Applicant v First Respondent

1 On 5 and 6 October 2021 the Court heard two applications for leave to appeal from orders of the Victorian Civil and Administrative Tribunal ('Tribunal') in proceedings in which Ms Judith Lanigan alleges that she was subjected to sexual harassment and victimisation for which Circus Oz and its chairperson (the second respondent) (together 'Circus Oz') are liable.

2 Ms Lanigan seeks leave to appeal from an order of the Tribunal summarily dismissing any claim for relief that arises from any event or cause of action prior to 25 July 2012. The Tribunal summarily dismissed these claims on the basis that they were statute-barred by reason of the Limitation of Actions Act 1958 ('Limitations Act'). The Tribunal Member erred in concluding that Ms Lanigan's claims were subject to the Limitations Act. First, the Tribunal is not a court of law for the purposes of the Limitations Act. Second, a claim for contravention of the Equal Opportunity Act 2010 ('EO Act') is not an action founded on tort. Ms Lanigan will be granted leave to appeal and the appeal will be upheld.

3 Circus Oz seeks leave to appeal from an order of the Tribunal refusing, save in respect of claims predating 25 July 2012, to summarily dismiss or strike out the proceeding. Circus Oz submits that the Tribunal erred by failing to strike out the proceeding by reason of Ms Lanigan's delay in commencing the proceeding. It also submits that the Tribunal erred in failing to strike out the proceeding as misconceived and an abuse of process. I am not satisfied that Circus Oz has a real prospect of success in respect of any of the questions of law in respect of which it seeks leave to appeal. Circus Oz's application for leave to appeal will be dismissed.

The sexual harassment and victimisation allegations

4 Ms Lanigan is a freelance circus performer and show writer. Prior to 2010, she was frequently contracted by Circus Oz to perform and write shows. Ms Lanigan alleges that Mr Matt Wilson, then a senior Circus Oz employee and later a board member of the organisation, made an unwelcome sexual advance towards her in 2006 during a meeting at her home ('alleged incident of sexual harassment').

5 In 2009, Ms Lanigan authored a book titled A True History of the Hula Hoop ('Book'). The Book, a partly autobiographical work of fiction, describes a number of encounters between fictionalised versions of herself ('Catherine') and Mr Wilson ('Johnno'). The Book contains a fictionalised account of the alleged incident of sexual harassment. Ms Lanigan contends that this passage of the Book discloses an allegation of sexual harassment.

6 Ms Lanigan alleges that, after the book was released, Mr Wilson, using his position as an influential figure in the Australian circus industry, sent out an email to several people in the circus industry requesting they not support the book or Ms Lanigan ('Boycott Email'). Ms Lanigan claims that the sending of the Boycott Email was victimisation under the EO Act.

7 Ms Lanigan claims that as a result of the Boycott Email a number of her contracts were cancelled and she has been unable to find work in the circus industry. Ms Lanigan alleges that, in compliance with the Boycott Email, Circus Oz was unwilling to support her work between 2010 and 2016. Ms Lanigan alleges that the conduct of Circus Oz and its chairperson Mr Nick Yates constitutes victimisation under the EO Act.

8 In 2017, Ms Lanigan made a social media post detailing her experiences of sexual harassment in the circus industry. The third respondent, the Zalt Group, was retained by Circus Oz to carry out an investigation into the sexual harassment allegation and the Boycott Email. The Zalt Group is headed by the fourth respondent, Ms Zandy Fell. Ms Lanigan alleged that, due to a lack of procedural fairness in the conduct of the investigation, she suffered further victimisation by all four respondents.

9 Ms Lanigan instituted proceedings in the Tribunal on 25 July 2018 ('VCAT Proceeding'). In her Final Amended Particulars of Claim ('FAPOC') she alleges that Mr Wilson made an unwelcome sexual advance toward her during the 2006 meeting detailed in the Book, in contravention of ss 93, 94 and/or 99 of the EO Act. She claims that Circus Oz and Mr Yates are vicariously liable for Mr Wilson's conduct pursuant to s 109 of the EO Act. She claims further that Circus Oz and Mr Yates victimised her in contravention ss 103, 104 and/or 105 of the EO Act.

