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[2008] VSC 177
Supreme Court of Victoria
2008-05-28
Kyrou J
Original judgment source is linked above.
Appeal under s 148, Victorian Civil and Administrative Tribunal Act 1998 - summary dismissal of proceeding under s 75 of Act - whether proceeding frivolous, vexatious, misconceived or lacking in substance or otherwise an abuse of process.
Complaint alleging impairment discrimination under s 42, Equal Opportunity Act 1995 - vicarious liability under s 102 of Act - meaning of "services" in s 4 of Act.
Judicial immunity - immunity of a judge of the Supreme Court - application of immunity to registry staff of the Magistrates' Court under s 24, Magistrates' Court Act 1989.
Natural justice - failure of Victorian Civil and Administrative Tribunal to give notice of intention to rely on particular ground for summary dismissal - whether error of law.
Preliminary issue - whether existence of s 109, Equal Opportunity Act 1995 precludes an application under s 75, Victorian Civil and Administrative Tribunal 1998.
1 This is an appeal under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ("VCAT Act") from an order made on 22 August 2007 by the Victorian Civil and Administrative Tribunal ("Tribunal"), constituted by a Deputy President, summarily dismissing Dr Towie's proceeding against the State of Victoria. The Tribunal's order was as follows:
2 Dr Towie's complaint against the State of Victoria acting through the Department of Justice and the Magistrates' Court was first made to the then Equal Opportunity Commission ("Commission"). In essence, the complaint was that Dr Towie suffered from severe high frequency deafness and that his request for a graphic equaliser and headphones (which I will refer to as "the equipment"), to enable him to follow proceedings before the Magistrates' Court in which he was a party, was refused in breach of the Equal Opportunity Act 1995 (Vic) ("EO Act"). Conciliation by the Commission failed to resolve the complaint and it was referred to the Tribunal at Dr Towie's request.
3 For the reasons set out in this judgment, I have concluded that the Tribunal erred in law in summarily dismissing Dr Towie's proceeding under s 75 of the VCAT Act, and have decided to allow the appeal.
4 Dr Towie suffers from a severe high frequency hearing impairment. In 2005, he was a party in proceedings in the Magistrates' Court at Broadmeadows and Melbourne. Dr Towie claims that, before the hearing of the proceedings, he wrote to the Department of Justice requesting that the equipment be provided to him. He also claims that he made verbal requests for the provision of the equipment, to the registry staff at the Magistrates' Court before the hearings commenced. Dr Towie claims that the hearings occurred at the Magistrates' Court at Broadmeadows in February, May and July 2005, and at Melbourne in October 2005. It appears that Dr Towie was legally represented in the Magistrates' Court proceedings.
5 The equipment was not provided to Dr Towie in response to his requests. Dr Towie claims that, as a result, the hearings of the proceedings before the Magistrates' Court were prolonged because material had to be repeated to him. He claims that the prolonging of each hearing meant that he incurred more fees for legal representation and was absent from his work for a longer period. He claims that he was so upset by what happened that he was unable to effectively present his case. He claims that he has suffered financial loss, embarrassment and humiliation.
6 In August 2006, Dr Towie lodged with the Commission a complaint under the EO Act, claiming that he was discriminated against in the provision of goods or services on the basis of impairment. The complaint was against the State of Victoria acting through the Department of Justice and the Magistrates' Court. The particulars of claim alleged that the failure to provide him with the equipment constituted discrimination in the provision of goods or services, but did not describe the "services" that were the subject of the alleged discrimination.
7 The Commission did not make a decision under s 108 of the EO Act to decline to entertain the complaint on the grounds that the complaint "is frivolous, vexatious, misconceived or lacking in substance". Rather, the Commission referred the complaint to conciliation. Conciliation was unsuccessful. Dr Towie then exercised his right to have the complaint referred to the Tribunal under s 117 of the EO Act. The complaint was referred to the Tribunal in January 2007.
8 The State did not apply to the Tribunal under s 109 of the EO Act, prior to the referral of the complaint to the Tribunal, to have the complaint or any part of the complaint struck out on the grounds that it "is frivolous, vexatious, misconceived or lacking in substance". Rather, on 28 February 2007, the State applied in writing to the Tribunal for an order summarily dismissing or striking out the complaint pursuant to s 75 of the VCAT Act. The State's application set out the following grounds:
9 Mr Burke, who appeared for the State before me, informed the Court that the Tribunal made an order that the State's application under s 75 of the VCAT Act be dealt with on the papers and that the parties file written submissions. The State filed written submissions dated 30 March 2007 in support of the five grounds for the application. Dr Towie filed written submissions dated 4 May 2007 in response to the State's submissions on the five grounds. Mr Burke informed me that the State then filed a supplementary written submission, but this supplementary submission was not made available to me. The State's submissions did not allege that the complaint was doomed to fail because it did not identify the "services" which were the subject of the alleged discrimination under the EO Act. The allegation that the complaint was unsustainable in law was based on the ground of immunity. Dr Towie's submissions referred to the discussion of "service" in IW v City of Perth [1] but only in the context of addressing the ground of immunity.
10 The Tribunal made the order set out in paragraph 1 of this judgment on 22 August 2007. It was common ground before me that the Tribunal made the order on the basis of the written submissions, to which I have referred, without receiving any further submissions from the parties, written or oral. It was also common ground that, insofar as the Tribunal based its order on any ground that did not form part of the State's application, the Tribunal did not give any advance notice to Dr Towie of its intention to rely on such a ground.
11 The first ground for the State's application (namely, that the Magistrates' Court is not a legal person) did not require consideration by the Tribunal because the complainant had agreed to remove the Magistrates' Court as a respondent to the proceeding. The Tribunal decided that the alleged inadequate particularisation of the complaint did not justify an order under s 75 of the VCAT Act and said that "[i]f the complaint is inadequately particularised, this can be cured by an order or direction for further particulars of complaint" (paragraph 27 of the Tribunal's reasons). The Tribunal also decided that Dr Towie's complaint was not an attempt to relitigate the case of Towie v Victoria.[2] In that case, Bowman VP struck out Dr Towie's proceeding against a deputy registrar of the Broadmeadows Magistrates' Court alleging discrimination by her, on the basis that the deputy registrar, and consequently the State of Victoria, had immunity under s 24 of the Magistrates' Court Act 1989 (Vic) ("MC Act").
