009 licence application declaration, and/or statements in later applications, there was evidence that he had been treated for psychiatric or psychological problems.[39]
[39]Ibid [27].

The Deputy President’s findings about WUT’s mental health were particularly based on the results of a drug screen, a drug drive assessment and the contents of his 2015 statutory declaration. I next set out the relevant passages in the Deputy President’s reasons recorded under headings that I have added:

Drug screen 31 October 2011
In December 2012, WUT pled guilty before the Magistrates Court of Victoria to the charge of, in 2011, Refusing to Undergo A Roadside Drug Assessment. The Court found him guilty, without conviction, fined him $650 and cancelled his driver’s licence for two years.
It appears that related to this incident, WUT’s general medical practitioner, Dr L, referred him for a drug screen which was undertaken on 31 October 2011. While WUT tested negative for relevant drugs, the Report commented:
Clinical Notes: On prescribed medications – Seroquel, Alprazolam

Seroquel is a medication used to treat mental illnesses such as schizophrenia, bipolar disorder and sudden episodes of mania or depression associated with bipolar disorder. Alprazolam is a medication which belongs to a group of medicines called benzodiazepines. It is used for short-term relief of anxiety or for treatment of panic disorders.[40]
…
WUT says he told the truth in each of his applications. He described being prescribed Seroquel and Alprazolam as two options intended to address the side-effects of another medication, Duramine. He took this related to a surgical. He said that while he once filled a prescription for Seroquel, he heard it was a “really hard drug” in terms of its sedative effect and so he never took it. He described taking quarter tablets of Alprazolam for about a year.
Concerning this, he had also written that the medications were temporary, prescribed to address extreme extenuating personal circumstances of the time, which he had not had prescribed for him or taken since then.
[40]Ibid [24]-[26].
Drug assessment November 2014
It appears that as part of the process of regaining his driver’s licence, in November 2014 WUT undertook an assessment by the Peninsula Drug and Alcohol Program.
A 12 November 2014 First Drug Drive Assessment Summary from the Program said in part:
[WUT] reports that he is currently prescribed 10 Valium daily in which he is taking as prescribed. [WUT] states also prescribed antidepressants and is also taking these as prescribed.

This again raised the issue as to whether WUT had been truthful in his 2009 statement about treatment for psychiatric or psychological problems.
WUT’s evidence is that the above statement was an error by the Report’s author. He said he could not remember whether the Report (which appears favourable to him as it reports an absence of drug and alcohol use) was used when he appeared before the Magistrates’ Court of Victoria.
WUT had stated in this proceeding that this incorrect statement was “corrected by an FOI request”. In cross-examination, Counsel put to WUT that this statement was rubbish and inaccurate and that WUT will say anything that advantages him. WUT responded that only Victoria Police has a problem with him and Peninsula Health did the only thing it could concerning the Report, which was to, under the Freedom of Information Act 1982, put a note in the record of WUT’s views.[41]

[41]Ibid [28]-[34].

The Deputy President also referred to WUT’s statutory declaration of 10 February 2015 in which he gave his version of the traffic incident in 2011 and its aftermath. WUT said that due to the experience of the traffic incident he was put on Valium to release my pain and suffering.

The doctors’ letters

The Deputy President also referred to medical evidence about WUT; first of all to letters from his general practitioner, Dr L, in the following passage:

Concerning evidence of his psychiatric and psychological good health, WUT referred to a letter from Dr L dated 9 February 2015 which said:
This is to certify that [WUT] has worked as a computer forensic private investigator. I do not see any medical reason that he cannot work as an investigator using his lifetime knowledge of computer skills.

In an 18 February 2016 letter, Dr L wrote:
I am aware of [WUT’s] medical history over 30 years. This is to Certify that [WUT] has worked as a computer forensic private investigator. I do not see any medical reason that he cannot work as an investigator using his extensive range of skills that he has developed over many years, in my professional opinion, he is a fit & proper person to hold a private security licence and suitable to work in the Private Security industry.

Dr Gurtman is a Consultant Clinical and Forensic Psychologist. He administered psychological tests to WUT on 21 November 2018 and then provided a report although he never met him. The report stated that WUT’s scores suggested no indication of clinical psychopathology and that his ‘self-concept appears to involve a generally stable and positive self-evaluation’.[42]
[42]WUT v Victoria Police (n 2) [144].

WUT said the above opinions had previously satisfied Victoria Police as to his mental health. He did not provide a further report from Dr L nor call him to give evidence. When asked why he had not obtained a further report, WUT replied it was ‘none of your business’.

The Deputy President noted that in a letter to Victoria Police of 30 April 2018, WUT wrote:
The medications I disclosed were temporary and I am no longer on about 1/5^th of the medication that I was back then for the treatment of depression which does not affect my job, and never did, and satisfied the case last time.
I am certainly not on any Seroquel or any other form of medication (which my doctor submitted an affidavit of) in which all medications that were advised are either now are non-existent or at a fraction of about 1/5^th of what they used to be.
The Deputy President stated that from at least April 2018, WUT knew he had the option of causing a medical practitioner, perhaps Dr L, to give a comprehensive overview which would address concerns reasonably raised concerning his mental health, based on the evidence available to LRD as described above. He did not, but went on and continued in attack mode via correspondence, with his 30 April 2018 letter, which is referred to above, being a representative example.[43] Under s 23 of the Act, WUT was obliged to provide information requested.
[43]Ibid [243].

On 4 February 2019, a solicitor for Victoria Police informed WUT that the Chief Commissioner required the attendance of Dr Gurtman at the hearing for the purpose of cross examination and, if he was not made available, reliance upon his report would be objected to.[44] Dr Gurtman did not appear, although he sent a letter of explanation that I later refer to.
[44]CB 805.

The conduct issue

The other significant finding made by the Deputy President concerned WUT’s behaviour when in situations of conflict with other persons. He dealt with this in his fourth, fifth and sixth findings. The Deputy President found that with some people with whom WUT was in conflict or of whom he was critical, he engaged in unacceptable conduct. I will next refer to the Deputy President’s discussion and findings about that evidence.

WUT’s conflict with his former accountant and his wife

The Deputy President referred to the written statement of WUT’s former accountant and his wife of their dealings with WUT; their need to obtain an interim Personal Safety Intervention Order (‘PSIO’) against him; WUT’s travel on the same flight to Sydney as the accountant’s wife; and, his leaving a bag or bags of coins totalling $3100 in payment of a Tribunal costs order outside the front door of the accountant’s home.

