VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
Administrative Division
Review and Regulation List	VCAT Reference: Z938/2022	

CATCHWORDS	
Publication of an Order after the applicant’s name has been anonymized – Applicant’s application under section 50(3) of the Victorian Civil and Administrative Tribunal Act 1998 for a stay of the respondent’s decision.	

APPLICANT:	MJO	
RESPONDENT:	Victorian Institute of Teaching	
BEFORE:	Deputy President I Lulham	
HEARING TYPE:	In Chambers	
DATE OF ORDER:	28 March 2023	

BACKGROUND

1	On 18 January 2023, I made an Order in respect of the applicant’s application for a stay under section 50(3) of the VCAT Act. The Order and Reasons were sent to the parties, but were not published on Austlii in the usual way. 
2	Paragraph 1 of the Order said, “This decision shall not be published on Austlii until further Order”, and paragraph 7 of the Reasons said: 
The Tribunal publishes its decisions on Austlii, but I am advised that at 12:20am on 10 January 2023 the applicant filed an interlocutory application for orders including an order that his name be anonymized in Tribunal documents. That application will be heard in due course. It is appropriate that this decision not be published on Austlii until that application for anonymisation is heard and determined.
3	Subsequently, Orders were made in this proceeding on 27 January 2023 and 28 February 2023 which together have the effect of anonymizing the applicant’s name in the proceeding to “MJO”. As a result of those Orders, it is now appropriate to publish on Austlii my Order of 18 January 2023.
4	The published Order, which is annexed to this Order in Chambers, is identical to the Order which was sent to the parties, except that an obvious typographical error in paragraph 26 of the Reasons has been corrected ( changing “10:00pm” to “10:00am”) and that the applicant is referred to as “MJO”. The correction to paragraph 26 is made under section 119 of the Victorian Civil and Administrative Tribunal Act 1998.
5	The reader will understand that paragraph 1 of my Order and paragraph 7 of my Reasons, which I quoted above, still appear but have been overtaken by this Order. 
ORDERS
The Tribunal orders
1	Further to paragraph 1 of my Order made 18 January 2023, that Order shall now be published on Austlii with the anonymisation and correction referred to above.  
2	That anonymized version of the Order is annexed.

I Lulham
Deputy President

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
REVIEW AND REGULATION LIST	vcat reference No. Z938/2022
	
CATCHWORDS	
Applicant’s application under section 50(3) of the Victorian Civil and Administrative Tribunal Act 1998 for a stay of the respondent’s decision.	

APPLICANT	MJO	
RESPONDENT	Victorian Institute of Teaching	
WHERE HELD	Melbourne	
BEFORE	Deputy President I Lulham	
HEARING TYPE	Applicant’s application for a stay, under s50(3) of the Victorian Civil and Administrative Tribunal Act 1998	
DATE OF HEARING	23 December 2022	
DATE OF ORDER	18 January 2023	
CITATION	MJO v Victorian Institute of Teaching (Review and Regulation) [2023] VCAT 58	

Order
1	This decision shall not be published on Austlii until further Order.
2	The applicant’s very late application for an adjournment of the hearing of his application for a stay of the decision made by the respondent on 11 November 2022 is refused.
3	The applicant’s very late application for leave to file written submissions in connection with his application for a stay of the decision made by the respondent on 11 November 2022 is refused.
4	The applicant’s application for a stay of the decision made by the respondent on 11 November 2022 is dismissed.
5	The respondent’s costs of the applicant’s application for a stay are reserved.