12 The Tribunal's reasons for making its order will be discussed in detail later in this judgment. For present purposes, they may be summarised as follows:
(a) under s 24 of the MC Act, read together with s 14 of that Act, the registry staff of the Magistrates' Court have immunity from claims under the EO Act, and as they cannot breach the EO Act, the State cannot be vicariously liable for such a breach (paragraph 16 of the Tribunal's reasons);
(b) the "service" in respect of which Dr Towie alleged discrimination was "so vague, undefined and non-specific that ... it is not a service at all" (paragraph 22 of the Tribunal's reasons);
(c) notwithstanding that Dr Towie was not seeking to relitigate the case of Towie v Victoria,[3] that case was "so clearly correct that the present claim should not reasonably have been made" (paragraph 28 of the Tribunal's reasons);
(d) the complaint was an abuse of process (paragraph 29 of the Tribunal's reasons); and
(e) the claims in the complaint could not be cured by amendment and should be dismissed (paragraph 30 of the Tribunal's reasons).
13 This appeal is brought by leave granted by a Master on 26 November 2007. The notice of appeal dated 30 November 2007 lists the following questions upon which the appeal is brought:
(a) under s.24 of the Magistrates' Court Act the relevant court staff have a protection or immunity from claims under the EO Act, and -
(b) by reason of (a) those staff cannot breach the EO Act, and the State cannot be vicariously liable for such a breach?
14 Before me, Mr Nash QC, who appeared with Mr Hancock on behalf of Dr Towie, conceded that question 1 "take[s] it nowhere" and that question 2 "is really the essential point there". Mr Nash also conceded that question 3 was subsumed within question 2. In relation to question 5, Mr Nash originally submitted, in reliance on Bell Corp Victoria Pty Ltd v Stephenson,[4] that the denial of natural justice was constituted by the failure of the Tribunal to hear the proceeding on its merits and to consider the alternative remedy of making a self-executing order. He subsequently abandoned reliance on that case. Instead, he submitted that the breach of natural justice was constituted by the Tribunal of its own motion relying on there not being a "service", notwithstanding that the State did not rely on or make any submissions on this point, and without the Tribunal giving Dr Towie any prior notice of the Tribunal's intention to do so.
15 Although Dr Towie made separate requests for the equipment to the Department of Justice and later to the registry staff of the Magistrates' Court, the Tribunal, in paragraph 9 of its reasons, said that:
[t]he State's submissions assume (and Dr Towie does not deny) that the requests were dealt with by staff of the Department of Justice stationed at the Broadmeadows Magistrates' Court and the Melbourne Magistrates' Court, occupying positions either as principal registrar, registrar or deputy registrar of the Court.
16 Notwithstanding that Dr Towie's complaint was in respect of the provision of "goods or services", the Tribunal only considered the question of services. Mr Nash informed me that Dr Towie's complaint proceeded only in respect of alleged discrimination in the provision of services and that it was not part of his case that there was discrimination in the provision of goods.
17 Dr Towie's complaint alleged a contravention of s 42 of the EO Act. Section 42 (which is in Part 3 of the EO Act) provides as follows:
42 Discrimination in the provision of goods and services
(1) A person must not discriminate against another person -
(a) by refusing to provide goods or services to the other person;
(b) in the terms on which goods or services are provided to the other person;
(c) by subjecting the other person to any other detriment in connection with the provision of goods or services to him or her.
(2) Subsection (1) applies whether or not the goods or services are provided for payment.
18 The expression "person" is defined in s 4(1) of the EO Act as including an unincorporated association and, in relation to a natural person, as meaning a person of any age. Section 5 provides that the Act binds the Crown in right of Victoria. Section 4(1) defines services as follows:
services includes, without limiting the generality of the word -
(a) access to and use of any place that members of the public are permitted to enter;
(b) banking services, the provision of loans or finance, financial accommodation, credit guarantees and insurance;
(c) provision of entertainment, recreation or refreshment;
(d) services connected with transportation or travel;
(e) services of any profession, trade or business, including those of an employment agent;
(f) services provided by a government department, public authority, State owned enterprise or municipal council -
but does not include education or training in an educational institution.
19 In order to succeed in a claim of discrimination under the EO Act, the complainant must make out a claim of either direct or indirect discrimination. In this regard, ss 7, 8 and 9 of the EO Act provide as follows:
(1) Discrimination means direct or indirect discrimination on the basis of an attribute.
(2) Discrimination on the basis of an attribute includes discrimination on the basis -
(a) that a person has that attribute or had it at any time, whether or not he or she had it at the time of the discrimination;
(b) of a characteristic that a person with that attribute generally has;
(c) of a characteristic that is generally imputed to a person with that attribute;
(d) that a person is presumed to have that attribute or to have had it at any time.
(1) Direct discrimination occurs if a person treats, or proposes to treat, someone with an attribute less favourably than the person treats or would treat someone without that attribute, or with a different attribute, in the same or similar circumstances.
(2) In determining whether a person directly discriminates it is irrelevant -
(a) whether or not that person is aware of the discrimination or considers the treatment less favourable;
(b) whether or not the attribute is the only or dominant reason for the treatment, as long as it is a substantial reason.
(1) Indirect discrimination occurs if a person imposes, or proposes to impose, a requirement, condition or practice -
(a) that someone with an attribute does not or cannot comply with; and
(b) that a higher proportion of people without that attribute, or with a different attribute, do or can comply with; and
(2) Whether a requirement, condition or practice is reasonable depends on all the relevant circumstances of the case, including -
(a) the consequences of failing to comply with the requirement, condition or practice;
(b) the cost of alternative requirements, conditions or practices;
(c) the financial circumstances of the person imposing, or proposing to impose, the requirement, condition or practice.
