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Taylor v Victorian Institute of Teaching (Review and Regulation) [2020] VCAT 1359 (3 December 2020)

Last Updated: 3 December 2020

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

ADMINISTRATIVE DIVISION

ORDER

The application for an extension of time to commence this proceeding is refused and the application for review of the respondent’s decision made on 31 August 2015 is struck out.

REASONS

1. By application dated 24 September 2019, Mr Julian Taylor applied for review of the decision, made by a panel convened by the Victorian Institute of Teaching (VIT) on 31 August 2015, to cancel Mr Taylor’s registration as a teacher (Decision).^[1]
2. The decision to cancel Mr Taylor’s teacher registration followed the panel’s finding that Mr Taylor obtained his registration by misrepresentation. The panel stated that:

The evidence is compelling that the person known to the [VIT] as Julian Richard Taylor did:

• Complete an application in a false name;
• Failed to disclose his previous names;
• Failed to disclose his findings of guilt and convictions for offences, including indictable, in Victoria and elsewhere; and
• Provided a false identity document in support of his application(s).

The evidence ... is unambiguous in that the Birth Certificate provided by Mr Taylor to support his registration application is false.

3. The birth certificate referred to is a Tasmanian Record of Birth, purported to be issued on 20 December 1993 in respect of the birth of Julian Richard Taylor in Hobart, Tasmania on 16 January 1965.^[2] However, there was no record held in the Tasmanian Register of Births of Mr Taylor, and the registration number used on the birth certificate he provided corresponded with a female born on 7 May 1965.^[3] In fact, based on records of the Department of Foreign Affairs, Mr Taylor was born in Bridgwater, England on 16 January 1965 and his name at birth was Steven Robert Barr.^[4]
4. As Mr Taylor produced a false birth certificate and did not disclose any of his previous names, at the time the VIT first registered him as a teacher, the organisation was unaware that he had been convicted of a number of offences, including offences involving dishonesty.^[5]
5. For the reasons which follow, we find that:

(a) the application for review was made after the time allowed for in the Education and Training Reform Act 2006 (Vic) (ETR Act); and

(b) an extension of time should not be granted under section 126 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act).

It follows that the application for review of the Decision must be struck out.

Was the application for review made out of time?

When Decision was given and time commenced to run

6. Under section 2.6.55(2)(b) of the ETR Act, Mr Taylor was required to apply for review of the Decision within three months after the day on which the VIT gave notice of the Decision.
7. The VIT sent a copy of the Decision to Mr Taylor by post on 7 September and 30 September 2015.^[6] The VIT also sent a copy of the Decision to Mr Taylor by email on 15 September, 30 September and 20 October 2015.^[7] In cover letters to those communications, the VIT provided information to Mr Taylor in relation to his right to apply to VCAT for review of the Decision.
8. Mr Taylor says that he did not receive the Decision sent by post because the address to which it was sent (240 Collins Street, Morwell) does not exist.^[8] It appears that that address was used by the VIT because it was the address that Mr Taylor specified in a statutory declaration he made on 19 August 2015. That statutory declaration was provided to the VIT to support a request for adjournment of the panel hearing on health grounds.^[9]
9. In relation to the emails, Mr Taylor contends the copy of the Decision which he was sent was void (for reasons that we come to later) and ‘direct[s] the VIT to prove this non-existent, voided, document was received’.^[10]
10. The VIT says that the email address they used (juliantaylor878@yahoo.com.au) was regularly used by Mr Taylor as a method of communication with the VIT^[11] and that it received a confirmation of delivery in respect of the last of its emails on 26 October 2015.^[12]
11. Contemporaneous evidence of Mr Taylor using the email address referred to in the previous paragraph can be found in an email from Mr Taylor to the VIT on 19 August 2015, which attached the statutory declaration referred to at [8] and earlier email correspondence in relation to the panel hearing.^[13]
12. Section 8 of the Electronic Transactions (Victoria) Act 2000 (Vic) provides that a requirement under a law for the giving of a notice will be ‘taken to have been met’ if the information is given by means of an electronic communication and:
    • it was reasonable to expect that the information would be readily accessible so as to be useable for subsequent reference; and
    • the person to whom the information is required to be given consents to the information being given by means of an electronic communication.
13. Consent for these purposes can be express or inferred from the conduct of the recipient.^[14]
14. In our view, it can be inferred that Mr Taylor consented to notice of the Decision being sent to him by email given that was the manner in which he was engaging with the VIT in relation to the panel hearing, following which the Decision was made. This is more so in circumstances where he has made a statutory declaration providing a residential address which he must have known did not exist.
15. There is no suggestion that Mr Taylor was incapable of retrieving the Decision which had been communicated by email.
16. Accordingly, on the balance of probabilities, we find that the Decision was given to Mr Taylor by no later than 26 October 2015.
17. Subject to the discussion of whether the Decision itself was void (and, if so, whether this has any relevant effect), it follows that the time period for applying for review of the Decision expired no later than 26 January 2016. As Mr Taylor’s application for review was submitted to the Tribunal on 24 September 2019, his application was made approximately 42 months late.