I Lulham 
Deputy President			

APPEARANCES:		
For the Applicant 	In person	
For the Respondent	Mr McAuliffe of Counsel	

Reasons
1	The respondent, which in the context of this proceeding operates under Part 2.6 of the Education and Training Reform Act 2006, registers and regulates teachers and early childhood teachers in Victoria.
2	On 30 September 2020, the applicant applied for Renewal of his Registration as a teacher. On 11 November 2022, the respondent issued to the applicant a Notice of Refusal of Registration in respect of that application (the “decision”).
3	On 8 December 2022, the applicant issued this proceeding Z938/2022, seeking a review of the decision. Included in that application was an application under section 50(3) of the Victorian Civil and Administrative Tribunal Act 1998 for a stay of the decision. 
4	By email dated 4:11pm on 9 December 2022, the applicant asked that the stay application be heard urgently. By an Order made in Chambers on 16 December 2022, Deputy President Proctor listed the stay application for hearing, to be held by Zoom at 2:00pm on 22 December 2022. The Deputy President ordered that the parties must be available to participate in the hearing and must remain available until the hearing ends, and that the parties must cooperate with the Tribunal’s requirements for the conduct of the hearing.
5	At 4:27pm on 21 December 2022, the applicant emailed the Tribunal’s registrar. The first paragraph of that email asked the registrar to forward the email to Deputy President Proctor, in his capacity as the Head of the Administrative Division, on the asserted basis that the Deputy President has power to appoint members to preside over hearings. Relevantly, the applicant wrote that the stay application ought not be heard by Justice Quigley – the President of the Tribunal – Deputy President Proctor, Senior Member Jenkins, Senior Member Wentworth or Senior Member Billings, essentially on the grounds that these members were actually or ostensibly biased against him. The applicant threatened to serve summonses to witness upon Justice Quigley and Senior Member Jenkins “and perhaps other members” if Deputy President Proctor “refused” to cause another member to hear the stay application. Whilst it is completely inappropriate for a litigant to seek to threaten the Tribunal in order to advance an application, I was available to conduct the hearing and so the parties were not put to the trouble of dealing with an application for reconstitution, or with the delay and expense that such an application might entail. This correspondence from the applicant is relevant to the stay application, as I will show below. 
6	I conducted the hearing from 2:00pm until approximately 5:15pm on 22 December 2022, and then from 10:00am until approximately 1:00pm on 23 December 2022. I allowed the hearing to run well over time on 22 December 2022 to ensure that the applicant, as a self-represented litigant, could make submissions. The respondent’s submissions in reply were heard for around 1 hour on 23 December 2022, and the applicant made submissions in reply for around 80 minutes before he abruptly left the hearing. In the hearing the applicant described himself as an “experienced self-represented litigant”, who is not currently employed because he devotes all of his time to conducting litigation. It is appropriate for the Tribunal, when hearing from a self-represented litigant, to give the litigant some leeway so that he or she can truly exercise their right to be heard. The applicant, however, plainly chose to surpass the norms expected of any litigant in a hearing and in several respects his conduct was most inappropriate. This conduct is relevant to the stay application, as I will show below.
7	The Tribunal publishes its decisions on Austlii, but I am advised that at 12:20am on 10 January 2023 the applicant filed an interlocutory application for orders including an order that his name be anonymized in Tribunal documents. That application will be heard in due course. It is appropriate that this decision not be published on Austlii until that application for anonymisation is heard and determined.
Section 50 of the Victorian Civil and Administrative Tribunal Act 1998
8	Section 50(1) of the VCAT Act provides that the commencement of a proceeding in the Tribunal for review of a decision does not affect the operation of the decision or prevent the taking of action to implement the decision.  There are two exceptions: first, where the enabling enactment provides otherwise, and secondly where the Tribunal makes an order under section 50(3). That section empowers the Tribunal to make an order staying the operation of a decision that is the subject of the proceeding for review.
9	The Tribunal’s power under section 50(3) is discretionary. The VCAT Act does not expressly stipulate any particular principles to guide the Tribunal in the exercise of the discretion. In various reported decisions, which are usefully summarised in “Pizer’s Annotated VCAT Act” at paragraph [50.80], the Tribunal has identified a number of principles that guide the exercise of the discretion. Those principles include:
(a)	whether or not the failure to grant a stay would render the application for review nugatory;
(b)	whether there is a serious question to be tried on the review;
(c)	whether or not a party will suffer prejudice if the application is granted or refused;
(d)	whether or not it is in the community or public interest that a stay be granted;
(e)	the period of time that will elapse before the hearing of the application for review;
(f)	in appropriate cases, the extent to which a person who faces regulatory proceedings has an incentive not to engage in further inappropriate behaviour for the duration of the proceeding; whether the applicant has the support of any relevant person in the context of the proposed review; and the relevant behaviour of the applicant;
(g)	where appropriate, whether any stay should be granted subject to conditions; and
(h)	where appropriate, whether any stay should be granted subject to the applicant giving of an undertaking, for example where it is possible to ameliorate the factors against the stay by requiring the applicant to give such an undertaking contravention of which would be punishable as a contempt.
10	The applicant spent a good deal of time in the hearing discussing the merits of his application for review, which he asserted was essential background information.  He did this at length when making his submissions, and then did so again on the second day of the hearing purportedly by way of reply. These submissions were to the effect that there is a serious question to be tried in the review. It is unnecessary for me to dwell on them, as whilst I acknowledge that the respondent submitted that the applicant’s construction of relevant statutory provisions was erroneous, I could not determine – for the purposes of this stay application – that there is no serious question to be tried. 
The applicant’s relevant submissions
11	In substance the applicant submitted:
(a)	The applicant’s private interests in earning a salary should outweigh any public interest. Whilst the applicant does not work, he would like to. Attending a workplace creates opportunities for socialising and improves one’s mental health.
(b)	A stay should be granted because there is a public interest in enabling the applicant to teach. There is a shortage of teachers in Victoria. This shortage of teachers is also a factor in the Tribunal considering the balance of convenience.
(c)	The applicant has not made any admissions in relation to alleged misconduct. Allegations against the applicant, being unproven, do not establish that he is a danger to children.
(d)	If a stay was not granted, the application for review of the respondent’s decision to refuse registration would be nugatory.
(e)	A stay is warranted because there will be a lengthy delay in obtaining a final outcome of this proceeding, because of the way in which the applicant intends to run the proceeding. The applicant is contemplating making an application under section 75 of the VCAT Act, to strike out parts or all of the respondent’s case in the proceeding. The applicant’s submissions as to his interpretation of the Education and Training Reform Act 2006 will create interlocutory applications in the proceeding. The applicant will approach the matter on the basis that the Tribunal must consider each step and event leading to the respondent’s decision to refuse registration. The applicant will raise many issues in the case. The applicant is predicting that there will be three or four preliminary applications before the final hearing. The applicant asserts that the case could take three or four years in these circumstances.
(f)	The respondent’s refusal to register the applicant has damaged his reputation, and this will be exacerbated if a stay is not granted. In this context, the applicant submitted that he has a worldwide reputation and that persons who saw on the internet that his name was missing from the register of teachers would be concerned.
(g)	Finally, if a stay is granted the respondent will suffer no prejudice, but if a stay is not granted the applicant will suffer prejudice.
The respondent’s submissions in opposition
12	Again, I record that the respondent submits that the applicant’s interpretation of relevant legislation is erroneous. In relation to the merits of the application for review, the respondent submitted that on 15 September 2021 it decided to issue to the applicant a Notice of Intention to Refuse Registration, in which it set out its concerns, and that it rescinded that Notice on 27 October 2021. On 9 February 2022, the respondent decided to issue to the applicant a new Notice of Intention to Refuse Registration, and on 11 March 2022 it gave that Notice to the applicant and gave him an opportunity to respond. On 27 May 2022, the respondent determined to refuse the applicant’s Application for Renewal of Registration as a teacher, and on 11 November 2022 it issued to the applicant a letter containing the Notice of Refusal of Application for Registration. As at 27 May 2022, the applicant’s existing registration had been extended to 31 May 2022. It was not extended beyond that date.
13	The respondent submitted that failure to grant a stay would not render the review application nugatory. 