10 On 21 September 2018, Circus Oz applied for summary dismissal of the VCAT Proceeding under s 75 of the Victorian Civil and Administrative Tribunal Act 1998 ('VCAT Act'). Similar orders were sought by the third and fourth respondents on 24 September 2018.

11 On 5 November 2018, the applications were heard by Senior Member Steele. The Senior Member made orders on 18 December 2018 dismissing the part of Ms Lanigan's claims that alleged that Circus Oz had engaged in victimisation by 'failing to disassociate itself from the alleged conduct of Matt Wilson'.

12 Senior Member Steele also made orders directing Ms Lanigan to file and serve amended particulars of claim by 7 February 2019. Ms Lanigan filed the amended particulars of claim on 27 January 2019. She subsequently filed the FAPOC on 16 April 2019.

13 On 8 July 2019, Circus Oz filed a second strike out application seeking summary dismissal of the VCAT Proceeding on two bases. First, that the VCAT Proceeding be struck out or summarily dismissed under s 76 of the VCAT Act for want of prosecution. Second, that Ms Lanigan's claim be struck out or summarily dismissed under s 75 of the VCAT Act as an abuse of process.

14 On 8 November 2019, Member Campana heard the second strike out application. On 24 November 2020, Member Campana delivered reasons and orders. The Tribunal's orders ('Orders') were as follows:

1. Any claim for relief that arises from any event or cause of action prior to 25 July 2012 is summarily dismissed.

2. Paragraphs 50 to 57 of Ms Lanigan's Final Amended Particulars of Claim are struck out.

3. The application to otherwise summarily dismiss or strike out the proceeding is refused.

4. The Principal Registrar is directed to list the matter for a direction's [sic] hearing by telephone conference to determine the further conduct of the proceeding.

15 Ms Lanigan filed an application for leave to appeal under s 148 of the VCAT Act on 22 December 2020. Ms Lanigan seeks an order setting aside order 1 of the Orders.

16 Approximately three months later, on 24 March 2021, Circus Oz filed an application for leave to appeal seeking to set aside order 3 of the Orders. An amended notice of appeal was filed on 23 April 2021. The applications for leave to appeal were heard together on 5 and 6 October 2021.

17 The sole issue in Ms Lanigan's appeal is whether Member Campana erred in determining that the Limitations Act applied to proceedings brought in the Tribunal for a contravention of the sexual harassment and victimisation provisions of the EO Act. Member Campana stated:

As such, with the claims being outside the limitation of actions period and being statute barred, the Respondents appear to have a complete defence to the application against them as it relates to the incident of sexual harassment, the allegation of sexual harassment and the victimisation said to have occurred in 2010 and 2011.[1]

18 Section 5(1)(a) of the Limitations Act provides as follows:

Contracts and torts

(1) The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued -

(a) Subject to subsections (1AAA), (1AA) and (1A), actions founded on simple contract (including contract implied in law) or actions founded on tort including actions for damages for breach of a statutory duty;

action includes any proceeding in a court of law

20 Ms Lanigan advances two submissions as to why the VCAT Proceeding is not subject to s 5(1)(a). First, the VCAT Proceeding is not a 'proceeding in a court of law' for the purposes of the definition of 'action' in s 3(1) of the Limitations Act. In the alternative, if the VCAT Proceeding is a proceeding in a court of law, a claim alleging a contravention of the EO Act is not an 'action founded on tort' for the purposes of s 5(1)(a). I accept both of these submissions.

The VCAT Proceeding is not a 'proceeding in a court of law' for the purposes of the Limitations Act

21 It is common ground in the present proceeding that no Victorian court has previously considered the question of whether the Tribunal is a court of law for the purposes of ss 3(1) and 5(1)(a) of the Limitations Act. For the reasons which follow, this question is to be answered in the negative.