(3) In determining whether a person indirectly discriminates it is irrelevant whether or not that person is aware of the discrimination.
20 Sections 102 and 103 of the EO Act provide as follows:
102 Vicarious liability of employers and principals
If a person in the course of employment or while acting as an agent -
(b) engages in any conduct that would, if engaged in by the person's employer or principal, contravene a provision of Part 3, 5 or 6 -
both the person and the employer or principal must be taken to have contravened the provision, and a complaint about the contravention may be lodged against either or both of them.
An employer or principal is not vicariously liable for a contravention of a provision of Part 3, 5 or 6 by an employee or agent if the employer or principal proves, on the balance of probabilities, that the employer or principal took reasonable precautions to prevent the employee or agent contravening the Act.
21 Sections 108 and 109 of the EO Act provide as follows:
108 Commission may decline to entertain some complaints
(a) is frivolous, vexatious, misconceived or lacking in substance; or
(c) relates to an alleged contravention of the Act that took place more than 12 months before the complaint was lodged -
the Commission may decline to entertain the complaint by notifying the complainant and the respondent in writing within 60 days after the day the complaint was lodged.
(1A) Before declining to entertain a complaint, the Commission may, by written notice, require any person -
(a) to attend before the Commission, or a member or member of staff of the Commission, for the purpose of discussing the subject matter of the complaint at a reasonable time set out in the notice;
(b) to produce any documents specified in the notice on or before a reasonable time set out in the notice.
(2) Within 60 days after receiving the Commission's notice declining to entertain a complaint, the complainant, by written notice, may require the Commission to refer the complaint to the Tribunal for hearing under Division 7.
(3) The Commission must comply with a notice under subsection (2).
109 Respondent may apply to Tribunal to strike out complaint or any part of complaint
(1) A respondent may apply in writing to the Tribunal to have a complaint or any part of it struck out on the grounds that it is frivolous, vexatious, misconceived or lacking in substance.
(a) before the respondent has been given a notice to attend under section 114(2)(a) or has otherwise been notified by the Commission or the Chief Conciliator of a date for conciliation; or
(b) after the conciliation has been completed but before the complaint has been referred to the Tribunal.
(3) The Tribunal must begin to hear the application within 14 days after receiving it and must determine it as expeditiously as possible.
(4) The complainant is a party to a proceeding on an application under subsection (1).
22 Sections 14 and 24 of the MC Act provide as follows:
A magistrate has, in the performance of his or her duties as a magistrate, the same protection and immunity as a Judge of the Supreme Court has in the performance of his or her duties as a Judge.
The principal registrar, a registrar and a deputy registrar have, in the performance of their duties as such, the same protection and immunity as a magistrate has in the performance of his or her duties as a magistrate.
23 In this judgment, I refer to the principal registrar, registrars and deputy registrars collectively as "registry staff".
75 Summary dismissal of unjustified proceedings
(1) At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion -
(a) is frivolous, vexatious, misconceived or lacking in substance; or
(2) If the Tribunal makes an order under subsection (1), it may order the applicant to pay any other party an amount to compensate that party for any costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding.
(4) An order under subsection (1) or (2) may be made on the application of a party or on the Tribunal's own initiative.
(5) For the purposes of this Act, the question whether or not an application is frivolous, vexatious, misconceived or lacking in substance or is otherwise an abuse of process is a question of law.
25 Section 148 of the VCAT Act provides that where the Court of Appeal or the Trial Division of the Supreme Court, as the case requires, gives leave to appeal, a party to a proceeding before VCAT may appeal, on a question of law, from an order of the Tribunal in the proceeding.
26 An appeal under s 148 is in the nature of judicial review in the original jurisdiction of the Supreme Court.[5]
27 The current appeal is from the Tribunal's order under s 75 of the VCAT Act as set out in paragraph 1 of this judgment. The question of whether the Tribunal was correct in summarily dismissing the proceeding under s 75 is a question of law.[6] Before me, counsel for both parties agreed that the above question arises implicitly in the appeal, even though it was not expressly set out in the notice of appeal.
28 In State Electricity Commission v Rabel,[7] the Court of Appeal considered the principles applicable to an application for the striking out of a complaint under s 44C of the old Equal Opportunity Act 1984 (Vic). That section was in similar but not identical terms to s 75 of the VCAT Act. In Forrester v AIMS Corporation,[8] Kaye J referred extensively to Rabel in identifying the principles applicable to an application under s 75 of the VCAT Act.
29 It is clear that a high threshold must be met before the VCAT can exercise its power under s 75 of the VCAT Act to summarily dismiss or strike out all, or any part, of a proceeding, and that the VCAT should only exercise this power with great care.
30 In Forrester, Kaye J held, after considering Rabel, that the respondent to a complaint has an onus of showing "that the complaint is undoubtedly hopeless".[9] The High Court has held that "[t]he power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried".[10] In Lay v Alliswell Pty Ltd,[11] Balmford J accepted that the High Court's comments in Fancourt are applicable to applications under s 75 of the VCAT Act. I respectfully agree with those statements of the applicable principles. The Tribunal's statement of the relevant principles in paragraph 5 of its reasons for decision is consistent with the above cases.
it is not for the Tribunal, at least at an interlocutory stage of proceedings, to conduct a pre-trial assessment of the complainant's evidence to determine whether the complainant can prove his case. Such an approach is incorrect and inappropriate, at least unless the complainant clearly concedes that the material he has placed before the Tribunal contains the whole of the complainant's case.
32 There is an overlap between the grounds for summarily dismissing or striking out all, or any part, of a proceeding under s 75 of the VCAT Act - namely, that the proceeding or part of the proceeding is "frivolous, vexatious, misconceived or lacking in substance" (s 75(1)(a)) or that it is "otherwise an abuse of process" (s 75(1)(b)). For reasons that will become apparent, it is not necessary for me to discuss what constitutes an abuse of process for the purposes of s 75(1)(b).