14	First, if the Tribunal granted a stay of the decision made on 11 November 2022, it would not result in the return of the applicant’s registration as a teacher. It would only return the applicant to the status that he was in when the decision was made, which was that his existing registration expired at the end of 31 May 2022.
15	Secondly, there is no evidence before the Tribunal about the applicant’s need or requirement for registration. There is no evidence that the applicant has sought, held or obtained employment as a teacher after 30 September 2020. As I said above, the applicant stated in the hearing that he was not working because he devotes his time fully to engaging in litigation. The respondent also pointed to three facts. First, that when the applicant applied for renewal of registration, he wrote on the form that he was “not teaching”. Secondly, that the Education and Training Reform Act 2006 obliges teachers to notify the respondent in writing of the name of any school at which the teacher is employed within 30 days of commencing employment, and that the applicant has not given any such notification. Thirdly, that the respondent requests all persons and bodies who employ teachers in schools to give the respondent details of all teachers that they employ, and that the respondent has not received any notification from any such body of having employed the applicant.
16	The respondent submitted that it was in the public interest for the application for a stay to be refused. Again without dwelling on the particulars of the issues which will be raised in the review hearing, and whilst recording that the applicant expressly makes no admissions, two of the respondent’s concerns about the applicant’s conduct as a teacher were his behaviour towards students including belittling and undermining students in front of their peers, causing students stress by making false accusations against them, and seeking to have students retract their complaints against the applicant thereby preferencing the applicant’s position over that of his students, and “reportable conduct” under the Education and Training Reform Act 2006 which included sexual misconduct committed against a child. The respondent submitted that the public interest outweighs such private interest as the applicant has in this case, in circumstances where the applicant is not teaching and has not shown that he has even sought employment as a teacher after 30 September 2020.
Analysis 
17	I accept the above submissions of the respondent, which are self-evidently valid. Of course the public interest outweighs the applicant’s private interest in this case. Because the applicant is not teaching, has not applied for a teaching position, and has no time to teach due to his full-time commitment as a litigant, failure to grant a stay would not render the review application nugatory. The applicant does not have an actual or potential teaching job to lose, in the absence of a stay. In due course the applicant’s application for review of the decision will be heard.
18	In addition, I find that the applicant’s submission (b) is illogical. The respondent has decided not to renew the applicant’s registration as a teacher, on grounds that the respondent has determined warrants that decision. Whilst the applicant has sought a review of that decision, his submission amounts to a claim that teaching standards should be abandoned when there is a teacher shortage. Even leaving aside the fact that there is no evidence before the Tribunal that there is a teacher shortage in Victoria, the submission is self-serving and absurd.
19	I find that the applicant’s submission (c) is artificially narrow. The decision is not solely based on a finding that the applicant is a danger to children. The applicant’s submissions showed that he is well aware of this. The applicant’s submission ignores, and does not address, the full breadth of the basis of the respondent’s decision. A narrow finding that the applicant is not a danger to children would not assure the applicant that his application for review would be granted.
20	In relation to the applicant’s submission (e), I do not accept that there will necessarily be a lengthy delay in obtaining a final outcome of this proceeding. All applicants in legal proceedings have a degree of tactical advantage over the respondent, because the applicant can choose how to conduct their litigation. An applicant who efficiently conducts the proceeding will necessarily obtain a final hearing earlier than one who does not. The proposition that the applicant can use to his advantage in a stay application an argument that he intends to bring a multiplicity of interlocutory applications is extraordinary and plainly misconceived. In the respondent’s written outline of submissions, it stated that it did not anticipate delays in its filing and service of the statement of reasons and documentary material relevant to the decision.
