Victorian Civil and Administrative Tribunal|2001-08-28|Before: Beach J

Al-Hakim v Arthur Robinson & Hedderwicks and Anor [2001] VCAT 1767 (28 August 2001)

Anti-Discrimination List - strike out application - VCAT Act s75

FIRST RESPONDENT: Arthur Robinson & Hedderwicks

Complaints A65/2001, A66/2001 and A208/2001 are struck out/dismissed.

1. These proceedings concern three sets of complaints made by the complainant, Dr Latif Al-Hakim, to the Equal Opportunity Commission. All three were declined by the Commission pursuant to s108(1)(a) of the Equal Opportunity Act 1995. Dr Al-Hakim requested that each be referred to the Tribunal. They were referred and are numbered A65/2001, A66/2001 and A208/2001 pursuant to the Equal Opportunity Act. The respondents applied pursuant to s75 of the Victorian Civil and Administrative Tribunal Act to strike out the complainant's claims. Pursuant to s75(1) at any time the Tribunal may summarily dismiss or strike out a proceeding, if in its opinion, the claim:-

"(a) is frivolous, vexatious, misconceived or lacking in substance; or

2. I have not found it easy to discern the substance of the complainant's contentions. Both his written submissions and oral argument were rambling in character. On any view, however, a proper understanding of the application requires an outline of the substantial background to these proceedings.

3. The complainant was originally employed by the Chisholm Institute of Technology as a lecturer in the Engineering Department on a fixed term contract. At the end of this fixed term his position was renewed for a period of one year. At the expiration of this further year the position was advertised. The complainant was not reappointed. He contended that his failure to obtain the position occurred in circumstances constituting a breach of the Equal Opportunity Act 1995.

4. Accordingly he lodged no fewer than five complaints of discrimination against Monash University (which by this stage had amalgamated with the Chisholm Institute of Technology) and various members of the staff.

5. This Tribunal required that those complaints be consolidated. They were then referred to mediation. The complaints were mediated over three separate days, namely 24 & 30 March and 7 May 1999. On the last date a document entitled "Heads of Agreement" was executed by the complainant and a representative of the first respondent.

6. Shortly thereafter on 15 May 1999 the complainant applied to this Tribunal to refer the matters for further mediation. Apparently, he contended that he was not bound by the document executed on 7 May.

7. This promoted an application by the respondents for orders that the consolidated application be permanently stayed. Presumably this application was based upon a claim that the settlement reached on 7 May 1999 constituted the conclusion of the consolidated complaint.

8. In a decision handed down by Deputy President McKenzie on the 30 July 1999, this Tribunal did permanently stay those proceedings. She accepted that they had been legitimately settled on 7 May 1999. She also ordered the complainant to execute the formal deed of release which had been foreshadowed by clause 8 of the Heads of Agreement.

9. That agreement also provided that upon execution of the deed of release the first respondent would reappoint the complainant to the honorary position of Research Associate until 31 December 2001. As I understand it, at the time the complainant held that position for a term that would expire in December 1999.

10. The complainant sought to appeal from the decision of Deputy President McKenzie. He failed before Master Wheeler and again before Justice Beach. Notwithstanding the end of his attempts to re-open the issues resolved by the settlement of 7 May 1999, he continued to refuse to execute the deed of release. That refusal was ongoing until it was executed in an histrionic manner in the course of his address before me.

11. Notwithstanding the complainant's refusal to execute the deed of release the first respondent appointed him to a further term as a research assistant on 12 January 2000. His earlier term had expired shortly before. Despite that appointment and the complainant's failure to overturn the settlement of 7 May 1999, he continued to decline to sign the deed of release. Ostensibly for this reason, by letter from the second respondent to the complainant of 16 February 2000, the complainant was informed that his position as research associate would be cancelled as from 12 noon on Friday 18 February 2000. The terms of that letter are important, I will reproduce it in full:-

"We refer to the Orders of the Victorian Civil and Administrative Tribunal (the Tribunal) dated 30 July 1999 and our letter of 30 July 1999.

As you are aware, on 30 July 1999, the Tribunal ordered that the Settlement Agreement in relation to the above complaints is binding on the parties. Since 30 July 1999, Monash University has been willing and able to comply with the terms of the Settlement Agreement. The Settlement Agreement requires you to execute the Deed of Release provided to you on 30 July 1999. You have refused to execute this Deed of Release.

As a gesture of good faith, on 12 January 2000 your appointment as an Honorary Research Associate in the Department of Mechanical Engineering was renewed until 31 December 2000 by the Faculty of Engineering. This renewal was not required to be made by either the faculty or Monash University as you refused to execute the Deed of Release. As you continue to refuse to execute the Deed of Release, your appointment to the position of Honorary Research Associate will be cancelled by the Faculty of Engineering from 12.00 noon on Friday, 18 February 2000.

Upon execution of the Deed of Release, Monash University will comply with all obligations under the Deed of Release and the Settlement Agreement including payment to you of settlement moneys and reappointment to the position of an Honorary Research Associate."

12. I have not found it easy to identify the substance of the complainant's contention from the original written complaints, his written submissions or his oral argument. However, my understanding is that proceedings A65 and 66 relate essentially to the cancellation of the complainant's position as honorary research associate. The University is the respondent in the original application and the solicitors whose letter communicated that decision by the University is the respondent in the second application.