22 Whether the Tribunal is a court for the purposes of s 8 of the Commercial Arbitration Act 2011 (Vic) ('Commercial Arbitration Act') was considered by the Victorian Court of Appeal in Subway Systems Australia v Ireland ('Subway Systems').[2] Although the Court ultimately held that the Tribunal was a court, the Court's analysis was confined to the particular provisions of the Commercial Arbitration Act. Maxwell P determined that 'the special character of the Act, and the special rules of interpretation which are as a result engaged' were 'decisive' factors in finding that the Tribunal was a court.[3]

23 The Commercial Arbitration Act is a domestic law of Victoria adopting the international 'Model Law' established by the United Nations Commission on International Trade Law ('UNCITRAL'). Maxwell P noted that the Victorian Parliament intended the law to operate consistently with the Model Law.[4] His Honour concluded that the definition of 'court' as 'a body or organ of the judicial system of a State' was intended to be sufficiently general to be capable of application to the "judicial system" of each contracting State, whatever the constituent elements of that system might be'.[5] Maxwell P determined that this 'functional approach' conformed with the 'manifest purpose' of the legislation.[6] It was therefore irrelevant that the Commercial Arbitration Act did not simply replicate the definition of 'court' in the Model Law, and in the absence of any policy basis for viewing the Tribunal's adjudicative role as different to the role played by courts for the purposes of the Model Law, there was no reason to interpret the provision as being narrower than that contained in the Model Law.[7]

24 As to the status of the Tribunal, Beach JA stated:

VCAT is a statutory tribunal. There is now a significant body of cases in which it has been held that VCAT is not a court. That said, when VCAT exercises original jurisdiction, it discharges a function that, at least, resembles the exercise of judicial power by a court.

Notwithstanding the cases to which I have just referred (and which hold that VCAT is not a court), the word 'court' when undefined in some statutes, has, on occasion, been held to include VCAT. For example, the authorities in respect of s 471B of the Corporations Act 2001 show that the word 'court' in that section is not to be construed in a strict sense, but rather in a fashion that is broad enough to cover a proceeding in a tribunal such as VCAT. Similarly, in my view, it could not be doubted that the expression 'any court', in s 65(8) of the Constitution Act 1975, includes VCAT.

From time to time the Victorian Parliament has defined the word 'court' so as to pick up various unspecified tribunals or to pick up VCAT specifically for certain specified provisions. On other occasions the word 'court' is defined in a way that plainly excludes VCAT. While s 38 of the Interpretation of Legislation Act 1984 contains definitions of the expressions 'Coroners Court', 'County Court', 'Court of Appeal', 'Family Court', 'Federal Court', 'High Court', 'Magistrates' Court', 'Supreme Court' and 'VCAT', there is no general definition applying to statutes ('unless the contrary intention appears') of the word 'court'.[8]

25 Beach JA concluded that the Tribunal was a court for the purposes of s 8 of the Commercial Arbitration Act:

Notwithstanding the inability of VCAT to enforce its own orders, in my view VCAT answers the description of 'a body or organ of the judicial system of [Victoria]'. VCAT possesses the six features referred to by Lord Sankey LC in Shell Co of Australia Ltd v Federal Commissioner of Taxation. This is so, at least, in respect of VCAT's exercise of original jurisdiction.[9]

Beach JA concluded that upon examination of the provisions of the Commercial Arbitration Act, the Model Law, extrinsic materials and the underlying purpose and object of the legislation, the word 'court' in s 8 should be interpreted to include the Tribunal.[10]

26 Kyrou AJA (as his Honour then was) disagreed with the findings of Maxwell P and Beach JA. In relation to the status of the Tribunal, Kyrou AJA stated:

Section 8 of the Act does not define the word 'court'. If one were to consider that word in isolation, one would need to consider the common law criteria for determining which bodies are courts and assess whether VCAT satisfies those criteria. In my opinion, VCAT could not be characterised as a court under the common law because it is not bound by rules of evidence; it cannot enforce its own decisions; some of its members are not legally qualified; it can be required to apply a statement of government policy; and it can be required to provide advisory opinions. Further, VCAT and its predecessor, the Victorian Administrative Appeals Tribunal, were expressly established to be inexpensive, informal and speedy administrative tribunals rather than courts.

The common law position is reflected in the Civil Procedure Act 2010, s 3 of which defines 'court' as the Supreme Court, the County Court and the Magistrates' Court. Although the Interpretation of Legislation Act 1984 does not define 'court', it uses that word in contradistinction to 'tribunal' and 'persons acting judicially'.