The Deputy President stated:

The evidence concerning his conduct towards the accountant and wife is, as a whole, chilling. The Magistrates’ Court saw it as sufficient to make an interim PSIO. WUT’s statements that he consented to the order, for practical reasons without making admissions, does not detract from the evidence given. The fact that the accountant and wife were not called to give evidence in this case is understandable. While the weight of the evidence is therefore somewhat less than would have been, it remains significant. I reject WUT’s evidence and submissions that they are vexatious litigants. This is contradicted by the accountant successfully defending the application against him by WUT in the VCAT Civil Claims List. WUT admits to depositing bags of coins at their front door, apparently only to retrieve them to appease the local police. He does not provide specific denials to much of what is alleged. While he describes being on the same return flight to Melbourne as coincidence, he provides no documentary evidence in support. That said, my view concerning his conduct towards the accountant and wife does not turn on the return flight issue.[45]

[45]WUT v Victoria Police (n 2) [238].

The Deputy President set out a number of other matters alleged in the statements of the accountant and his wife, but the passage from his reasons that I have set out in the last paragraph contains the matters that he appears to have taken into account. He did state that his view of WUT’s conduct did not turn on the return flight issue. The Deputy President noted that WUT dismissed the wife’s allegation saying it was coincidence that they were on the same flight from Sydney to Melbourne. He noted that in August 2016, the accountant and wife obtained interim PSIOs against WUT which expired on 30 April 2017.

The Deputy President recorded that WUT described the former accountant and his wife as vexatious saying their statements were untrue, at one point saying, ‘their statements do not mean anything’. Concerning the PSIOs, WUT said he acted on legal advice to consent to the orders without making admissions, in circumstances where the hearing date for a contested PSIO application would occur after the expiration of an interim order. WUT described there being no findings against him or admissions by him. He described the inclusion of the PSIOs as evidence in this case as an attempt by Victoria Police to deceive the Tribunal.[46]
[46]Ibid [87].

WUT’s correspondence with Victoria Police

The Deputy President found that WUT’s correspondence with Victoria Police (Tas, Pinner [243] and McGuire [241]) was at times within the bounds of strident criticism, but at other times went into abuse and harassment. He considered the four emails sent within an hour on 21 December 2015, which have been referred to above, as particularly striking.[47] He found that WUT’s written attacks on Tas and Pinner went well beyond reasonable complaint and were unreasonable and harassing.
[47]Ibid [241].

Email to Tribunal Member

The Deputy President found that after Pinner made his decision to refuse to renew WUT’s licence, he learnt that, in August 2018, WUT was arrested for the offence of using a Carriage Service to Offend after he allegedly made a threat, by email, to a Tribunal Member after she decided his case against a businessperson for unpaid fees for services that he provided. That businessperson is Witness C in this case. In fact he was called by WUT as a character witness and spoke well of him. The Deputy President described the evidence concerning the email to the Tribunal Member in the following passage:

The VCAT member’s statement speaks of learning of the email, being aware of WUT’s multiple complaints to VCAT about members’ decisions, including about a decision of the member, with him alleging negligence and malice. These emails did not cause the member personal concern. The member understood that the email in question this was the first time WUT had made threats against a VCAT member. The member had no reason to doubt it was from WUT. The member’s statement speaks of the email causing fear for personal safety and/or as to actions he might take online to cause harm. It is unnecessary to here quote the offensive text contained in the email.[48]
[48]Ibid [128].

WUT’s conduct towards Victoria Police’s solicitor

The Deputy President referred to WUT’s correspondence with Victoria Police’s solicitor which he described as ‘unwarranted and unreasonable’[49] and his conduct in the hearing towards Pinner and counsel for Victoria Police, which he described as ‘accusatory and unreasonable’.[50] The Deputy President also stated:

In February 2019, Pinner received a copy of an email WUT had sent to a Victoria Police solicitor who has been party to the matter involving WUT’s and LRD’s refusal to renew his PSIOL.
An email from the solicitor dated 4 February 2019 (16:24) to WUT conveyed, in unremarkable terms, the solicitor’s instructions concerning Dr Gurtman’s evidence in this proceeding.[51]

[49]Ibid [247].

[50]Ibid [248].

[51]Ibid [147]-[148].

The Deputy President quoted from a 6 February 2019 (12:02) email, in which WUT wrote to the solicitor:

You have provided false information in order to intimidate and influence a nonlawyer and abuse your position as a practising lawyer in the State of Victoria
…
Like your client, scare tactics, guessing games, and breaches of law are only going to take your ‘career’ to one place when you attack me stop I hereby state the following:
…
1.Your recent threats demonstrate you have and intend to act unethically and unlawfully and in breach of the Legal Profession Uniform Law, specifically your suitability to practice and fit and proper person status is question; …
4. … Constitutes professional misconduct, whether occurring in connection with the practice of law or otherwise, if it would, if established justify a finding that the practitioner is not a fit and proper person to engage in legal practice; …
5.… I intend to include you in my claim for unlawful discrimination against the dishonourable Mr Pinner when such time occurs.

For now the conduct of this case is with the Tribunal.[52]

[52]Ibid [149] (ellipses in original).

The Deputy President said that WUT gave evidence that in his opinion this solicitor threatened him and purported to be a Tribunal Member. WUT justified some of his strongly worded emails as ‘freedom of expression’.[53]
[53]T 48.

Other findings by the Tribunal

The Deputy President also considered that he could not assume that WUT’s type of conduct which he had identified would not occur in the future if he were licenced. He also found that WUT had not demonstrated that he was of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further enquiry as a person to be entrusted with the sort of work which the licence entailed.[54]
[54]WUT v Victoria Police (n 2) [249]-[250].

WUT’s Supreme Court proceeding

WUT applied to this Court for leave to appeal the Tribunal’s orders on questions of law pursuant to s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’).[55] His application for leave to appeal and the arguments in respect of the appeal if leave were granted were heard at the same time.
[55]Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148(1) (‘VCAT Act’).

WUT raised 27 questions of law and related grounds of appeal. An appeal from the orders of the Tribunal cannot challenge the merits of its decision, but is confined to questions of law.

Many of the questions of law and grounds of appeal were challenges to the Tribunal’s findings of fact. The respondent submitted that they were not questions of law, but questions of fact. The limit of the Court’s role in considering such challenges was described by the High Court in Australian Broadcasting Tribunal v Bond (‘Bond’), in these terms:

… in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law. … [However], want of logic is not synonymous with error of law. So long as there is some basis for an inference—in other words, the particular inference is reasonably open—even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.[56]

[56](1990) 170 CLR 321, 355-6 (‘Bond’) (citations omitted).

An appeal to this Court from a tribunal’s fact finding is ‘narrowly available’[57] and will ‘rarely succeed’.[58] The appeal must establish that:

there was either no evidence to support the impugned finding or that the finding was not reasonably open.[59]
[57]Myers v Medical Practitioners Board of Victoria (2007) 18 VR 48, 58 [37].
[58]Jetstar Airways Pty Ltd v Free [2008] VSC 539, [141].
[59]Hoser v Department of Sustainability and Environment [2014] VSCA 206 [29].