33 As a preliminary issue, Mr Nash submitted that s 109 of the EO Act constitutes an exclusive basis for a respondent to a complaint under the EO Act to seek to summarily strike out all or any part of the complaint. He submitted that, as s 109 imposes tight timeframes for an application being made to the Tribunal to strike out the complaint or a part of the complaint, a respondent who wishes to strike out the complaint must resort to s 109 and cannot apply to the Tribunal for an order under s 75 of the VCAT Act striking out or dismissing the proceeding. Mr Nash submitted, as a preliminary point, that the Tribunal in this case should not have made an order under s 75 of the VCAT Act because the State had the right to apply under s 109 of the EO Act and had not availed itself of that right.
34 Mr Nash was not able to point to any statutory provision that states that s 75 of the VCAT Act cannot apply where a respondent had the right to apply under s 109 of the EO Act. Nor was he able to refer to any case directly on point. He relied, by analogy, on the case of Kuek v Victoria Legal Aid.[14] In that case, the Court of Appeal held that, unless there are exceptional circumstances, where a party to a proceeding before the Magistrates' Court has a right of appeal under s 109 of the MC Act in respect of an alleged error of law, that party cannot seek judicial review of the alleged error of law under Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic). Mr Nash also relied on Victoria v Turner.[15]
35 Mr Burke submitted that the Tribunal had power to make an order under s 75 of the VCAT Act notwithstanding that the State also had a right to make an application under s 109 of the EO Act. He referred to s 44 of the VCAT Act, which provides that, in exercising its original jurisdiction, the Tribunal has the functions conferred on it by or under the enabling Act (in this case, the EO Act), as well as any functions conferred on it by or under the VCAT Act and any regulations and rules made under the VCAT Act.
36 I agree with Mr Burke that the existence of the Tribunal's power under s 109 of the EO Act does not displace the Tribunal's power under s 75 of the VCAT Act. The scope of the power of the Tribunal under s 109 of the EO Act is not the same as that under s 75 of the VCAT Act. First, s 109 of the EO Act empowers the VCAT to strike out the complaint or part of the complaint, whereas s 75 of the VCAT Act empowers the Tribunal to strike out or dismiss all or any part of the proceeding. Second, the grounds set out in s 109 of the EO Act are that the complaint is "frivolous, vexatious, misconceived or lacking in substance" whereas s 75 of the VCAT Act empowers the Tribunal to summarily dismiss or strike out all or any part of the proceeding if it is of the opinion that the proceeding is "frivolous, vexatious, misconceived or lacking in substance" or "is otherwise an abuse of process". Third, s 75 of the VCAT Act contains consequential provisions regarding compensation and costs, which do not appear in s 109 of the EO Act. Fourth, the power in s 75 of the VCAT Act can be exercised at any stage of a proceeding whereas an application under s 109 of the EO Act must be made before the complaint is referred to the Tribunal.
37 Acceptance of Mr Nash's submission would result in proceedings under the EO Act being excluded from the Tribunal's power in s 75 of the VCAT Act. Neither s 75 of the VCAT Act nor s 109 of the EO Act provides for such an exception. Indeed, an endnote to s 109(2)(b) of the EO Act states: "Section 75 of the Victorian Civil and Administrative Tribunal Act 1998 allows the Tribunal to strike out certain claims after they have been referred to it". This endnote recognises that s 75 of the VCAT Act can be utilised notwithstanding the existence of s 109 of the EO Act.
38 The case of Kuek dealt with different rights and different statutory provisions from those in the current case and is distinguishable. Likewise, the case of Turner dealt with a different issue altogether, namely whether the document in question constituted an order under s 148 of the VCAT Act.
39 Accordingly, I reject Mr Nash's submission that the fact that the State could have made an application under s 109 of the EO Act precluded it from applying to the Tribunal for an order under s 75 of the VCAT Act.
40 One of the key reasons for the Tribunal's decision to summarily dismiss the proceeding under s 75 of the VCAT Act was the Tribunal's finding that the "service" in respect of which Dr Towie alleged discrimination was "not a service at all". As I have said in paragraph 9 of this judgment, the State did not rely on this ground in its application under s 75 of the VCAT Act, and nor did the State refer, in its written submissions to the Tribunal in support of the application, to any defect in Dr Towie's complaint in relation to the service alleged. The Tribunal reached its decision on the papers, without any further communication with the parties.
41 The above circumstances meant that Dr Towie did not have any prior notice that, in deciding the application under s 75 of the VCAT Act, the Tribunal would consider the question whether the service alleged was a service for the purposes of the EO Act. Dr Towie was therefore not told of the issues that the Tribunal would consider in relation to this question and was not given any opportunity to make submissions to the Tribunal on those issues before the Tribunal made its adverse decision.
42 Further, the Tribunal decided that Dr Towie's claims in his complaint were so hopeless that they could not be cured by amendment. This finding of the Tribunal is ambiguous, as it is not clear whether it refers to the alleged service or to other matters discussed in the Tribunal's decision. Nevertheless, it is clear that the issue of amendment was not raised by the Tribunal with Dr Towie before the Tribunal made its decision. Accordingly, Dr Towie was not given an opportunity to make submissions on possible amendments to the complaint or further particularisation of the complaint.
43 The Tribunal is bound by the rules of natural justice.[16] Mr Burke conceded that the rules of natural justice apply to the Tribunal's consideration of an application under s 75 of the VCAT Act. However, Mr Burke submitted that the content of the rules of natural justice varies according to the circumstances. He said that, in a case such as this, which did not have serious consequences, such as the deprivation of livelihood that was involved in the case of Garde-Wilson v Legal Services Board,[17] the content of the rules of natural justice was reduced in scope. I agree that the content of the rules of natural justice will vary according to the circumstances. However, in the case of a summary dismissal under s 75 of the VCAT Act, the Tribunal is obliged to give prior notice to the complainant of any material matters that the Tribunal proposes to rely upon of its own motion in support of its decision if those matters have not been raised by the respondent to the complaint who has made the application under s 75 of the VCAT Act.[18] The Tribunal's failure to do so in the circumstances of this case, in my opinion, constitutes a breach of the rules of natural justice.