The common law position is also reflected in the Constitution Act 1975, which also draws a distinction between 'court' and 'tribunal'. Moreover, s 87AAA, which is in pt IIIAA - 'The Judiciary' - defines 'judicial office' to mean the office of a judge or associate judge of the Supreme Court or the County Court and the office of magistrate.

As VCAT has generally not been regarded as a court, if Parliament had intended that it be treated as a court for the purposes of the Act, it could easily have said so.[11]

27 Kyrou AJA concluded that the objects of the Commercial Arbitration Act were not undermined by a finding that the word 'court' does not include the Tribunal,[12] resort could not be had to the definition of 'court' in the Model Law,[13] and even if it could, the Tribunal still did not fall within the meaning of 'judicial system' in the Model Law as 'it [did] not include statutory tribunals which have compulsory dispute resolution functions'.[14] Kyrou AJA reasoned that '[h]ad the Model Law intended to include all state bodies or organs that have compulsory dispute resolution functions, it could have easily said so'.[15]

28 In addition to analysing the common law understanding of the word 'court', Kyrou AJA addressed the meaning of 'court' within the Limitations Act. His Honour noted that s 27A(2) of the Limitations Act states that '[i]n this part... a reference to a court includes a reference to the Victorian Civil and Administrative Tribunal'.[16] This section supports the conclusion that Parliament did not intend to include tribunals within the definition of court. Rather, Parliament included the Tribunal within the definition of 'court' for the purposes of a specific part of the Act. When the statute was amended in 2010 to include s 27A(2), there existed a substantial body of Court of Appeal authority supporting the proposition that the Tribunal was not a court.[17] Section 27A(2) should be read with that in mind.

29 Subway Systems is not authority for the proposition that the Tribunal is a court for the purposes of the definition of 'action' in s 3(1) of the Limitations Act. The reasoning of Maxwell P and Beach JA relies heavily on the statutory framework of the Commercial Arbitration Act. I consider the dissenting judgment of Kyrou AJA to be highly persuasive on the question of whether the Tribunal is a court for the purposes of s 3(1) of the Limitation Act. His Honour's analysis of the common law criteria of a court points strongly to the conclusion that the Tribunal is not a court for the purposes of s 3(1) Limitations Act.

30 In Director of Housing v Sudi ('Sudi')[18] the Court of Appeal considered, inter alia, whether the Tribunal had the jurisdiction to undertake a collateral review into the validity of an administrative decision made under the Residential Tenancies Act 1997 ('RTA'). The Court found that the relevant RTA provision did not confer review jurisdiction on the Tribunal.

31 Warren CJ held that 'VCAT is an administrative tribunal, not a court in the sense in which the word "court" is generally understood in administrative law'.[19] Weinberg JA held that 'VCAT is not a court' and '[s]elf-evidently, it is not a "court of a State" within the meaning of s 77(iii) of the Constitution'.[20] Weinberg JA considered authorities on whether the Tribunal is a court for the purposes of the Constitution. A number of these authorities considered whether the Tribunal is a court under the common law, before assessing whether it is a 'court of a State' for the purposes of s 77 of the Constitution.

32 One of the authorities considered in Sudi was Commonwealth v Wood ('Wood').[21] In Wood, Heerey J held that the Anti-Discrimination Tribunal in Tasmania ('ADT') was not only a 'court' but also a 'court of a State' within the meaning of the Constitution for the purposes of the Anti-Discrimination Act 1998 (Tas) ('ADA'). Heerey J determined that the question was not whether the ADA labelled the ADT a 'court', but rather whether the ADT answered the description of a 'court' within the meaning of the term in the Constitution.[22] Heerey J considered the factors which weighed against a finding that the ADT was neither a 'court' nor a 'court of a State', including that the ADA did not refer to it as a court, the majority of its members were not lawyers, members did not take an oath of office and had no security of tenure, there was no right of legal representation, it was not bound by the rules of evidence, it was required to operate with as little formality as possible, and appeals could be brought to the Supreme Court.[23] However, his Honour ultimately found that the ADT was a court because it was incorporated into the judicial system of Tasmania, it had been created to exercise the judicial power of the State, and it exercised 'court-like functions'.[24] In Sudi Weinberg JA stated 'there is doubt as to whether Wood was correctly decided'.[25]