WUT’s questions of law and grounds of appeal

I will next consider WUT’s questions of law and the grounds of appeal associated with each question, to which I will refer as ‘the grounds’. Most of the questions and the grounds contain some challenge to the Tribunal’s findings of fact, so there is a question whether, at least in that respect, they give rise to questions of law. The first group raises issues of statutory construction.

The public interest and fit and proper person – statutory construction questions

In questions 1 and 2, WUT argued that the Tribunal erred in construing the ‘public interest’ requirement (s 25(1)(a)) when it decided that it would be against the public interest to grant him a licence given his valuable work and expertise in cyber security. He also contended that the Tribunal took into account irrelevant considerations in determining that he suffered from a psychiatric or psychological condition and in determining that he had been dishonest in answering that question on the renewal and application forms when there was no proof of such dishonesty.

Question 12 dealt with adequacy of the Tribunal’s reasons, but the grounds challenge the construction of the term ‘public interest’, so I will consider them as grounds supporting questions 1 and 2. The grounds are:

[T]he VCAT erred in its construction of ‘public interest’ under s 25(1)(a) of the PS Act in focusing on the risk and detriment posed by the appellant to the public rather than on:
(a) the general public interest in a person such as the appellant holding a private security individual operator licence;
(b) the position of trust and authority held by persons with private security individual operator licences and the high standards of behaviour expected by the public; and
(c) the need for public confidence in the character and reputation of private security individual operators.
(d)disqualifying “convictions” the Respondent must consider and their weight under the PS Act;
(e)human rights (including the right to be treated equally before the law, and the right to take part in public life without discrimination);
(f)the case law surrounding the “fit and proper” test and weight from similar decisions under the same enactment;
(g) the fact that the statutory provision under the Act requires a direct relationship to the “provision of the services in question” – and the very application form specifies the intent of the Act requesting the answer to be backed by a medical practitioner, where it asks “In his/her professional opinion, your medical condition(s) do or do not prevent you from being a fit and proper person to hold a private security licence for the security activities being renewed”, of which the appellant satisfied five years ago to the delegate’s satisfaction with no change to evidence upon this latest renewal and re-satisfied this question.
(h) the fact that the appellant sought to renew his licence with the Tribunal finding and the Respondent accepting that the appellant services were in absolute good standing with the public for almost ten years without one valid complaint under the Act?[60]

[60]CB 822-23 (emphasis omitted).

Question 3 asked: did the Tribunal err in law in its construction of a statutory provision when considering whether WUT was a ‘fit and proper person’ pursuant to s 25(2)(a) of the Act? The grounds are that the Tribunal erred in its construction of that term in failing to consider all of the evidence tendered by WUT including Exhibits A to O and the evidence of his character. I will deal with Exhibits A to O separately.

Question 23 asked: did the Tribunal err in not consistently applying the originating enactment definition of a fit and proper person, case law under the same Act, and the breadth of prescribed disqualifying offences in ‘guessing’ the appellant is not a fit and proper person to hold a licence when it has been determined by the Tribunal and on appeal that a convicted paedophile is?[61]
[61]Ibid 818.

Deputy President’s reasons on the statutory construction issues

The Deputy President said that the ‘s 25 criteria are interrelated, particularly the fit and proper criterion and the public interest criterion’.[62] He quoted the High Court’s decision in Bond first from the judgment of Mason CJ as follows:

… the statutory concept of ‘fit and proper person to hold the licence’, which is undefined, takes account of qualities and characteristics of the licensee apart from the matters mentioned in [the Act] … the concept should not be narrowly construed or confined. It must extend to any aspect of fitness and propriety that is relevant to the public interest …[63]

[62]WUT v Victoria Police (n 2) [253].

[63]Bond (n 56) 348.

He also referred to the statement of Toohey and Gaudron JJ that:

The expression ‘fit and proper person’, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of ‘fit and proper’ cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.[64]

[64]Ibid 380.

So far as the statutory term the ‘public interest’ is concerned, the High Court has said:

The term ‘in the public interest’ is of broad import. When used in a statute, the term classically imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statute in question.[65]

[65]ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140, 162 [20].

WUT submitted there was strong evidence that he had conducted himself appropriately in conflict situations and that the Deputy President was in error in concluding otherwise. He is a nationally accredited mediator,[66] a conflict resolution practitioner, a family dispute resolution practitioner[67] and a certified fraud examiner.[68] Therefore, he could deal with conflict. Although, the Deputy President took into consideration these qualifications, he gave them little to no weight.[69]
[66]T 5, 8-9.
[67]T 117.
[68]T 4, 8.
[69]WUT v Victoria Police (n 2) [177]-[178].

He said that the Deputy President did not look into things that he should have looked into, or advise him of the weight that might be given to evidence. He criticised the Deputy President for accepting unchallenged declarations from people, and this appeared particularly to be a reference to the former accountant and his wife.[70] He emphasised that a client has never complained about him.[71] He has never been diagnosed with any mental or psychological illness.[72]
[70]T 5.
[71]T 8.
[72]T 9.

In my opinion, there was no error in the Deputy President’s construction of the terms ‘public interest’ and ‘fit and proper person’. The considerations relevant to those two terms overlapped. He considered the breadth of the terms, but also noted that ‘the personal characteristics called for in a person undertaking an occupation which requires registration’ may be relevant.[73]
[73]Ibid [17].

An assessment of whether a licence applicant is a ‘fit and proper person’ involves a wide range of considerations that focus on the requirements of proper behaviour of a person acting as a licensed investigator.[74]
[74]See Azadzoi v Chief Commissioner of Police [2010] VCAT 1329.

WUT referred to examples when similar licences had been granted to persons with convictions for grave offences.[75] He argued that to refuse to renew his licence because he had not disclosed a mental illness, even if he suffered from one, or because of his problems in conflict situations, would be excessive. He has only ever pleaded guilty to, and was found guilty without conviction of, a charge of refusing to undergo a roadside drug assessment and at worst he accidentally failed to tick the correct box on his licence application form.[76]
[75]See Kahan v Strauss [2017] VSC 8; Doggett v Chief Commissioner of Police [2019] VCAT 1198.
[76]T 34, 74.

But each case turns on its facts and, on the Deputy President’s findings, WUT has a propensity to be untruthful when it suits him,[77] and to act unacceptably towards people with whom he is in conflict.[78] WUT intends to use the licence to work as an investigator, which may involve seeking information as to the personal character or actions of persons or businesses or seeking missing persons.[79] Such work is likely to lead him on occasion into situations of conflict.
[77]WUT v Victoria Police (n 2) [235].
[78]Ibid [239].
[79]Private Security Act 2004 s 3 (definition of ‘investigator’).