44 In Luck v Renton,[19] Maxwell P and Harper AJA commented: "The question whether the rules of natural justice were breached is, of course, a question of law on which an appeal from the Tribunal [under s 148 of the VCAT Act] can (subject to a grant of leave) properly be brought".
45 The view expressed by the Court of Appeal in Luck v Renton accords with a series of other cases decided by this Court. In Wright v Victorian Civil and Administrative Tribunal,[20] Gillard J rejected the argument that denial of natural justice is not available as an avenue of appeal under s 148 of the VCAT Act, commenting:
there are no words in s 148 or in any other part of the Act which supports such a contention. The right to appeal is with leave in relation to a question of law and there are no words in the section or the [VCAT] Act which restrict the generality of those words.
46 Further, this Court has assumed on numerous occasions that whether the Tribunal failed to comply with the requirements of natural justice and procedural fairness is a question of law.[21]
47 By contrast, in PRA v MA,[22] Batt JA (with whose proposed orders Ormiston and Buchanan JJA agreed) commented in passing that, during oral argument, the Court had pointed out to counsel that "it was uncertain whether a denial of procedural fairness gave rise to a question of law for the purposes of s 148(1) of the VCAT Act". It should also be noted that, in Sherman v Watson,[23] Phillips JA (with whom Buchanan JA agreed) described a concession, made by the respondent in that proceeding for the purposes of that proceeding only, that a denial of natural justice by the Tribunal would constitute an error of law sufficient to ground an appeal under s 148 of the VCAT Act as "a significant concession".
48 In the current case, the State did not submit, either in its written submissions or in oral argument before me, that there is any uncertainty about whether the question of whether there has been a denial of natural justice is a question of law, or that it is inappropriate for the Court to proceed on the basis that that question is a question of law for the purposes of s 148 of the VCAT Act. I also note that the positive statement to that effect which was made by the Court of Appeal in Luck v Renton was made after Sherman v Watson and PRA v MA were decided. Accordingly, I proceed on the basis that the question of whether the Tribunal denied a party natural justice is a question of law for the purposes of an appeal under s 148 of the VCAT Act.
49 In Stead v State Government Insurance Commission,[24] the High Court noted that:
an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.
... not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.
50 The Court also went on to sound a cautionary note: "It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact".[25]
51 In Dona Homes (Vic) Pty Ltd v Stevens,[26] Habersberger J referred to Stead and was content to proceed on the basis of the parties' acceptance that an appeal to the Court under s 148 of the VCAT Act will succeed on the ground that natural justice has not been accorded to a person by the Tribunal "only where it is demonstrated that a denial of procedural fairness by the Tribunal could have caused a real injustice to the appellant by affecting the outcome of the proceeding".
52 Having regard to my conclusion in paragraphs 78 and 79 of this judgment, in relation to the question of services, that it is not obvious that Dr Towie's complaint is inevitably doomed to fail, I am not satisfied that the denial of natural justice could not have affected the outcome of the State's application for summary dismissal, or that setting aside the Tribunal's order to enable the Tribunal to hear the proceeding on its merits would be futile. I am therefore of the view that the Tribunal's error of law constituted by its breach of the rules of natural justice warrants the setting aside of the Tribunal's order.
53 In its reasons for decision, the Tribunal said the following in relation to immunity and vicarious liability:
54 Mr Nash submitted that the Tribunal's conclusion that the State could not be liable because of the immunity conferred by s 24 of the MC Act was flawed for three reasons. First, the immunity conferred on registry staff is limited to the exercise by them of their judicial function and administrative acts which directly relate to their exercise of that function. He submitted that in this case the registry staff were not performing such functions and therefore no immunity applied. Second, registry staff are not immune where they breach a statute because acting unlawfully is not within the performance of the registry staff's duties. Accordingly, they are not immune from being the subject of a complaint under the EO Act where they breach the EO Act. Third, the immunity of a judge of the Supreme Court is an immunity from suit which does not affect the legal character of the underlying conduct, and therefore, insofar as that conduct constitutes a breach of the EO Act, there is a breach notwithstanding the immunity. Accordingly, a breach of the EO Act by registry staff which falls within their immunity could give rise to a liability on the part of the State, as their employer, under s 102 of the EO Act.
55 Mr Burke submitted that the immunity in s 24 of the MC Act applies to conduct "in the performance [by registry staff] of their duties as such" without any distinction being drawn between judicial and other duties. He also submitted that the immunity applies to all conduct in the performance of the registry staff's duties, whether that conduct is unlawful or not. He added that many types of unlawful conduct would not be subject to the immunity because the conduct would not form part of the registry staff's duties. Finally, while Mr Burke agreed that the immunity of a judge of the Supreme Court is an immunity from suit which does not change the character of the underlying conduct, he said that the effect of s 102 of the EO Act is to place the employer or principal in the shoes of the employee or agent and therefore if the employee or agent is legally immune, so is the employer or principal.
56 I do not accept Mr Nash's submission that the immunity available to registry staff under s 24 of the MC Act is confined to conduct in the performance of judicial duties and duties which directly relate to the exercise of judicial duties. It extends to conduct in the performance of all their duties irrespective of whether they are characterised as judicial, administrative or otherwise. This conclusion plainly follows from the natural meaning of the words of s 24 when read together with s 14 of the MC Act. To construe s 24 narrowly as suggested by Mr Nash would significantly undermine the immunity for registry staff, particularly deputy registrars, because they predominantly perform administrative duties.
57 I also do not accept Mr Nash's submission that the immunity of registry staff is confined to the lawful performance of their duties. The immunity extends to all conduct in the performance of the duties of the registry staff, whether or not such conduct is in breach of the court rules or any other law. For the immunity to apply, the conduct in question must fall within the performance of the duties of the registry staff. If the duties of a registrar include deciding whether to accept a document for filing with the court, and the registrar, in performing that duty, refuses to accept a document, the registrar is immune from being sued and from being personally liable for that conduct. However, if the registrar takes a bribe, the registrar is not immune in respect of that conduct, as the taking of a bribe can never fall within the performance of the registrar's duties.