33 In Commonwealth v Anti-Discrimination Tribunal (Tas)[26] which also concerned the status of the ADT, Kenny J declined to follow Heerey J's reasoning in Wood. Kenny J determined that the meaning of 'court' depends upon the terms of the particular statute in question and the statutory context in which the word appears. Her Honour considered that a 'court of a State' must have the 'essential character of a court' regardless of its label,[27] and in order to constitute a 'court' a body must be independent and impartial.[28] Kenny J determined that the ADT was not a court, noting that the tribunal members were appointed for relatively short periods and could be removed at any time by the minister. Her Honour held that it was certainly not a 'court of a State' because of the minister's ability to remove ADT members at will.[29]

34 In Sudi Weinberg JA described Kenny J's analysis as 'compelling', finding that 'Kenny J's decision provides a useful touchstone' to consider 'whether the Victorian Parliament, when it enacted the Charter' intended VCAT to have the power to use it as the basis for... collateral review'.[30] Weinberg JA concluded that:

• the Tribunal is 'an independent statutory body' but 'its members, apart from the President and Vice-Presidents, do not enjoy judicial independence';[31] and
• the Tribunal is 'something of a hybrid' body and '[w]hen it exercises original jurisdiction, it discharges a function that resembles the exercise of judicial power by a court ... subject to any statutory constraints that are imposed upon it'.[32]

35 The Tribunal is not a court for the purposes of the definition of 'action' in s 3(1) of the Limitations Act. Ms Lanigan's VCAT Proceeding is not a proceeding in a court of law.

A claim alleging a contravention of the EO Act is not an 'action founded on tort'

36 If I am wrong in concluding that the Tribunal is not a court for the purposes of the definition of 'action', it does not follow that Ms Lanigan's claims in the VCAT Proceeding are subject to the Limitations Act. In order for the claims to be subject to the Limitations Act, the claims must be 'an action founded on tort' for the purposes of s 5(1)(a). For the reasons which follow, I have concluded that Ms Lanigan's claim alleging a contravention of the EO Act is not an action founded on tort.

37 Circus Oz advanced two alternate submissions on the application of s 5(1)(a). First, it submitted that a breach of the EO Act constitutes a breach of statutory duty, and is therefore a tort.[33] Second, and in the alternative, a claim for sexual harassment could otherwise be considered a 'tort' under a broad reading of s 5(1)(a).[34] I reject both of these submissions.

38 Circus Oz submits that Ms Lanigan's claim under the EO Act is a claim for breach of statutory duty and is therefore an action founded on tort.[35] A cause of action for breach of statutory duty requires the statute, properly construed, to disclose an intention to create a ground of civil liability. The intention is to be implied from the text of the statute and any implication must yield to express words to the contrary.[36]

Contravention does not create civil or criminal liability

A contravention of this Act does not create any civil or criminal liability except to the extent expressly provided by this Act.

40 I was not referred to any authority which has considered this provision nor its predecessor in s 209 of the Equal Opportunity Act 1995. The relevant explanatory memoranda accompanying both Acts do not provide any insight into the provision. However, s 188 makes clear that a breach of the EO Act does not provide a ground for civil liability. There is no express contrary intention in relation to the sexual harassment and victimisation provisions of the EO Act. Circus Oz's claim that the EO Act creates an action for breach of statutory duty is rejected.

41 Circus Oz submits that Ms Lanigan's sexual harassment claim can otherwise be considered a tort. Circus Oz submits that the Limitations Act should be read broadly to capture all actions that can be considered torts as a matter of substance, rather than being limited to established causes of action. Circus Oz submits that any proceeding that meets the broad definition of tort should be considered an 'action founded on tort' such that the Limitations Act should apply.[37]

42 Circus Oz submitted that the reference to 'tort' in s 5(1) should be construed consistently with the reasoning of Hulme J in Jonstan Pty Ltd v Nicholson:[38]

[breach] of a duty primarily fixed by law, owed to persons generally, and its breach is redressible by an action for unliquidated damages by anyone who has suffered damage in consequence of the breach.[39]

43 Circus Oz also submitted that the judgment of McHugh JA (as his Honour then was) in Australian Postal Commission v Dao ('Dao')[40] supports the proposition that a breach of anti-discrimination legislation can be considered a tort.