Was the Decision void and, if so, did this affect when time started to run?

18. As noted above, Mr Taylor contends that the Decision was void, with the inference that time has never started to run. There appears to be two alternative bases on which Mr Taylor contends that the Decision was void.
19. First, Mr Taylor contends that the Decision was made under the ‘wrong legal test’ in that the VIT panel reviewed his registration under the ETR Act (which was proclaimed on 1 July 2007) when it should have used the Victorian Institute of Teaching Act 2001 (Vic) (VIT Act) which was in place at the time that he became a registered teacher.^[15]
20. A similar issue arose in Thomas v Victorian Building Authority (Thomas).^[16] The respondent had issued a show cause notice to Mr Thomas applying the current form of the relevant legislation to acts or omissions which occurred during an earlier period of time when the regulatory regime differed.^[17] It was contended by Mr Thomas that the notice was invalid because the two grounds relied upon by the VBA, sections 179(1)(a)(i) and 179(1)(b) of the Building Act 1993 (Vic), ‘were not available grounds under the Act as at the period from 2004-2006 [ie. the earlier period when the relevant conduct occurred]’.^[18]
21. In that case, Kennedy J held that:^[19]

the transitional provisions, when considered along with the current form of the Act, evince an express intention that the current provisions prevail. This does not mean that different standards will necessarily apply. Thus, as is demonstrated in this case, s 179(1)(a) (which provides that the practitioner ‘has contravened’ the Act) can, as is alleged in the notice, refer to the Act (which is the same Act) as it applied at the relevant time. However, I am satisfied that the specification of the grounds is to be matched to the current form of s 179 consistent with what occurred in the notice in this case.