58 The Tribunal found that if a registrar is immune under s 24 of the MC Act, the State is also immune from vicarious liability because the immunity means there could not be a breach of the EO Act by either the registrar or the State. The Tribunal did not refer to s 102 of the EO Act and obviously did not analyse its words. In my opinion, this failure led the Tribunal into error.
59 The common law principles governing the immunity of judges of the Supreme Court are discussed in Tampion v Anderson,[27] Sirros v Moore,[28] Maharaj v Attorney-General of Trinidad and Tobago (No 2),[29] Moll v Butler,[30] Rajski v Powell,[31] Yeldham v Rajski,[32] Gallo v Dawson (No 2),[33] Re East; Ex parte Nguyen,[34] Wentworth v Wentworth [35] and Fingleton v The Queen.[36] A judge of a superior court is immune from suit in respect of acts done in the performance of judicial duties and administrative functions intimately associated with judicial duties.[37] From the cases cited above, it is clear that the immunity is an immunity from being personally sued and being held personally liable. The immunity also extends to protect a judge from being compelled to disclose any aspect of his or her decision-making process (but not the record upon which the judge acted insofar as it does not reveal any aspect of the decision-making process).[38] Further, the immunity extends to the revelation, by whatever means (such as the evidence of another person or a subpoena to produce the judge's notes), of any aspect of the judge's decision-making process.[39]
60 The State cannot be vicariously liable for a judge's or other judicial officer's acts falling within the immunity. This is not because the judge's immunity extends to the State. Rather, it is because judicial officers, in performing acts falling within the immunity, are not acting as employees or agents of the State but as independent judicial officers.[40]
61 It is not necessary for me to discuss the scope of any exceptions to the immunity (and whether they are true exceptions) beyond rejecting Mr Nash's submission that the mere fact that a judge's conduct is in breach of a law takes the conduct outside the immunity.
62 None of the cases on judicial immunity that have been referred to me have stated that the principle has the effect of converting an act which, in the absence of the immunity, would be a breach of the law, into an act that is not in breach of the law. Neither Mr Nash nor Mr Burke submitted that the principle extended this far. In practice, if neither the judge nor any other witness can be compelled to disclose any aspect of the judge's decision-making process, it will be difficult (but by no means impossible) to establish a breach of the law.
63 Whilst the ambit of the immunity of registry staff must be determined by reference to the common law principles of judicial immunity, that does not mean all of the public policy considerations that underpin judicial immunity apply, or apply with equal force, to a junior deputy registrar performing purely administrative duties. The common law immunity does not extend to administrative staff of a court who perform purely administrative duties. The protection for such staff, if it exists, is based on statutory provisions such as s 24 of the MC Act. Being a statutory immunity, the purpose and rationale of the immunity of registry staff must be found in the purpose and rationale behind s 24. A member of the registry staff may well be an employee or agent of the State for the purposes of the general law principles of vicarious liability. I need not decide for the purposes of this proceeding whether at common law an employer or principal can be vicariously liable where an employee or agent is not liable due to a statutory immunity. This is because, for the purposes of the EO Act, the liability of an employer or principal must be considered, at first instance, under s 102 of the EO Act. I need not decide whether common law vicarious liability can apply in addition to s 102.
64 Section 102 of the EO Act has two limbs. The first limb states that where an employee or agent has contravened the EO Act, both the employee or agent and the employer or principal must be taken to have contravened the EO Act. The second limb states that where an employee or agent engages in conduct that would, if engaged in by the employer or principal, contravene the EO Act, both the employee or agent and the employer or principal must be taken to have contravened the EO Act. Whether the liability of the employer or principal under s 102 is direct liability or vicarious liability need not be decided by me. The important point is that because the immunity in s 24 of the MC Act does not negate the existence of a contravention of a law but rather simply prevents suit being brought and personal liability being imposed, s 102 of the EO Act is capable of operating against the employer or principal in relation to the contravention. Accordingly, where an employee or agent contravenes the EO Act and is immune from liability for the contravention under another Act, the employer or principal may still be liable if the other Act does not confer immunity on the employer or principal. Moreover, the second limb of s 102 does not require a contravention by the employee or agent in order for the employer or principal to be taken to have committed a contravention.
65 These are issues that the Tribunal should have considered and determined. It did not do so because it erroneously concluded, following the earlier case of Towie v Victoria [41] and without proper legal analysis, that even if the registry staff breached the EO Act, they are immune and the State is also automatically immune. It follows from what I have said that the Tribunal's reasons in relation to immunity did not justify its conclusion that Dr Towie's complaint should be summarily dismissed under s 75 of the VCAT Act.
66 Nothing that I have said is to be taken as suggesting that the registry staff contravened the EO Act in this case or that the State is liable under s 102 of the EO Act. These are matters that the Tribunal will need to consider upon the hearing of the proceeding on its merits. If the Tribunal finds that the registry staff contravened the EO Act, or that they engaged in conduct that would, if engaged in by the State, contravene the EO Act, the Tribunal will need to consider whether the registry staff are immune in respect of the contravention or conduct under s 24 of the MC Act and also whether the State is liable under s 102 of the EO Act for the contravention or conduct.
67 In its reasons for decision, the Tribunal said the following in relation to potential direct liability by the State:
68 The Tribunal then went on to consider whether the service in respect of which Dr Towie alleged discrimination was a service for the purposes of the EO Act. I discuss this matter later in this judgment.
69 Mr Nash submitted that if the State could not be vicariously liable under s 102 of the EO Act, the State could be directly liable. He based his submission on the proposition that it is the State that provides the service and therefore the State can be directly liable if there is discrimination in the provision of the service. He referred to the case of Lennard's Carrying Co Ltd v Asiatic Petroleum Co Ltd,[42] which dealt with direct liability of a company for the conduct of a director.