21	In relation to the applicant’s submission (f), I must ask, “What reputation?”. I have not read the decisions to which the applicant alluded, as it is unnecessary for me to do so, but I must have regard to the applicant’s disclosure, in his email of 21 December 2022,  that he would object to his case being heard by Justice Quigley, Deputy President Proctor, Senior Member Jenkins, Senior Member Wentworth or Senior Member Billings, because of adverse findings made by them in published decisions. Further, the applicant’s argument that people might look at the register of teachers on the internet and be concerned if the applicant’s name was absent, is mere speculation.
22	I consider the applicant’s submission (g), that if a stay is granted the respondent would suffer no prejudice, but that if a stay is not granted the applicant would suffer prejudice, to be misconceived. This is not a commercial dispute where it might be argued that the respondent would suffer no prejudice because it had possession of funds in dispute. No, the respondent’s role in registering and regulating teachers and early childhood teachers in Victoria, is to maintain standards and protect the public interest. Whilst I record that the applicant expressly makes no admissions, the respondent’s concerns about the applicant’s conduct as a teacher, which I have described above, reflect its role in protecting the public interest and so of course the respondent could suffer prejudice if a stay was granted, because the public interest could be prejudiced. On the other side of the equation, as the applicant has admitted that he is not teaching, and as he stated that he does not have time to teach because of his full-time commitment to litigation, no prejudice could be suffered by the applicant if a stay was not granted.
23	For these reasons, the applicant’s application for a stay must be refused.
Costs 
24	In the respondent’s written outline of submissions, the respondent stated that it did not seek costs of the stay application. Nevertheless, I will reserve the respondent’s costs. I consider that when the respondent’s written submission was prepared, the respondent would reasonably have anticipated that the hearing of the stay application would have been completed on 22 December 2022, rather than running over time on that day then proceeding on 23 December 2022. 
Finally, a procedural issue
25	I need to address the events at the end of the hearing on 23 December 2022.
26	When the applicant made his submissions on 22 December 2022, he had already received the respondent’s written outline of its submissions, and the applicant addressed the issues it raised. At the beginning of the hearing at 10:00am on 23 December 2022, before the respondent’s Counsel made submissions orally, the applicant said he was scheduled to have minor surgery and would have to leave at about 1:00pm.  Having made submissions for more than three hours on 22 December 2022, the applicant also said that he wanted to make written submissions in the stay application.  
27	At around 12:23pm on 23 December 2022 the applicant said that he was becoming ill. He applied for an adjournment of the hearing, said that the adjournment should be until after the respondent had submitted its section 49 materials, and he also said that he would “accept” a stay with the condition that he not work in a school. In a sense, this latter statement purports to be an application to amend the application for a stay. I called on the respondent to make its submission in reply to these applications, at which time the applicant abruptly left the Zoom hearing and apparently went to the bathroom.
28	The applicant returned briefly but again left before the respondent could be heard. 
29	By around 12:49pm the applicant had still not returned to the hearing. Time was clearly running out and the applicant had spent longer on his submission in reply than had the respondent’s Counsel in making its submission. Further, as I said before, the applicant had spent over three hours in making his original submissions and in doing so he addressed the respondent’s written outline of submissions.
30	In the absence of the applicant I heard the respondent’s submissions on the applications for the adjournment and for the opportunity to make written submissions. The respondent opposed both applications, and I rejected both of them. The hearing ended at approximately 1:00pm. As the applicant was absent when I announced those orders, I prepared an email for registry to send to both sides recording these final events in the hearing. The text of this email was as follows, and I understand that the registry sent it at about 1:17pm:
At approximately 12:30pm [MJO] left the virtual hearing, apparently to go to the bathroom because he felt unwell. By 12:50pm approximately he had not returned. At the beginning of today's hearing at 10:00am [MJO] had said that he had a medical appointment and would have to leave altogether by 1:00pm or so.
Just before [MJO] left the virtual hearing at 12:30pm, he had applied for an adjournment of the hearing of his application for a stay, until the respondent had filed its section 49 materials. Immediately before [MJO] left the virtual hearing at 12:30pm I had said that I invited the respondent to make its submission in reply to the application for the adjournment.