13. The alleged liability of the second respondent seems to arise out of a claim that in terminating the complainant's position the University was somehow following "instructions" given by the solicitors. There is absolutely no foundation for this contention. It appears to be completely misconceived.

14. Complaint 208/2001 is based upon the circumstances in which the complainant was deprived of continuing tenure of his office and his subsequent exclusion from Monash University. The first respondent's justification for the termination of the complainant's entitlement to occupy an office and his exclusion from the University is the termination of his position as research associate in the circumstances to which I have already referred.

15. One further episode in the history should be referred to. In December 1999 and January 2000, the complainant had pursued a position as lecturer in the Department of Mechanical Engineering at Monash University. He was not successful. On 14 February 2000 he wrote to this Tribunal complaining that he had not been successful and that the first respondent's failure to appoint him constituted breaches of s13 and s97 of the Equal Opportunity Act. As I understand it, his contention was that the selection process for that position had been deficient and not in accordance with the requirements of the University handbook. He also claimed that the first respondent had improperly failed to furnish him with a statement of reasons as to why his application had been unsuccessful. Further he contended that the first respondent had improperly failed to consider his complaint of victimisation. He sought orders that this Tribunal refer these complaints to the Equal Opportunity Commission for investigation. That application came before Senior Member Dr G.P. Lyons. In a decision dated 27 October 2000, Dr Lyons refused the application.

16. It is with this background that the Respondents now contend that these proceedings are vexatious, misconceived and lacking in substance. Not unnaturally, the claim of vexatiousness arises out of the extensive history to which I have briefly alluded. In Cabot v City of Keilor [1994] VicRp 14; 1994 1 VR 220 at 223, 224 Gobbo J. applied Attorney General v Wentworth 1998 14 NSWLR 481; and held that proceedings were vexatious if they were instituted:-

(i) with the intention of annoying or embarrassing the party against whom they are brought;

(iii) irrespective of the motive, they were obviously untenable or manifestly groundless.

17. It is the contention of the respondents here that these proceedings have been commenced with the intention of annoying and embarrassing the University and have been brought for the collateral purpose of circumventing the settlement agreement achieved on 7 May 1999. I do not accept these contentions. It is not always easy to see the motive behind repeated applications. But having perused the voluminous material filed by Dr El-Hakim and having heard him address the Tribunal for a significant period, I am of the opinion that his principal motive is a passionately held belief that he has been ill treated and overlooked for positions for which he was the most qualified applicant. It follows that I could not be satisfied that the explanation for these particular applications is that Dr El-Hakim wishes to annoy or embarrass the respondents or that he has some collateral purpose.

18. The remaining limb under which the respondents proceed is the contention that the proceedings are obviously untenable and manifestly groundless. For present purposes I can see no difference between that ground and the other grounds relied upon arising out of the terminology of s75(1) namely that the proceedings are "misconceived or lacking in substance."

19. In my opinion this contention is clearly correct. As Ms Mortimer on behalf of both respondents submitted, there is simply no evidence nor any suggestion that the complainant will be ever in a position to produce evidence supporting his contention that the reason for the cancellation of his honorary appointment was anything other than the reason given in the letter of 16 February or the letter of the University of 21 March 2000, namely, the failure of the complainant to execute the deed of release. Any lingering doubt on this question seems to me to be absolutely resolved by the last paragraph of the letter of 16 February 2000. I have already set it out but for emphasis, I repeat it:-

"Upon execution of the deed of release, Monash University will comply with all obligations under the deed of release and the settlement agreement including payment to you of settlement monies and reappointment to the position of Honorary Research Associate."

As I have said there is simply no basis for attributing any motive to the first respondent other than that which it has given. In the light of the offer to reappoint the complainant to the position upon the execution of the deed of release, it would require cogent evidence indeed to suggest that the first respondent was motivated by anything other than the reason that it gave. Not only has the complainant failed to produce such cogent evidence but he has completely failed to provide any basis for concluding that he might be ever be able to do so.

20. As he emphasised in his oral submissions, for these purposes he is not under an obligation to present the evidence that he would need to successfully prosecute his complaint. What he must do however, is to at least give an indication that such evidence exists. In the course of his submissions the complainant indicated that he wished to be able to call his witnesses and put everything before the Tribunal. My strong impression is that what the complainant wished to do was to subpoena all personnel involved and have the Tribunal conduct some sort of inquiry into the matter generally. This is not a course that the Tribunal would be prepared to undertake, particularly when there is no justification for suspecting that a breach of the Act has occurred.

21. The submissions on behalf of the present respondents were more comprehensive than those to which I have referred to in these reasons. My view is that the position here is so clear cut it is not necessary to canvas the matter further.

22. With regard to the second respondent as I have already said the complaint is based upon no more than the form of communication employed on 16 February 2000. The complaint is totally without foundation.

23. The respondents are entitled to the orders which they seek. ie. that complaints A65/2001, A66/2001 and A208/2001 are struck out/dismissed.

Opportunity Act 1995

Al-Hakim v Arthur Robinson & Hedderwicks and Anor [2001] VCAT 1767

At a glance

Court

Decision date

Before

Source

Judgment (37 paragraphs)

Al-Hakim v Arthur Robinson & Hedderwicks and Anor [2001] VCAT 1767 (28 August 2001)

Parties

Legislation Cited (1)