70 Mr Burke submitted that, as the State was an intangible legal entity, it could only act through its servants and agents and therefore it was not possible for the State to have direct liability under the EO Act.
71 I agree with the Tribunal's conclusion that the State can be a respondent to a claim under the EO Act on the basis of direct rather than vicarious liability. For example, where a government department adopts a new policy which is discriminatory for the purposes of the EO Act and the policy is issued without being attributed to any particular officer of the department, the proper respondent to any claim of discrimination would be the State on the basis of direct liability.
72 The Tribunal's consideration of whether the State can be directly liable turned on its view that the service in respect of which Dr Towie alleged discrimination, was not a service at all. I will now consider that issue.
73 In its reasons for decision, the Tribunal said the following in relation to "service":
74 I have already concluded that the Tribunal's decision in relation to services was made in breach of the rules of natural justice. Quite apart from natural justice, it is surprising that the Tribunal reached such emphatic conclusions on the question of services, without any reference to the statutory definition of "services" in s 4(1) of the EO Act (which is set out at paragraph 18 of this judgment) and without discussing the leading authorities on the meaning of "services". Whilst the reasons of the Tribunal do not need to be as detailed as judgments of this Court and should not be scrutinised ove[43]zealously,43 nevertheless, where the Tribunal proposes to summarily dismiss a proceeding on the basis that it is "doomed to fail", it is incumbent on the Tribunal to explain in its decision the legal principles that justify that decision. The question of what is the service being alleged by a complainant is a question of fact whereas the question of whether that service is capable of being a service for the purposes of the EO Act is a ques[44]on of law.44
75 In this case, the Tribunal should have made an express finding as to whether the service in respect of which Dr Towie alleged discrimination was legally capable of being a service for the purposes of the definition in s 4(1) of the EO Act by reference to that definition and the applicable case law.
76 Before me, detailed submissions were made by the parties on what service was in issue and whether this service is capable of being a service as a matter of law under the EO Act. Mr Nash submitted that the service was "provision of access to the court system". He referred to paragraph (f) of the definition of services in s 4(1) of the EO Act, and to Waters v Public Transport Corporation [45] and IW v City of Perth,[46] in support of his proposition that the service in question is capable of being a service as a matter of law. He also referred to Rainsford v Victoria.[47]
77 Mr Burke submitted that the only service provided by the State was the provision of a judicial hearing before a magistrate, and that this is not a service within the meaning of the EO Act. He relied on the cases of Waters,[48] IW,[49] Rainsford v Victoria (Federal Court)[50] and Rainsford v Victoria (Full Federal Court).[51] Mr Burke also submitted that the requirements of ss 8 and 9 of the EO Act were not satisfied.
78 I have considered the above cases. The judgments in those cases in relation to the question of services make it clear that both factual and legal issues are involved. The judgments are complex and differ in a number of respects. It is clear from the cases that Dr Towie would have a number of hurdles to overcome in order to succeed in his complaint. However, it is not obvious that Dr Towie's complaint is inevitably "doomed to fail".
79 In order to summarily dismiss a proceeding on the basis that it is lacking in substance, the Tribunal must reach a high level of satisfaction that the complainant does not have an arguable case. In my opinion, this proceeding did not fall within this category. It was therefore inappropriate for the Tribunal to dismiss it summarily. The Tribunal should have heard the proceeding on its merits and given Dr Towie an opportunity to apply for any necessary amendments, present evidence and fully argue his case.
80 In paragraph 29 of its reasons for decision, the Tribunal said the following in relation to abuse of process:
There are a number of matters which point to the complaint being an abuse of process. According to the complaint, there were at least four Magistrates' Court hearings in Dr Towie's case. The complaint does not assert that, at any of those hearings, Dr Towie requested the magistrate to provide him with the equipment he needed. In fact, the complaint does not claim that Dr Towie was unable to participate in these hearings at all - only that, because of the need for repetition, the hearings were lengthened. It also appears that he was legally represented at at least some of these hearings and, presumably, any request to the magistrate could have been made on his behalf by his legal representative. There is no suggestion in the material put forward by Dr Towie that he appealed, or applied for a review or re-hearing, in respect of his case. Dr Towie lodged his complaint some eighteen months after the date of the first Magistrates' Court hearing of his case, and some ten months after the date of the last hearing. There is no explanation for the delay in the material he puts forward.
81 This paragraph appeared in the Tribunal's reasons under the heading "Other issues" and was introduced by the words "I make brief comment on some other issues raised by the State". The context in which paragraph 29 appears makes it clear that the Tribunal's comments on abuse of process were ancillary to its main findings and were not the operative reasons for the order made by the Tribunal under s 75 of the VCAT Act. This is supported by the opening words of paragraph 29, where the Tribunal states that there are a number of matters "which point to" the complaint being an abuse of process. There is no express finding that the complaint was an abuse of process. Accordingly, the Tribunal's decision cannot be supported on the stand-alone ground that Dr Towie's complaint was an abuse of process.
Questions of law upon which the appeal is brought
82 What I have said already deals in substance with the questions of law upon which the appeal is brought. For completeness, however, I note the following in relation to each of the questions.
83 As stated in paragraph 14 of this judgment, Mr Nash acknowledged that the first question adds nothing to the second question. Accordingly, it is not necessary for me to deal separately with the first question.
84 In relation to the second question, for the reasons set out in paragraphs 56 to 66 of this judgment, under s 24 of the MC Act, the registry staff have immunity from claims under the EO Act for conduct in the performance of their duties. This is not the same as saying that they cannot breach the EO Act - if a breach is committed, the immunity protects them from complaints or actions being brought against them but does not alter the fact that a breach has been committed. If the State does not have immunity, the State can be liable under s 102 of the EO Act if the requirements in that section are satisfied, even if the registry staff are not personally liable.
85 In relation to the third question, as Mr Nash conceded that this question is subsumed in question 2, I do not deal with it separately.