22. In the Decision, the panel found that Mr Taylor obtained his registration by misrepresentation for the purposes of section 2.6.46(2)(g) of the ETR Act. The transitional provisions in the ETR Act provide that a teacher that was registered under the VIT Act before the commencement of the ETR Act ‘continues to be registered by the [VIT] under and subject to this Act’^[20] (ie. the ETR Act).
23. Relevantly, section 20(4) of the VIT Act had also provided for cancellation of registration of a teacher who, after a hearing, was determined to have obtained his or her registration as a teacher by fraud or misrepresentation.
24. As in Thomas, the transitional provisions in the ETR Act make clear that the current provisions prevail and, in any event, the grounds on which the Decision was made are consistent between the ETR Act and VIT Act. As such, we do not consider that the VIT panel made the Decision under the wrong legal test or that the Decision is void for that reason.
25. The second basis relied on by Mr Taylor is his contention that the Decision ‘does not exist’ because the VIT confirmed in a directions hearing^[21] that there is no version of the Decision that is signed by the three panel members.^[22] Accordingly, he contends that ‘[s]ince it does not exist it is impossible for me to have received it’ and the ‘decision is void’.^[23]
26. The Decision itself was made by a panel comprising Ms Marilyn Mooney (as chairperson), Ms Anne Farelly and Mr Rowland Richardson.^[24] At the end of the Decision, Ms Mooney signed for herself and ‘per’ Ms Farelly and Mr Richardson. This suggests that Ms Mooney signed on behalf, and with the authority, of each of Ms Farrelly and Mr Richardson. There is no evidence presented by Mr Taylor to suggest that Ms Mooney did not have the authority to do so.
27. Section 2.6.46 of the ETR Act specifies that, after considering all submissions made to a formal hearing, a panel may make certain findings about a teacher and make determinations as to the action to be taken as a result, including cancellation of registration. Section 2.6.49A provides that the VIT may publish the whole or part of the findings, reasons or determinations of a panel in any manner that it thinks fit. Section 2.6.50 provides that the VIT must advise a teacher in writing of the determination of the panel and any cancellation of his or her registration. There is nothing in the ETR Act that provides that a decision of a hearing panel must be signed by each panel member to have effect.
28. In those circumstances, there is no basis for Mr Taylor’s argument that any failure by the VIT to have the Decision signed by each of the panel members rendered the Decision void.
29. Even if we are wrong on either point, section 4(2) of the VCAT Act provides that for the purposes of both the VCAT Act and an enabling enactment (such as the ETR Act), a decision:

(a) is made under an enactment if it is made in the exercise or purported exercise of a function conferred or imposed by or under that enactment; and

(b) that purports to be made under an enactment is deemed to be a decision made under that enactment even if the decision was beyond the power of the decision-maker.

30. The scope of this provision was explained in Garde-Wilson v Legal Services Board (Garde-Wilson),^[25] where Bell J indicated that once an application is made to the Tribunal, ‘it obtains an independent jurisdiction in relation to the decision’, and this ‘will not be affected by any invalidity affecting the decision at first instance’.^[26]
31. Accordingly, even if we were to accept that there was some error in the law applied by the hearing panel or in the manner in which the Decision was signed, it would not prevent the Tribunal from reviewing that Decision or have the effect that time did not run for determining when any application for review had to be submitted.

Should an extension of time be granted?

Principles

32. The VIT correctly observes that the discretion under section 126 of the VCAT Act to extend time to commence a proceeding is broad.^[27] The overriding purpose of that provision is to enable justice to be done.^[28]
33. When considering an application for extension of time, the Tribunal will consider the factors identified by Wilcox J in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment,^[29] being:
    • whether the applicant can demonstrate an acceptable explanation for the delay;
    • whether it is fair and equitable in the circumstances to extend time;
    • whether the applicant continued to make the decision-maker aware that he contested the finality of the decision;
    • whether the respondent will be prejudiced given the delay;
    • whether extending time may result in the unsettling of other people or established practices;
    • the merits of the substantial application; and
    • consideration of fairness as between the applicant and another person who is otherwise in a like position.

Whether the applicant can demonstrate an acceptable explanation for the delay

34. In an attachment to his application for review, Mr Taylor explains that he was ‘arrested and incarcerated on 25 November 2015’, which he says is shortly before the expiry of the three-month appeal period after the decision of 30 August 2015. He says that he did not receive bail until 8 September 2017 and that:

At this stage I was still under the misguided delusion that the VIT had made an honest mistake and, once this had been pointed out, it would be addressed. I was completely unaware of the Victorian Civil and Administrative Tribunal (VCAT) and its role at this time.