As previously mentioned, mental health issues said to concern WUT played a significant part in the Tribunal hearing and the Deputy President made clear that these issues went to WUT’s probity.[80] WUT’s case was that he had never been diagnosed with a mental illness and that the Deputy President wrongly concluded that he had actively misled the Chief Commissioner when he did not disclose a mental illness in his licence renewal form.[81] The Deputy President considered that WUT’s non-disclosure of a mental illness weighed against him meeting the probity requirement of the Act.[82] He found that WUT’s ‘probably false’ statements on this issue in 2009, 2014, 2016 and/or 2018 would not of themselves justify refusing him a licence, but his ‘continuing denials, in the face of the variety of evidence’ caused him concern.[83] As previously mentioned, the Deputy President relied on the details of the 2011 drug screen report; the 2014 report; WUT’s 2015 statutory declaration; views taken, not by medical practitioners, concerning his mental capacity given the nature of some of his correspondence; and observations of the accountant and the statement by the accountant’s wife about the telephone call from WUT’s mother. He did not accept WUT’s explanation that he had taken medication for short-term depression and to counteract the effects of surgery.
[80]See WUT v Victoria Police (n 2) [231].
[81]T 10.
[82]WUT v Victoria Police (n 2) [228]-[231].
[83]Ibid [231].

The Deputy President considered the favourable testimonies about WUT stating:

The multiple strong testimonies as to the services WUT has provided to the authors of those testimonies speaks well to his character and supports WUT’s submissions that he meets the probity requirement in the Act.[84]

[84]WUT v Victoria Police (n 2) [226].

However, he said:

… being fit and proper is not only a matter of character and conduct when not in conflict with a given person. Crucially, judgement must be formed about the character and conduct of the person who finds him or herself in conflict with another. This is particularly important concerning probity with respect to a person seeking a PSIOL, where it can be assumed conflict may commonly occur.
In my view, the evidence in this case overwhelmingly demonstrates WUT’s character to be lacking and conduct to be unacceptable.[85]

[85]Ibid [227]-[228].

These were findings of fact that were open to the Deputy President on the evidence, which included WUT’s oral evidence. He was entitled to conclude that his finding that WUT ‘falsely declared a lack of treatment for mental health issues’,[86] was relevant to whether WUT had satisfied the public interest requirement.[87]
[86]Ibid [10].
[87]Cf Bowland v Victoria Police (Review and Regulation) [2015] VCAT 1259.

In my opinion, it was also well open to the Deputy President to consider that evidence of WUT’s conduct in conflict situations was relevant to whether it was in the public interest to renew his licence and whether he satisfied the fit and proper person requirement. His findings on these matters were findings of fact.

The grant or renewal of a licence to perform a regulated activity may be affected by the disclosure or non-disclosure of relevant information – the willingness of the applicant to disclose facts about themselves that may be relevant to their application. Probity, honesty, integrity and trustworthiness are significant elements in decisions on whether to grant a licence.[88] Thus in TLP v Chief Commissioner of Police (Review and Regulation),[89] Garde P considered that the probity requirement required:

[T]he applicant to demonstrate that he is of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails.[90]

[88]See the Tribunal’s approach to these issues in Azadzoi v Chief Commissioner of Police [2010] VCAT 1329, [28]-[30] and Expetito v Victoria Police [2013] VCAT 739, [14].

[89][2014] VCAT 429.

[90]Ibid [58] citing Sobey v Commercial Agents Board [1979] 22 SASR 70, 76.

A failure to disclose facts, particularly in response to direct questions is evidence of lack of honesty, integrity and trustworthiness.[91]
[91]See, eg, Siguenza v Secretary to the Department of Infrastructure [2002] VSC 46; Re Davis (1947) 75 CLR 409.

The duties of a private investigator or security agent may put them in conflict situations. The purposes of the Act include to regulate the private security industry for the purpose of ensuring public safety and peace[92] and the ability of a licensee to conduct themselves appropriately in conflict situations is relevant to achieving that purpose.
[92]Private Security Act 2004 s 1(b).

The Deputy President’s reasons make clear that he considered that the evidence established that WUT was unable to conduct himself properly in conflict situations.

In my opinion, the Deputy President did not err in his construction of the public interest requirement contained in s 25(1)(a) or the probity requirement in s 25(1)(b) of the Act. As mentioned, the considerations relevant to those requirements overlapped.

Conclusion to questions of law 1, 2, 3, 12 and 23

WUT has not established that the Deputy President erred in the manner contended in questions of law 1, 2, 3, 12 and 23 or their grounds. The Deputy President’s construction of the public interest and the probity grounds contained no error, and he made findings based on all the evidence before him, as he was obliged to do.

As mentioned, the Deputy President provided extensive reasons for his conclusion that WUT was not a fit and proper person to hold a licence. To summarise, he considered that while in situations without conflict, WUT conducted himself well, but when faced with conflict, the evidence ‘overwhelmingly demonstrates WUT’s character to be lacking and conduct to be unacceptable[93] … with respect to a person seeking a [licence], where it can be assumed conflict may commonly occur’.[94] He also found that WUT had not been truthful about some past events when it suited him. It seems clear that it was a combination of factors, rather than one factor, that led the Deputy President to his decision and that WUT’s conduct and form of communication when in conflict were particularly important.
[93]WUT v Victoria Police (n 2) [228].
[94]Ibid [227].

Relevant and irrelevant considerations

WUT’s questions of law 2 (which contains issues of statutory construction and irrelevant considerations), 4, 8, 10 and 11 contain contentions that the Deputy President erred by taking into account irrelevant considerations and by failing to take relevant considerations into account. The irrelevant considerations were WUT’s answers to ‘on the spot’ prejudicial questions. Next WUT contended that the Deputy President wrongly took into account that he had a mental illness, which he said was unlawful discrimination. I consider this argument below along with other grounds concerning discrimination.

The relevant considerations were evidence of from two doctors, Dr L and Dr Gurtman, documents that WUT tendered – Exhibits A to O, which are considered below and ‘multiple errors of law’ including allowing ‘on the spot’ new evidence, ‘constantly inundating and railroading [WUT] without notice or opportunity to defend, contrary to an undertaking at the directions hearing limiting the respondent’s evidence, the reasons for decision given to [WUT] originally, the s 46 and 49 statement’. The issue of ‘on the spot new evidence’ is best considered in conjunction with WUT’s natural justice grounds which occurs later in this judgment.

Relevant and irrelevant considerations – Legal principles

A tribunal does not err in law by taking into account a consideration in making a decision unless the statute under which the decision is being made expressly forbids such matters from being taken into account.[95] Where relevant considerations are not listed in the statute, they are identified from its subject matter, scope and purpose.[96]
[95]Sinclair v Tripodis Constructions Pty Ltd [2013] VSC 722, [21].
[96]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 40 (‘Peko-Wallsend’).

For ease of reference, I will repeat the relevant purposes stated in the Act:

(a)to provide for the licensing and registration of certain participants in the private security industry; and
(b)to otherwise regulate the private security industry for the purposes of ensuring public safety and peace.[97]

[97]Private Security Act 2004 s 1(a)-(b).