86 It is not necessary for me to separately address the fourth question.
88 In relation to the sixth question, in paragraph 79 of this judgment, I concluded that the Tribunal erred in law in summarily dismissing the complaint rather than hearing it on its merits. I have also concluded in paragraphs 74 and 75 that the Tribunal failed to properly consider the definition of "service" in the EO Act. It follows that the Tribunal erred in law in arriving at its finding that the "service" was not a "service" at all on a summary basis under s 75 of the VCAT Act.
89 Subject to any submissions from the parties, I propose to make the following orders:
(a) Allow the appeal against the order of the Victorian Civil and Administrative Tribunal dated 22 August 2007 in proceeding VCAT reference number A12/2007.
(b) Set aside the whole of the order of the Victorian Civil and Administrative Tribunal dated 22 August 2007 in proceeding VCAT reference number A12/2007.
90 The effect of my proposed orders is that the Tribunal will be required to hear and determine the proceeding on the merits.
91 I will hear the parties on the proposed orders and in relation to costs.
[4] [2003] VSC 255, [65], [68], [69].
[5] Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue of the State of Victoria [2001] HCA 49; (2001) 207 CLR 72, 79-80 [15].
[7] [1998] 1 VR 102 ("Rabel").
[8] (2004) 22 VAR 97; [2004] VSC 506 ("Forrester").
[10] Fancourt v Mercantile Credits Pty Ltd [1983] HCA 25; (1983) 154 CLR 87, 99.
[11] (2002) V Conv R 54-651; [2001] VSC 385, [14].
[12] Rabel [1998] 1 VR 102, 107, 118-19; Forrester (2004) 22 VAR 97; [2004] VSC 506, [25], [27].
[13] (2004) 22 VAR 97; [2004] VSC 506, [33].
[18] Gordon M Jenkins & Associates Pty Ltd v Coleman [1989] FCA 245; (1989) 23 FCR 38, 46-50.
[19] [2005] VSCA 210, [17].
[20] (2001) 17 VAR 306; [2001] VSC 35, [80].
[21] See, eg, Collection House Ltd v Taylor (2004) 21 VAR 333; [2004] VSC 49 (Nettle J); Breese Pitt Dixon Pty Ltd v Wyndham City Council (2004) 21 VAR 154; [2004] VSC 199 (Osborn J); Wood v Meglin Investment Nominees Pty Ltd (2004) 22 VAR 28; [2004] VSC 470 (Redlich J); Daynes v Public Advocate [2005] VSC 485 (Smith J); Dona Homes (Vic) Pty Ltd v Stevens [2005] VSC 499 (Habersberger J).
[22] (2004) 21 VAR 16; [2004] VSCA 20, [36].
[23] [2003] VSCA 70, [7].
[24] [1986] HCA 54; (1986) 161 CLR 141, 145.
[26] [2005] VSC 499, [4].
[27] [1973] VicRp 70; [1973] VR 715, 717-18, 721.
[28] [1975] QB 118, 132ff.
[29] [1979] AC 385, 397-8, 404 ("Maharaj").
[30] (1985) 4 NSWLR 231, 238-43.
[31] (1987) 11 NSWLR 522, 527-37, 538-9.
[32] (1989) 18 NSWLR 48, 58-9, 66-9.
[33] [1992] HCA 44; (1992) 109 ALR 319, 320.
[34] [1998] HCA 73; (1998) 196 CLR 354, 365-6 [30], 376 [59].
[35] [2000] NSWCA 350; (2001) 52 NSWLR 602, 609-14 [19]-[43], 624 [58]-[59], 639 [261], 640 [272].
[36] [2005] HCA 34; (2005) 227 CLR 166, 185-7 [36]-[41].
[37] Halsbury's Laws of Australia, 'Courts and Judicial System' [125-350].
[38] Herijanto v Refugee Review Tribunal [2000] HCA 16; (2000) 170 ALR 379, 382-3 [11]-[16].
[39] Herijanto v Refugee Review Tribunal (No 2) [2000] HCA 21; (2000) 170 ALR 575, 577 [10].
[40] Rajski v Powell (1987) 11 NSWLR 522, 530-1; compare Maharaj [1979] AC 385, 404 and s 23(2) of the Crown Proceedings Act 1958 (Vic).
[42] [1915] AC 705, 712-13.
[43] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, 271-2; Eiken v Housing Guarantee Fund Ltd [2001] VSC 23, [42].
[44] S v Crimes Compensation Tribunal [1988] 1 VR 83, 86-93.
[45] [1991] HCA 49; (1991) 173 CLR 349, 361-2 (Mason CJ and Gaudron J), 393 (Dawson and Toohey JJ).
[46] [1997] HCA 30; (1997) 191 CLR 1, 12, 15 (Brennan CJ and McHugh J), 23 (Dawson and Gaudron JJ), 39 (Gummow J).
[47] [2005] FCAFC 163; (2005) 144 FCR 279, 293 [42]-[43].
[48] [1991] HCA 49; (1991) 173 CLR 349, 361 (Mason CJ and Gaudron J), 372, 375, 377 (Brennan J), 394 (Dawson and Toohey JJ), 404, 407 (McHugh J).
[49] [1997] HCA 30; (1997) 191 CLR 1, 11, 15, 18 (Brennan CJ and McHugh J), 24 (Dawson and Gaudron JJ), 44-5 (Gummow J).
[50] [2007] FCA 1059, [72], [75], [100].
[51] [2008] FCAFC 31, [20].
Towie
State of Victoria [2008] VSC 177
(1997) 191 CLR 1
(2001) 207 CLR 72
(1983) 154 CLR 87
(2001) 3 VR 289
(1989) 23 FCR 38
(1986) 161 CLR 141
(1985) 4 NSWLR 231
(1987) 11 NSWLR 522
(1989) 18 NSWLR 48
(1992) 109 ALR 319
(1998) 196 CLR 354
(2001) 52 NSWLR 602
(2005) 227 CLR 166
(2000) 170 ALR 379
(2000) 170 ALR 575
(1996) 185 CLR 259
(1991) 173 CLR 349
(2005) 144 FCR 279