35. Mr Taylor suggests that it was not until a hearing in VCAT’s Human Rights List, where he pursued a discrimination claim against the VIT investigating officer, that he was advised to pursue his case in the Review and Regulation List.^[30]
36. The VIT says that Mr Taylor’s claims do not stand up to scrutiny.^[31] While being imprisoned may have provided a reasonable explanation for a short delay, it does not explain why it took him around three and half years to apply.^[32] (It should be observed, for context, that Mr Taylor was held on remand after being charged with criminal offences which related to the circumstances of his registration and subsequent employment as a teacher. We come back to these matters in the discussion of the merits of Mr Taylor’s review application.)
37. Further, the VIT notes that, after receiving bail, Mr Taylor had a period of around 11 months in which to make his application before he was found guilty of the criminal offences and imprisoned again on 14 August 2018.^[33]
38. In his submissions, Mr Taylor implies that, while on bail, there remained impediments to pursuit of any application for review (if he had been aware of it), in terms of the bail conditions preventing him communicating with the VIT or its employees, or communicating with his ex-wife who he suggests was conspiring with the VIT to have him convicted.^[34]
39. As already indicated, we are satisfied that Mr Taylor received notice of the Decision by 26 October 2015 at the latest. The cover letters made plain that if he was dissatisfied with the reasons for the Decision, he could request review by VCAT.
40. He had at least a month, prior to his arrest, to make any inquiries he considered necessary to better understand the nature of his review rights.
41. While it may be accepted that things became more difficult when he was placed on remand (although not impossible), there is no real explanation of why he did not take steps to apply for review once he was released on bail in September 2017. He had almost a year to do so before his trial and imprisonment.
42. In that period, the bail condition restricting approaches to the VIT did not in fact prevent Mr Taylor commencing an application against the VIT by filing an application with VCAT.
43. In those circumstances, Mr Taylor has not clearly demonstrated an acceptable explanation for the delay of three and half years.
44. While this points against the favourable exercise of the discretion in section 126 of the VCAT Act, it is not a strong or decisive point.

Whether it is fair and equitable in the circumstances to extend time

45. No specific submissions have been advanced by either party in relation to this consideration.
46. However, as discussed further below, we understand that Mr Taylor is pursuing an application for judicial review of the Decision in the Supreme Court of Victoria. Mr Taylor will remain entitled to pursue that application irrespective of our decision on whether to extend time.
47. It is also relevant to observe that, while the VIT panel cancelled Mr Taylor’s registration under section 2.6.46(2)(j) of the ETR Act, the panel did not make any determination under section 2.6.46(2)(k) to disqualify Mr Taylor from applying for registration for any period of time. As such, that pathway would appear to remain open to Mr Taylor if he wishes to pursue it.
48. As Mr Taylor continues to have other avenues to address his concerns about the Decision, and to achieve re-registration, and (for the reasons discussed below) the application for review by the Tribunal lacks merit, it would not be unfair or inequitable to refuse to extend time in respect of his application to the Tribunal.

Whether the applicant continued to make the decision-maker aware that he contested the finality of the decision

49. The VIT says that Mr Taylor neither took any action ‘to suggest he would contest the finality of the decision’, ‘nor did he inform the [VIT] that he planned to make an application to the Tribunal’.^[35] As such, the VIT was lead to believe the matter was finally concluded.
50. In his submissions, Mr Taylor contends that ‘[i]f the matter is before the courts then clearly it has not finished’. In that regard, he points to his appeal of his criminal conviction to the Court of Appeal that was heard in July 2019, as well as a second appeal he has apparently filed in recent times.
51. That Mr Taylor has been and is continuing to contest his criminal conviction would not, of itself, put the VIT on notice that he also planned to challenge the Decision to cancel his teacher registration.
52. Mr Taylor also points to the failure to record the cancellation of his registration on the VIT’s register of disciplinary action (RODA) as evidence that the VIT ‘cannot believe the matter is finished’.
53. However, there is an explanation for that. In the Decision, the panel made a determination under section 2.6.46(4)(a)(i) of the ETR Act that ‘it is not appropriate or in the public interest for any particulars relating to the hearing, including the Panel’s determination to be recorded in the [RODA]’.
54. In our view, this consideration also points against the grant of an extension of time, albeit only slightly.