At approximately 12:50pm, [MJO] still not having returned, I heard the respondent's submissions. It opposed the application for the adjournment. It also opposed a suggestion by [MJO] that he be given an opportunity to make written submissions.
I noted that as [MJO] has had litigation in the Tribunal before, he would have known that the hearing commencing at 2:00pm yesterday would have been listed on the basis that it would finish by 4:15pm. I allowed [MJO] to go over time, and the hearing yesterday finished at approximately 5:15pm with the respondent not having begun making its submissions. The respondent made its submissions today from approximately 10:00am until approximately 11:00am, and thereafter [MJO] made his submissions in reply until approximately 12:30pm today. In those circumstances I was not persuaded that, objectively, [MJO] fairly required more time. I do not consider it appropriate to adjourn the hearing of [MJO]’s application for a stay at such a late stage, or to give him the opportunity to make written submissions.
I reserved my decision on the application for the stay.
As [MJO] was not present when I heard the respondent's submissions on the question of the adjournment and the filing of written submissions, and announced my ruling on those matters, Counsel for the respondent asked that I send the parties an email recording the events after 12:30pm  and I agreed to do so. I note, of course, that the Zoom hearing was recorded.
31	I see that at 1:21pm on 23 December 2022 the applicant emailed the Tribunal as follows. He did not send a copy to the respondent. 
Dear Registrar,
I had to rush out of the hearing twice due to vomiting. I was feeling very dizzy as I had told the Tribunal. The second time, I just sat on the bathroom floor with no energy. And then lay down because I could not move. When I finally got up and came here, the hearing was done.
I am writing this to again let the Tribunal know that I have made an Application Adjournment on medical grounds. And also on the fact that I was not able to respond to the submissions of the VIT which were made in writing yesterday and orally today. I did not even get a chance to read the cases cited except one. I was not able to focus yesterday and today due to my fasting and not eating at all since about 8 pm on Wednesday. I also had nothing to drink today as I told the Tribunal already.
It makes sense for the stay hearing to resume after the s 49 Material is filed and other material is filed by me. The Tribunal must be aware of the facts and circumstances of the case which it is currently not. The facts as submitted by the VIT are incorrect. The law applied consists of errors of statutory interpretation. I must be given an opportunity to provide my written submissions on all of this as it relates to the stay application. I have not been able to do so for the reasons stated.
Best Regards,
32	There is no objective medical evidence before the Tribunal in relation to the applicant’s condition on 22 and 23 December 2022. From my observation, there was nothing apparently wrong with the applicant throughout the hearing on 22 or 23 December 2022, until the applicant claimed that he was unwell. I saw nothing which indicated that the applicant “was not able to respond” to the respondent’s submissions. The applicant left the Zoom hearing on 23 December 2022, not at any stage when he was making submissions but only when it was time for the respondent to do so. The applicant’s email of 1:21pm on 23 December 2022 appears to have been carefully drafted and its expression does not suggest that its author was ill.
33	I make no finding that the applicant had a medical condition which warranted an adjournment. 
34	I consider that the applicant’s leaving of the Zoom hearing needs to be seen in the context of other behaviour during the hearing. The Order made by Deputy President Proctor on 16 December 2022 required the parties to be available to participate in the hearing, to remain available until the hearing ended, and to cooperate with the Tribunal’s requirements for the conduct of the hearing.
35	In several respects the applicant did not cooperate with the Tribunal’s requirements for the conduct of the hearing. On the contrary: in the hearing before me, the applicant conducted himself, in several respects, in ways which were unreasonably demanding, aggressive, harassing and relentless. The applicant said that he was “passionate” and that he communicates accordingly. I do not accept that the applicant’s self-diagnosis justifies his insulting conduct towards the Tribunal, such as loudly muttering the words “Jesus Christ!” during his summary of statutory provisions to show his displeasure at his interpretation of a statute not being immediately accepted; unnecessarily sharing his screen in the Zoom hearing and positively refusing to desist, necessitating a break in the hearing; and making unwarranted personal attacks on the conduct and alleged motives of Counsel for the respondent.  
36	Seen in the context of this misbehaviour, I am not prepared to simply take the applicant at his word when he asserts that he became ill. Strictly speaking, I make no finding that the applicant had a medical condition which warranted his leaving the hearing, or an adjournment.

I Lulham 
Deputy President