A wide range of facts and matters which might affect public safety and peace are relevant to licensing decisions under the Act. The significance to be attached to them or the weight to be given them is for the Tribunal to decide. The High Court in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (‘Peko-Wallsend’) emphasised that courts on appeal or review are not to substitute their own decision about the weight or the significance to be given to a particular consideration:

It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned.
It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power.[98]

[98]Peko-Wallsend (n 96) 40-1.

Therefore, WUT can only succeed on the questions of law and grounds concerning relevant considerations if he establishes that matters the Deputy President took into account were not relevant to his licence renewal application or that relevant matters that WUT relied on were not taken into account.[99]
[99]Ibid.

Relevant and irrelevant considerations grounds

Question 2, which I have previously considered as a statutory construction question, also raised considerations issues and asked: did the Tribunal take into account irrelevant considerations in considering whether it was in the ‘public interest’ to grant the respondent a licence? The grounds to question 2 alleged that the irrelevant considerations were:

(a) that ‘a person capable of the unacceptable conduct described above be entrusted with a PSIOL’ (at [253]) and

(b) that an assessment of whether it would be in the public interest that the licence be granted to [WUT] could not be separately undertaken (at [252], especially considering the finding that there was ‘strong evidence in support’ of [WUT’s] ‘valuable work in cyber security’ (at [251]).

Question 4 asks did the Tribunal take into account irrelevant considerations in considering whether [WUT] was a ‘fit and proper person’ pursuant to s 2 (2)(a) of the PS Act?

WUT contended that the Tribunal took into account the following irrelevant considerations: first, evidence of the accountant and his wife which he could not test it in cross examination and was unfairly prejudicial to him. Secondly, circumstances surrounding WUT’s status as a Justice of the Peace with the Tribunal not accepting that his appointment was revoked as a result of his retirement or resignation. Thirdly, the Tribunal’s doubt about WUT’s qualifications from Charles Sturt University, when he tendered a certificate concerning these qualifications on 20 March 2019. Fourthly, the nature of WUT’s correspondence with McGuire, Tas and Pinner, which the Tribunal said was abusive, unreasonable and harassing. Fifthly, the Deputy President’s finding that he sent an abusive email to a Tribunal Member who had heard a case in which he was the applicant. Sixthly, WUT’s interactions with Pinner and counsel for Victoria Police both in correspondence and to an extent during the Tribunal hearing were ‘accusatory and unreasonable’.[100]
[100]WUT v Victoria Police (n 2) [248].

I accept that the Deputy President did take the substance of each of these matters into account in passages that I have previously summarised. But, none of these matters was an irrelevant consideration for the reasons I now give.

Particular 1 – Evidence of the former accountant and his wife

WUT submitted that the evidence of the former accountant and his wife was unreliable, unable to be tested by cross examination and unfairly prejudicial to him. He said that the accountant’s statement should have been thrown out because he was not given the opportunity to cross-examine him or his wife.[101]
[101]T 37.

The former accountant and his wife obtained interim personal safety intervention orders against him, an order which he consented to. Their evidence in support of the order included that he had left bags of coins totalling $3,100, being the amount of a VCAT costs orders against him, outside their front door. He explained that he was angry and said ‘that’s the only thing I’ve ever done in that sense in my life.’[102] After discussions with police he removed the bags. He said in effect that he had sued the accountant in VCAT because he had charged him fees for taxation work to which he was not entitled because he had mismanaged it. VCAT had struck his case out after delays by the Australian Taxation Office in considering his liabilities, which in turn delayed his ability to present his case and he considered that this had been caused by the accountant.
[102]T 42.

His explanation for his consent to the intervention order was that it was a business decision[103] without findings or admissions of fact to avoid the delay that would occur before a contested hearing of the intervention order application could occur, which would be after the interim order had already expired.
[103]T 4.

The Deputy President’s task was to make findings about that evidence and give it the weight that he considered appropriate. His reasons, which I have previously described, demonstrate that he considered the reliability of the accountant and his wife’s evidence.[104] He considered their evidence as significant. He did take into account that WUT was unable to cross-examine them. He did not take into account all their evidence. Thus he said that his view of WUT’s conduct towards the accountant and his wife did not turn on the issue of WUT being on the same return flight to Sydney as the wife. He mentioned the fact that the Magistrates’ Court saw the evidence as sufficient to make an interim intervention order and WUT’s action in leaving the bags of coins at their front door.
[104]WUT v Victoria Police (n 2) [238].

Although the accountant and his wife did not give oral evidence and WUT could not cross examine them, it was not in dispute that he left the bags of coins as mentioned and removed them after police became involved. This was very inappropriate behaviour which WUT described as ‘a nasty thing’, which he regretted and done ‘because [he] was angry’,[105] although he said it did not reflect his usual behaviour. Then there was the fact that WUT consented to the making of an interim intervention order against him. Although WUT said that his consent was not an admission and was made because of the time it would take to obtain a court hearing, these were matters for the Deputy President to assess.
[105]T 42.

Particular 2 – WUT’s status as a Justice of the Peace

WUT submitted that the Deputy President’s finding that his appointment as a Justice of the Peace was revoked was an error as he had resigned from that office.[106]
[106]T 35.

The Deputy President found that WUT’s appointment had at one point been suspended but was restored after an investigation. With serious concerns continuing to be held about his suitability, he was again suspended, and a further investigation conducted. The Deputy President found that while WUT sent a letter of resignation days before his removal, it did not constitute a valid resignation. WUT was removed from office by notice published in the Government Gazette. The Deputy President found that, during the investigation, WUT sent a number of inappropriate, abusive, irrational and, in some cases, rambling correspondence to persons involved in or related to the investigation.[107]
[107]WUT v Victoria Police (n 2) [54], [240].

The Deputy President found that:

[WUT’s] claim that no other government department, apart from Victoria Police, has ever had a problem with him is untrue, as evidenced by the revocation of his governmental position. Whether or not he resigned the position makes no difference, the relevant department officers certainly had ‘problems with him’.[108]

[108]Ibid [235].

The significance of this issue for the Deputy President was not whether WUT resigned his appointment or whether it was revoked, but that, contrary to his evidence, he had had problems with other government departments.[109] This issue arose because in answers in cross-examination WUT said that every other government department found him to be a fit and proper person.
[109]See ibid [47]-[55], [235].

The Deputy President’s finding was relevant to the determination of both statutory requirements: the public interest; and the probity issue of fit and proper person. The evidence established that a statutory notice revoking WUT’s appointment was gazetted, whether or not he considered that he had also resigned.