Whether the respondent will be prejudiced given the delay

55. The VIT says that it will be prejudiced, and such prejudice cannot be remedied by an order for costs or damages, noting that section 126(4) of the VCAT Act prevents an extension of time being granted in such circumstances.^[36]
56. By reference to findings of the County Court in relation to Mr Taylor’s criminal prosecution, the VIT points to the ‘reputational harm and loss of confidence’ caused by Mr Taylor’s actions and the resources expended and diverted in respect of the investigation of those matters, resulting in ‘a loss of opportunity in respect of providing regulatory services to [VIT’s] stakeholders’.^[37]
57. It says that any financial loss cannot be compensated by an order for costs or damage in circumstances where the applicant is ‘currently unemployed’, ‘incarcerated in prison’ (albeit that he is now in immigration detention, rather than prison) and ‘likely has limited future employment prospects’ and ‘likely does not have the capacity to pay’.^[38]
58. Mr Taylor contends that the VIT’s submissions about the cost to it are false. He relies on Ministerial briefings in relation to his trial in which, in response to the question ‘are there financial implications that require verification by the Chief Finance Officer’, the VIT ticked ‘no’.^[39]
59. Mr Taylor also points to the adverse impact on himself, although it appears that his concerns wholly or largely relate to the consequence of the criminal proceedings (that resulted in him being held in remand and then imprisoned, and separated from his child) as opposed to any impact from the cancellation of his teaching registration.^[40]
60. We are not convinced that there is any real prejudice to the VIT of granting an extension of time. In this regard, there has not been any suggestion that any of the evidence or witnesses that the VIT would seek to rely on are no longer available.
61. While there would inevitably be a cost associated with any VCAT review, which may or may not be recoverable from Mr Taylor, that cost would be incurred even if Mr Taylor had applied within time or shortly after his release on bail.
62. In relation to any potential impact on the VIT’s reputation, that is a consequence of the systems in place at the time that Mr Taylor applied for registration some 15 years ago. It does not necessarily suggest an ongoing issue.
63. Accordingly, we consider this is a neutral factor in the overall consideration of the application under section 126.

Whether extending time may result in the unsettling of other people or established practices

64. No submissions were made by either party in respect of this consideration.
65. We note that, in Sheikh v Secretary to the Department of Justice and Community Safety,^[41] Judge Millane accepted that, where the relevant delay was significant, and the explanation for such delay is inadequate, granting an extension might create ‘an expectation that the Tribunal will routinely extend time in similar applications’.^[42]
66. While the decision to issue a negative notice in relation to a working with children application is somewhat different to the present case, the principle that extensions of time are to be considered having regard to all the circumstances, and not be or be seen to be routinely granted, is relevant.
67. However, in the present case, there is another matter of relevance.
68. We are aware that Mr Taylor has submitted numerous applications to VCAT’s Human Rights List claiming discrimination by the VIT. He has included various parties as respondents, including the VIT investigator and the panel members. One of those applications was recently dismissed on the basis that it was frivolous, misconceived or lacking in substance, or was otherwise an abuse of process.^[43]
69. We are also aware that Mr Taylor has submitted a number of freedom of information requests to the VIT and others (including the Minister for Education), and an application for judicial review in the Supreme Court of Victoria.
70. At a directions hearing held on 6 August 2020, Counsel for the VIT submitted that VIT staff were being harassed and intimidated by Mr Taylor’s many applications and requests. The presiding member was satisfied that an order should be made limiting Mr Taylor to contacting the VIT through its legal manager, rather than other staff of, or people connected with, the respondent.
71. In his submissions for the extension of time, Mr Taylor advances accusations of conspiracy, incompetence, perjury and more by staff of the VIT, the police, the courts and others.
72. While we have no doubt that Mr Taylor believes passionately that there has been a conspiracy to ‘get Taylor no matter what the cost’,^[44] there is simply no credible evidence before the Tribunal to support such accusations which in many cases border on the scandalous.
73. Of concern, Mr Taylor says that, ‘[t]his will never end for me and I will pursue every opportunity available to hold Williams [the staff member who undertook the investigation of Mr Taylor] and the VIT to account for their actions’.^[45]
74. In that sense, we consider there is a real risk of ‘unsettling other people’, who otherwise reasonably believed the matter was at an end. In our view, this an important factor which militates against granting an extension of time.

