14 State Electricity Commission of Victoria v Rabel & Anor[18] concerned the review of a decision by the Equal Opportunity Board pursuant to s 44C(1) of the Equal Opportunity Act 1984 (now repealed)[19] to summarily dismiss a complaint on the basis that it was 'frivolous, vexatious, misconceived or lacking in substance.' Phillips JA (with whom Ormiston and Tadgell JJA agreed) held that, by confining the complainant to his written materials in ascertaining whether it was 'frivolous, vexatious, misconceived or lacking in substance', the Board fell into error.[20] That said, Phillips JA considered that, if a complainant indicates that the whole of their case is contained in the documentary material put before the Board (here VCAT), then the Board is entitled to determine the matter by asking whether, on all of that material before it, the complainant will make out his or her case if the proceeding is allowed to continue.[21]
15 The current provision corresponding with that under consideration in Rabel is s 109 of the Act - not s 75 of the VCAT Act upon which VCAT relied in this instance to summarily dismiss the complainant's claim. Nonetheless, I observe that in Norman v Australian Red Cross Society,[22] VCAT held that the considerations of the Court in Rabel applied to s 75 of the VCAT Act.
16 Despite VCAT's declaration that it was taking the complainant's basic allegations as primarily made out, in my view there is no doubt that VCAT's reasons presuppose a certain unfavourable position as to the state of the evidence that the complainant was likely to lead in order to make out his claim. This raises the question of whether VCAT transgressed the principle in Rabel. It is apparent that the complainant would in all likelihood have lead evidence beyond just documentary materials.
17 A more general question of law that requires clarification for these purposes is the use and operation of s 75 of the VCAT Act with respect to matters referred to VCAT under the Act. In all the circumstances I discern that there is potential for evidence beyond the documentary form. It seems to me that so much is at least arguable for present purposes.
18 To use the words of Phillips JA in Hulls, the potential for injustice is more readily discerned in this instance because VCAT's order was final in its effect.[23] It denied the complainant the opportunity to have his full claim heard.
19 On this basis, I would grant leave for the complainant to appeal.