Particular 3 – Charles Sturt University qualification

I have previously set out the Deputy President’s finding that ‘doubt is raised as to WUT’s claimed qualification from the University’ which was the fourth of sixth findings for his conclusion that WUT did not satisfy the statutory tests for the renewal of his licence. This finding was relevant to claims that WUT had not always told the truth, but also as to his conduct when this issue was raised with him. The claim was in an email from WUT and was that he held a qualification described as ‘Charles Sturt University, IT Masters, Computer Forensics’.[110]
[110]Ibid [113]; CB 670.

On 20 February 2019, Victoria Police emailed WUT attaching the University’s letter which said that it had no record of WUT obtaining qualifications from it. Victoria Police said that this evidence would be relied on in this case.

VCAT’s Fair Hearing Obligation Practice Notice includes that Tribunal Members have a responsibility to ensure that all parties receive a fair hearing. This means that Tribunal Members must ensure that each party is given a reasonable opportunity to present their case, to know the case to be advanced by the opposing party and to make submissions in opposition to that case. In the case of self-represented parties, the Member must determine the level of assistance a party may need. Whilst, in the circumstances of a particular case, a Member may be required to assist a party to identify relevant legal issues, it is not the Tribunal’s role to act as that party’s advocate or to provide legal advice.

WUT has not established that any of these steps was not taken. Nor did he establish that the respondent had breached the Victorian Model Litigant Guidelines. It is not clear how any breach of the Guidelines or counsel’s breach of the Professional Conduct Rules could establish a question of law or error affecting the Deputy President’s decision or order unless they also gave rise to a breach of the requirements of natural justice by him.

Particular 6 – Refused to grant a subpoena

Next, WUT submitted that through its Principal Registrar, the Tribunal refused to permit him to issue a subpoena to produce documents directed to Pinner. These documents concerned an investigation into WUT in 2015.

At the directions hearing, the Deputy President told WUT that the Principal Registrar had refused to issue the subpoena because:

Once you make an application to review a decision, essentially, in one sense, it clears the decks. This tribunal comes to the threshold issue, as it is when this tribunal holds a hearing. That’ll mean it’s the evidence is available at the time of the hearing from whatever source. The tribunal can, of course, advise itself as it seems fit. That’ll be on the law as it exists at the time of the hearing.[196]

[196]CB 49 [10]-[15].

The Deputy President explained to WUT that the Tribunal’s task was not to review complaints about the 2015 investigation, but that any such complaint might be pursued in the Supreme Court.[197]
[197]WUT v Victoria Police (n 2) [20].

The Principal Registrar had a discretion whether to issue the summons[198] and no challenge to his decision has been brought in this Court. In any event, during the Tribunal hearing, WUT cross-examined Pinner and did not request him to produce any documents about the 2015 investigation.[199]
[198]VCAT Act s 104(1).
[199]See CB 429-502.

Particular 5 (g) (particular 7) and question 21 Refused to permit WUT to make a s 78 application

WUT in ground particular 5 (g) and question 21 alleged that the Tribunal refused to permit him to file and have determined an application under s 75 of the VCAT Act to strike out some or all of Victoria Police’s evidence. In submissions, WUT said that he intended to rely on s 78, which deals with a party conducting a proceeding in a way that unnecessarily disadvantages another party.

WUT wished to strike out most of Victoria Police’s s 49 statement because it concerned an already decided application. He said that Victoria Police seemed to argue that because he had refused a drug test after a traffic incident, he could not have truthfully signed a renewal application declaring that he did not have a mental illness. They had excluded from the s 49 statement their investigation of him and deceived the Tribunal in stating that he had continuously avoided disclosing any mental illness.[200]
[200]T 25-6.

The Deputy President did not make any finding that Victoria Police was conducting the proceeding in a way that unnecessarily disadvantaged WUT. Instead, he explained that the Tribunal did not generally strike out evidence, but rather heard the evidence and gave it appropriate weight. In so indicating the procedure that he proposed to follow, he was exercising his discretion as to how best and most efficiently to hear WUT’s application.

WUT’s additional natural justice and procedural fairness arguments

WUT criticised the Deputy President said:

… one might find the tribunal is somewhat disinterested on that allegation …[201]

[201]CB 57.

There is no substance in WUT’s criticism of the Deputy President’s use of the word ‘disinterested’ in describing his attitude to WUT’s complaints against Victoria Police. The Deputy President clearly meant that it was not his task to enquire into WUT’s attacks on Victoria Police’s conduct towards him, if the issues raised did not relate to the issues that he had to decide. The transcript makes that clear.[202] This contention by WUT was one of a number that challenged the Deputy President’s failure to consider how Pinner made his decision. I have previously explained why that was not the Deputy President’s task, but that rather he was obliged to make a new decision.
[202]CB 57 [35].

WUT’s grounds in respect of question 19 do not raise any matter of substance. The first two concern Dr Gurtman’s evidence and the fact that he was available to attend on an alternative day. I have dealt with this issue previously. I noted that Dr Gurtman had not met WUT and did not consider that his oral evidence would add much. The third ground criticises evidence advanced by the respondent including the attack on WUT’s university qualifications and the admission of ‘verbal’, ‘irrelevant’ and ‘on the fly evidence’ concerning his character. The ‘on the fly evidence’ submission appears to refer to matters raised by Victoria Police in cross-examination of WUT and his witnesses, including how WUT ceased to be a Justice of the Peace. That arose because of WUT’s evidence that only Victoria Police had said that he was not of fit and proper character. He also criticised the admission and acceptance of ‘ludicrous claims’ by Victoria Police that he had made ‘unacceptable communication’ when in fact he was exercising his right of freedom of expression. He also said that the Tribunal had ignored all the electronic, video, media, radio and newspaper evidence that he should have been allowed to present. These are all challenges to findings of fact. I do not consider that WUT has established that the Deputy President had erred in making these findings or that there was no evidence to support them. He had regard to all the evidence that WUT presented after having taken time during the hearing to identify all of it. In his decision, he makes clear that he also looked at material that WUT filed, but to which he did not expressly refer in the hearing.

Self-represented litigant grounds

I do not consider that WUT has established that he was denied his rights as a self-represented litigant. The principal task of the Tribunal when a self-represented litigant is presenting or responding to an application, is to ensure that they understand the issues, in general terms the nature of the evidence that might assist the Tribunal in considering those issues and the procedures that apply. I referred to above to the Tribunal’s Fair Hearing Practice Note.

WUT’s oral evidence was subject to cross-examination as with most witnesses and I have not accepted his arguments about the manner in which the Tribunal permitted his questioning. I do not accept that counsel for Victoria Police breached his professional obligations by the questions he asked. Leading questions are permitted, and usually asked in cross-examination. Questions as to a witness’ understanding of the nature of the case in which they are called to give evidence are also routinely asked. The questioning from both sides was on occasion robust.