The merits of the substantial application

75. The VIT submits that Mr Taylor’s application is ‘bound to fail’.^[46] It says that ‘[g]iven the criminal processes that have occurred subsequent to the Panel’s Determination, it would be fruitless’ to allow the review to proceed.^[47]
76. The VIT observes that ‘[a]fter a full trial, a jury of the County Court has found that [Mr Taylor] obtained his registration from the [VIT] through fraud or misrepresentation’, at the criminal threshold of beyond reasonable doubt, and submits that any review ‘would inevitably lead to the same determination being made’.^[48]
77. Mr Taylor contends that, if the VIT is ‘convinced [his application] is bound to fail then they should have no concerns in allowing it to proceed’.^[49] Further, he contends that he was denied natural justice by the VIT panel, being a ‘jurisdictional error [which] invalidates the decision’.^[50]
78. In another submission, under the rubric of ‘response to section 75’,^[51] Mr Taylor identifies some 52 points of law which he suggests gives rise to a denial of natural justice and procedural fairness, which amounts to jurisdictional error.
79. Some examples include:

Point of Law 8

... the tribunal hearing referenced to the Board of Professional Engineers of Queensland v Shirtcliffe [2014] QSC 179

By referencing [that case] as the precedent the tribunal has exceeded its jurisdiction. It is applying the wrong legal test. ... Shirtcliffe used a false name and was not qualified as an engineer. I used my legal name and I am fully qualified.

...

Point of Law 15

Even if one assumes that chairperson Marilyn Mooney ‘copy and paste’ signature means she legitimately signed the decision – and legally this can’t be true nor do I believe it to be true – this only confirms one of three panel members signed.

Thus the majority of panel members have not signed and the decision is thus void.

80. In yet a further set of submissions, grouped under ‘points of law (in depth with jurisdictional errors)’,^[52] Mr Taylor identifies the following matters:

Part 4c

...

A conviction for a criminal offence does not of itself mean that a teacher’s registration will be cancelled. As the High Court pointed out in Ziems v The Prothonary of the Supreme Court of N.S.W. [1957] HCA 46; (1957) 97 CLR 279, the registration authority must determine the facts that lead to the conviction before deciding whether a person should be disqualified from being a member of their profession.

... Yet I was remanded before any conviction and I was de-registered before I was convicted.

Part 4e

...

... the [VIT] have no authority to punish me before the criminal matter is heard. I should be suspended pending a criminal conviction – as is every other teacher.

...

... the de-registration should not have happened until after a criminal conviction ...

Part 5

...

Any perceived bias or prejudice in a court of law or a tribunal would lead to the presumption that natural justice has not been adhered to and that the decision that follows is invalid and must be voided.

... a major complaint against the [VIT] is that it acts as prosecutor, judge and jury.

I note there that there is no accepted, or recorded, way an accused can challenge the appointment of panel members. This is in itself a breach of natural justice. ...

[There follows some data as to the number of VIT hearings conducted by the relevant panel members and a number of irrelevant and potentially scandalous accusations about the panel members, including for example, references to the sexuality of one of the members.]

The tribunal panel were prejudiced and biased and there is clear personal investment in continuing to please the VIT. This is confirmed by the sheer disproportionality in the number of cases heard by Ms Mooney and Ms Farrelly.

81. The problem with each of the ‘errors of law’, ‘jurisdictional errors’ and ‘breaches of natural justice’ identified by Mr Taylor is that they entirely misconceive the nature of review proceedings at VCAT. As observed by Emerton J in The Sisters Wind Farm Pty Ltd v Moyne Shire Council:^[53]

the Tribunal does not review the propriety or legality of the decision made by the initial decision-maker. Its task is to “stand in the shoes” of the original decision-maker and make the correct or preferable decision, having regard to the material before it. The review therefore takes place without any presumption as to the correctness of the decision under review.

82. To similar effect, in Garde-Wilson, Bell J observed that:^[54]

an administrative decision which might be, or is, invalid for jurisdictional error will still attract the jurisdiction of a statutory review tribunal, for the tribunal’s jurisdiction will usually depend on the fact that the decision was made, not on its validity.

83. Any jurisdictional error, if proved, may form a basis to set aside the Decision on judicial review at common law, or under the Administrative Law Act 1978 (Vic). It does not, however, demonstrate that a different decision is the correct or preferable decision.
84. To establish the latter, Mr Taylor would need to provide evidence to support a contention that either:

(a) He did not, in fact, mislead the VIT in his application to be registered as a teacher, such that there was no basis to cancel his registration as a teacher.

(b) The cancellation of his registration is not the preferable decision, having regard to the usual considerations in a professional disciplinary context, including the need (or otherwise) for general and specific deterrence, his remorse and insight and his prospects of rehabilitation.

85. Mr Taylor has not sought to argue that the Tasmanian birth certificate was true and correct, and has not provided any explanation as to why he produced it, if not to cover up his history of criminal offending.
86. In light of his conviction in the County Court,^[55] and the rejection of his appeal,^[56] it is hard to conceive how Mr Taylor could successfully contend that he did not mislead the VIT.
87. In relation to the second consideration, it is noted that the Court of Appeal found that Mr Taylor ‘displayed no remorse’ and assessed his prospects of rehabilitation as being ‘very poor’.^[57]
88. The Court of Appeal concluded that ‘a significant measure of specific deterrence’ was required, not only for punishment but also in order to ensure the community is protected.^[58] (Of course, only the latter consideration is relevant in the context of disciplinary proceedings.)
89. The Court of Appeal also indicated that there was a need for general deterrence given that Mr Taylor had frustrated the exercise of the VIT’s statutory function, which has the capacity to diminish the community’s confidence in the system of teacher regulation and the quality of the teaching profession generally.^[59]
90. Mr Taylor has not advanced any submissions, or provided any evidence, to suggest it is likely that the Tribunal would, on review, conclude that the preferable decision was other than to cancel his registration.
91. Indeed, Mr Taylor’s very extensive submissions really only focus on two things:
    • alleged issues with the processes of the VIT panel; and
    • his grievances with the people involved.
92. In relation to the former, they are (for the reasons already noted) matters that go to the legality of the decision (a matter for judicial review rather than merits review) and so are not particularly relevant to the issues at hand. Further, the reliance on these technicalities betrays a lack of insight on the part of Mr Taylor in relation to his own role in relation to the circumstances in which he finds himself.
93. Mr Taylor compounded the initial acts of dishonesty (outside of teaching and the registration process) by making an application to the VIT using a false document in order to conceal the past dishonesty. He has never demonstrated candour by disclosing, or shown genuine insight and remorse about, that past offending.
94. Mr Taylor is aggrieved by the actions of many parties, particularly Mr Williams, his ex-wife and the VIT panel. Those grievances involve him blaming others for the circumstances in which he finds himself. There is no evidence of any self-reflection by Mr Taylor as to his own role or as to any remorse on his part.
95. A teacher holds a trusted position in society.^[60] Parents trust teachers to not only competently teach their children particular subjects (such as mathematics in Mr Taylor’s case), but also instil appropriate behaviour and conduct in their children. A teacher who starts their career dishonestly does not demonstrate that they deserve to be trusted in that way; rather, the teacher represents a risk to the community and to the standing of the teaching profession at large.
96. Although Mr Taylor contends that he is an excellent teacher, and complains that the panel failed to consider his ‘fitness to teach’, this only focuses on one aspect of fitness to teach.
97. In our view, the lack of merit in his application is the strongest factor standing against the exercise of the discretion to extend time.

Consideration of fairness as between the applicant and another person who is otherwise in a like position

98. Again, this factor has not been specifically addressed in the submissions.
99. Mr Taylor does take issue with the cancellation of his registration, prior to institution of the criminal proceedings, compared with the suspensions given to other teachers who he infers are in a like position.
100. That is really a matter going to the merits of the Decision, which we have already suggested are not in favour of Mr Taylor.
101. What this consideration is really addressed to is whether other people in like situations have obtained an extension of time. We have not been pointed to any such case. We think it unlikely that one exists.