WUT did not point to any evidence that he wished to call, but was prevented from calling. He knew that Victoria Police was relying on the accountant’s evidence as a result of receiving Pinner’s decision. The question of whether he had been subject to an intervention order was similarly relevant. There was no dispute that he had been subject to such an order; the issue was why he had consented to it. The question of whether WUT sent the email to the Tribunal Member was relevant to the Deputy President’s decision. He knew of the respondent’s doubts about his university qualifications before the hearing.

The three hearing days in the Tribunal were each separated by a gap of eight days, during which WUT had the opportunity to consider the progress of the case and whether he wished to call further witnesses, or seek the Tribunal’s assistance to do so.

WUT has not established that the Deputy President breached the rules of natural justice or denied him procedural fairness or failed to comply with the Tribunal’s Fair Hearing Practice Note.

The Deputy President took into account the significantly supportive evidence from his character witnesses and the excellent services that he had provided to many people.

The Deputy President was not obliged to tell WUT of the weight that he might give to any particular evidence; that was a matter for him to decide at the end of the case after hearing and considering submissions.

Charter questions

A number of questions concern the Charter of Human Rights and Responsibilities Act 2006, in particular questions 22 and 27.

Question 22: did the Tribunal err when it did not comply with its obligation under s 98(1) or parts of the Charter that state you are innocent until proven guilty in a criminal case, misusing their jurisdiction to come to conclusions about a criminal matter in a civil appeal? The grounds are that the Deputy President stated that he believed that WUT was guilty of a criminal offence that has not yet been heard on its merits, that matter is in a different jurisdiction and an unheard criminal case and the Deputy President misused the jurisdiction to come to conclusions about a criminal matter in a civil matter.

Question 27 asks: did the Tribunal breach s 24 of the Charter in their obligation under ss 98 (1) and 102(1) in denying the SRL his rights under the original enactment to be fully informed and to have an opportunity to fairly defend the case against [him], and properly determine its jurisdiction to legally allow it to be conducted in the format it was? The grounds are that the Tribunal breached the fit and proper person test by ignoring and dismissing evidence of WUT’s ‘public interest strengths’ and the evidence that there had been no complaints about his service and the evidence presented from witnesses that he was a fit and proper person.

Then there are WUT’s grounds associated with question 10, which was not itself a Charter question, which contend that the Tribunal erred by failing to consider ss 13, right to privacy and reputation, 15, freedom of expression and 18, taking part in public life, of the Charter.

WUT submitted that the Tribunal refused to comply with its obligations to consider claims that the original decision maker breached the Charter and make a declaration to that effect. But I have previously explained why the Tribunal had no jurisdiction to make such a declaration. The Tribunal was under no obligation to consider claims that the original decision maker had breached the Charter.

WUT relied on Bell J’s judgment in Goode v Common Equity Housing (‘Goode’).[203] That case differed because Bell J held that the Tribunal erred in deciding that as it had dismissed Ms Goode’s application on the ground that Common Equity Housing had not committed any acts of prohibited discrimination, it did not have jurisdiction to consider her allegations of human rights violations.
[203][2014] VSC 585.

Victoria Police submitted that the Tribunal was not obliged to comply with ss 13, 15 and 18 of the Charter. Alternatively, it submitted that nothing done by the Tribunal in the hearing or in the reasons for decision breached those rights.

The Deputy President said with respect to the Charter claims:

I do not accept that any actions by Victoria Police relevant to this proceeding cause the Charter to impact the correct and preferable decision in this case. It is sufficient to say that to the extent that human rights set out in the Charter are or were fettered by the operation of the Act, with reference to s 7 of the Charter such fettering falls within ‘reasonable limits’ on those rights.[204]

[204]WUT v Victoria Police (n 2) [258].

The first Charter issue was whether it applied to the proceedings in the Tribunal and that turns on the capacity in which the Deputy President was acting when determining whether WUT’s licence should be renewed.[205] He was obliged to hear the renewal application afresh and make the appropriate decision on the evidence presented to him.
[205]CB 830; Charter of Human Rights and Responsibilities Act 2006 (Vic) s 4(1)(j) (‘The Charter’).

Section 38 of the Charter makes it unlawful for public authorities ‘to act in a way that is incompatible with a [Charter] right or, in making a decision, to fail to give proper consideration to any relevant [Charter] right’. For the purpose of defining a public authority, s 4(1)(j) relevantly states that a public authority does not include ‘a court or tribunal except when it is acting in an administrative capacity’.[206]
[206]The Charter s 4(1)(j).

In my opinion, the Tribunal was acting in a quasi-judicial capacity and not an administrative capacity, as it was making a binding and authoritative determination of legal rights and duties according to existing legal principles.[207] The Tribunal was therefore not a public authority under s 38 of the Charter, and save as provided in s 6(2)(b), the Charter did not apply to it.
[207]See PJB v Melbourne Health (2011) 39 VR 373, 404 [124] (Bell J) (‘Patrick’s Case’).

Notwithstanding the above finding, courts and tribunals have an obligation to apply human rights in circumstances described in s 6(2)(b) of the Charter which provides that the Charter applies to:

[C]ourts and tribunals, to the extent that they have functions under Part 2 and Division 3 of Part 3;

The Tribunal was therefore obliged to comply with ss 8 and 24 of the Charter, because they were functions under Part 2 and WUT had the right to be treated equally before the law and had a right to a fair hearing.[208]
[208]See Matsoukis v Yarra Ranges Council [2017] VSC 61, [29] and Cemina v Cannan (2018) 56 VR 480 [130].

In making submissions about question 22, WUT contended that he was treated as a criminal during the Tribunal proceeding, and that his witnesses were poisoned with leading harmful questions in breach of the Charter. These matters have been considered previously.

WUT submitted that the Tribunal breached s 24 of the Charter by conducting a formal trial and by not informing him of crucial evidence opportunities available to him. I have dealt with this argument in considering his natural justice grounds.

I do not accept that the Tribunal erred by coming to a conclusion about a criminal matter in a civil appeal. The Deputy President made a finding about whether WUT had sent the email to the Tribunal Member as a fact relevant to the two statutory questions that he had to answer – the public interest and the probity issues.

The Court has jurisdiction to stay a civil proceeding arising out of the same circumstances as a criminal proceeding against the defendant if there is a real prospect of substantial prejudice to the defendant in the criminal proceeding should the civil case continue. The Tribunal may decide to adjourn a matter on similar grounds. But generally, a civil proceeding must continue even if it involves the same question as the criminal proceeding, and there is no automatic right to a stay of the civil proceeding. It must be shown that there is a real risk of prejudice to the defendant.[209] But WUT did not seek to have his Tribunal application adjourned or stayed. He in essence submitted that the Deputy President should not have made a finding about an issue before him – whether WUT sent the email to the Tribunal Member. There is no legal principle supporting that submission. The Deputy President was entitled to consider that the question of the email was a significant issue.
[209]See McMahon v Gould (1982) 7 ACLR 202; Reid v Howard (1995) 184 CLR 1 and Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46 and cases collected in John Arthur, Civil Procedure: Victoria, vol 1 (July 2020 update), 3444.29-3444.32.

Conclusion

So far as question 27 is concerned, I have previously concluded that WUT has not established breaches of natural justice or procedural fairness. The requirements of those principles depend on the circumstances of the case. A party, not least a self-represented litigant, must be given a reasonable opportunity to present their case in conditions that do not place them at substantial disadvantage compared to their opponent.[210] However as I have previously concluded, WUT’s arguments do not establish a breach of natural justice.
[210]Knight v Wise [2014] VSC 76, [36] citing Ragg v Magistrates Court of Victoria (2008) 18 VR 300 at [45]-[51].

I have also explained why WUT has not established that the Tribunal failed to comply with its obligation to assist him as a self-represented applicant to know his rights and the relevant procedures. As discussed previously in respect of WUT’s question 5, the Deputy President assisted WUT in the course of the hearing. I am satisfied that WUT had a reasonable opportunity to argue his case before the Tribunal and was not placed at a substantial disadvantage to his opponent.

So far as WUT’s reliance on s 8 of the Charter is concerned, no submission was put that established that the Tribunal failed to provide him with equality before the law. No detailed submissions were put as how the Tribunal breached the rights contained in ss 13, 15 and 18 and I am not persuaded that it did. WUT relied on his right of freedom of expression and the Deputy President made allowances for that argument, but had to determine whether the terms and language of his communications, taken with all the other evidence, led him to the conclusion that the statutory grounds for licence renewal were not satisfied.

Adequacy of reasons

Question 11 asked: did the Tribunal err by failing to take into consideration a relevant consideration, namely multiple errors of law, allowing the ‘on the spot’ submission of prejudicial evidence? WUT provided no grounds that related to these issues or identifying any alleged errors of law or ‘on the spot’ submissions of law which were not the subject of other questions.

The grounds to question 11, also raised the issue of whether the Tribunal erred by failing to provide proper detail or substantiation of the path of reasoning for the appellant to know and understand why the Tribunal determined that the appellant was not a ‘fit and proper person’ pursuant to s 25(2)(a) of the Act namely:

(a) submissions tendered by the respondent at the trial;
(b) ignoring the statutory definition of ‘known information’ as defined in the originating enactment in its determination of whether the appellant was a ‘fit and proper person’ pursuant to s 25(2)(a) of the PS Act.[211]
[211]See the definition of ‘known information’ in s 3 of the Act. No separate submission appears to have been put about this issue.
(c) the allowance of ‘on the spot’ new ‘evidence’ constantly inundating and railroading the appellant without notice or opportunity to defend (contradictory to an undertaking at the Directions hearing limiting the Respondent evidence, the reasons for decision given to the appellant originally, the s 46 and the s 49 statement):
i. a breach to s 97, s 98(1) and s 102 of the VCAT Act;
ii. a breach to s 24 of the Charter of the Human Rights and Responsibilities Act;
iii. contrary to the natural justice practice notes of VCAT;
iv. contrary to the requirement of the VCAT member to assist the SRL practice notes of VCAT;

greater than the statutory evidence limitations of the original decision maker in executing the same statutory decision under the originating enactment.[212]

[212]CB 824.

The matters raised by the grounds have been dealt with previously, but I will consider the question itself as raising the question whether the Tribunal’s reasons were adequate.

The Tribunal is required by statute to give reasons for its orders, including where written reasons are given, findings on material questions of fact, that affected the findings or conclusions of the Tribunal.[213] The reasons must provide an ‘intelligible explanation of the process of reasoning that led to the findings, and where necessary make reference to the evidence and material upon which the findings were based’.[214] The Tribunal’s reasons must state its findings on key issues and why it made them and explain its path of reasoning.
[213]VCAT Act s 117; Secretary to the Department of Justice v YEE [2012] VSC 447, [96] (Kyrou J) (‘YEE’).
[214]Dimatos v Coombe [2011] VSC 619, [20] (Beach J).See also Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; 24 Hour Fitness Pty Ltd v W & B Investment Group Pty Ltd [2015] VSCA 216, [52].

In this matter, the Deputy President in his reasons referred to the evidence relevant to his findings and his six reasons for concluding that WUT did not have the necessary character to hold a licence and explained his path of reasoning in detail. His reasons were perfectly adequate in a case where there was much material to be considered. The reasons informed WUT why the Tribunal considered that he was not a person ‘fit and proper’ to hold a licence: s 25(2)(a).

Conclusion

The Deputy President analysed the evidence in detail between paragraphs [23] and [187] and [219] and [258] of his reasons. In discussing each of the six reasons for finding that WUT was not fit and proper to hold a licence, the Deputy President referred to the evidence which led him to reach each of the relevant conclusions and stated why it was persuasive. He considered the evidence which was both favourable and detrimental to WUT. He balanced these categories of evidence to reach the requisite civil standard for his decision. In doing so, he provided an ‘intelligible explanation of the process of reasoning that led to the findings’.[215] The Deputy President also listed the evidence or matters which were not taken into consideration when reaching his decision; he adequately explained why that evidence was rejected. The Deputy President’s reasons adequately explained his path of reasoning.
[215]YEE (n 213).

Improper purpose

Question 24 asks: did the Tribunal err by making a decision that was made for an improper purpose, personally motivated, in reprimand for the appellant exercising his freedom of expression to complain and defend itself lawfully, made in bad faith, inconsistent or biased? The grounds are: that the Tribunal erred by making a decision for an improper purpose, personally motivated, made in bad faith and biased, it was used as a springboard to assist the police in their attempt at a frivolous criminal prosecution that had not even been heard and they were out of jurisdiction, frivolous PSIO which was taken in breach of the Act and used to punish him for the last 18 months without a hearing to determine jurisdiction.

These allegations were not developed in separate argument and have no substance.

Conclusion

The effect of the refusal to renew WUT’s licence will have significant consequences for him. As he emphasised, he has not been the subject of previous complaints by clients. But his conduct, particularly in conflict situations, provided a strong basis for the Deputy President to reach the conclusions that he did. That conduct was a more significant issue than his answers on the renewal form. The Deputy President’s findings were based on number of matters which he took into account in combination and weighed against the evidence of WUT’s good character given by a number of witnesses. The Deputy President’s findings were largely matters of fact and no legal basis has been established to challenge them. Nor do I consider that the legal arguments about the Equal Opportunity Act, natural justice or the Charter provide any real prospect of success to justify the grant of leave to appeal.

I am not satisfied that any of WUT’s questions of law or proposed grounds establish any error by the Deputy President or have any real prospect of success. The proceeding must be dismissed.

[165]CB 820-21.

[2020] VSC 586

11 September 2020. First Revision 29 October 2021