Conclusion

102. In all the circumstances, and having regard to the foregoing matters, we decline to exercise the discretion to extend the time for Mr Taylor to commence this proceeding.

^[1] A copy of the Decision is included as Attachment 4 to the Respondent’s Outline of Submissions dated 23 January 2020 (ROS).

^[2] Taylor v The Queen [2019] VSCA 162 [25].

^[3] Ibid.

^[4] Decision at page 6.

^[5] Mr Taylor’s criminal history is included at Attachment 2 to the ROS and includes convictions for obtaining property by deception in 1991 and 1994, as well as opening an account in a false name in 1998.

^[6] ROS, Attachments 5 and 7.

^[7] ROS, Attachments 6, 8 and 9.

^[8] Document entitled ‘Reasons I was unable to attend the hearing and how the outcome may have been different’, undated, paragraphs 20-23.

^[9] ROS, Attachment 11.

^[10] Submissions on extension of time (EoT Submissions), filed under cover of letter dated 2 September 2020 [9], [11] and [12].

^[11] ROS [22(a)].

^[12] ROS, Attachment 10.

^[13] ROS, Attachment 11.

^[14] Dimov v Cagorski [2017] VCAT 1055 [45]-[46].

^[15] EoT Submissions [6] (it is noted that Mr Taylor incorrectly refers to the earlier legislation as the Education and Training Act 2001).

^[16]  [2020] VSC 150. 

^[17] Ibid [3].

^[18] Ibid [91].

^[19] Ibid [124].

^[20] ETR Act, Sch 8, item 1.4.1.

^[21] This is a reference to a directions hearing before the presiding member on 6 August 2020 where a summons for the production of a copy of the Decision signed by all three panel members was set aside.

^[22] EoT Submissions [7].

^[23] Ibid.

^[24] ROS, Attachment 4.

^[25] (2007) VAR 125; [2007] VSC 225.

^[26] Ibid [62].

^[27] ROS [15].

^[28] Sheikh v Secretary to the Department of Justice and Community Safety [2019] VCAT 1056 [29].

^[29] (1984) 3 FCR 344: See, for example, Sheikh v Secretary to the Department of Justice and Community Safety [2019] VCAT 1056 [30].

^[30] EoT Submissions [25].

^[31] ROS [24].

^[32] ROS [25].

^[33] ROS [26].

^[34] EoT Submissions [26].

^[35] ROS [28].

^[36] ROS [17D] and [37].

^[37] ROS [38]-[40].

^[38] ROS [41].

^[39] EoT Submissions [38].

^[40] EoT Submissions [40]-[41].

^[41] [2019] VCAT 1056.

^[42] Ibid [49].

^[43] Taylor v Victorian Institute of Teaching et al [2020] VCAT 911.

^[44] EoT Submissions [34].

^[45] EoT Submissions [28].

^[46] ROS [29].

^[47] ROS [35].

^[48] ROS [35]-[36].

^[49] EoT Submissions [29].

^[50] Ibid.

^[51] Part 3 of the bundle of material which included the EoT Submissions.

^[52] Part 1 of the bundle of material which included the EoT Submissions.

^[53] [2012] VSC 324 [40] (citations omitted).

^[54] [2007] VSC 225 [60] (citation omitted).

^[55] Director of Public Prosecutions v Taylor [2018] VCC 2271: ROS, Attachment 3.

^[56] Taylor v The Queen [2019] VSCA 162: ROS, Attachment 1.

^[57] Ibid [141].

^[58] Ibid.

^[59] Ibid [142].

^[60] The VIT’s Code of Ethics for the Victorian teaching profession refers to teachers having a ‘unique position of trust and influence ... in our relationships with learners, parents / carers, colleagues and the community’. Available at vit.vic.edu.au.