44 In Dao, McHugh JA concluded that a proceeding brought under the Anti-Discrimination Act 1977 (NSW) was an action in tort. His Honour cited the following passage from Halsbury's Laws of England ('Halsbury definition') in support:

Rights of action in tort. Those civil rights of action which are available for the recovery of unliquidated damages by persons who have sustained injury or loss from acts, statements or omissions of others in breach of duty or contravention of right imposed or conferred by law rather than by agreement are rights of action in tort. The proposition thus formulated shows that the nature of tort can, perhaps, best be approached by way of distinctions. The principal distinctions to be drawn are the distinction between an action in tort and an action in contract, and the distinction between a civil wrong and a crime, although the same circumstances may give rise to actions for breach of contract or in tort and although many tortious acts are also crimes.[41]

45 In Christian Youth Camps Ltd v Cobaw Community Health Services Ltd ('Christian Youth Camps')[42] Neave JA stated:

In this case the EO Act provides various remedies, including payment of compensation for discriminatory acts, but does not create tortious liability.[43]

In support, her Honour cited both Commissioner of Police v Estate of Russell ('Estate of Russell')[44] and Pinecot Pty Ltd v Anti-Discrimination Commissioner ('Pinecot'),[45] while acknowledging the contrary view of McHugh JA in Dao. Redlich JA agreed with Neave JA's conclusion that the EO Act does not create tortious liability.[46]

46 In Pinecot, Mildren J of the Supreme Court of the Northern Territory concluded that a claim alleging sexual harassment was not an action in tort, and therefore vicarious liability did not arise. Mildren J placed weight on the fact that a claim for contravention of the sexual harassment provisions of the Anti-Discrimination Act 1992 (NT) was not actionable in a court of law, despite the Supreme Court's jurisdiction encompassing all causes of action in tort.[47] His Honour further noted that conduct amounting to sexual harassment would not give rise to an action in negligence.[48]

47 As regards McHugh JA's adoption of the Halsbury definition, Mildren J considered the phrase 'civil rights of action' as referring to actions that are enforceable in a court of law. Mildren J distinguished Dao and on the basis that McHugh JA assumed that the New South Wales tribunal was a court.[49]

48 In Estate of Russell, Spigelman CJ (Davies JA agreeing) concluded that the Law Reform (Vicarious Liability) Act 1983 (NSW) did not apply to proceedings before the Equal Opportunity Division of the Administrative Decisions Tribunal under anti-discrimination legislation.[50] Section 8 of the Law Reform (Vicarious Liability) Act 1983 (NSW) provided that 'the Crown is vicariously liable in respect of the tort' committed by certain persons.

49 While the issue of the application of s 8 was determined on different grounds, Spigelman CJ considered McHugh JA's views in Dao. With regard to the Halsbury definition that was adopted by McHugh JA, Spigelman CJ stated:

There is no doubt that statutes can create new torts and have done so. There is no simple definition of a tort. The elements that can be said to characterise torts are able to be stated at different levels of generality. The fact that all or most torts can be described in a particular way does not mean that everything that can be described in that way constitutes a tort. ...

I note that the definition of tort in Halsbury, relied on in the prior authorities, refers to 'civil rights of action' and 'rights of action in tort'. In my opinion, it is not accurate to describe proceedings by way of complaint before a tribunal as a 'right of action'. That terminology is reserved for proceedings in a court of law.[51]

50 His Honour addressed two authorities involving indemnities under workers' compensation legislation: Philip Morris Ltd v Ainley & Inc Nominal Defendant[52] and Esso Australia v Victorian Workcover Authority.[53] In both cases it was held that the indemnities payable to injured workers were not damages arising from the commission of torts, but rather statutory causes of action.

51 Spigelman CJ concluded that a claim for contravention of the Anti-Discrimination Act 1977 (NSW) was not a tort, noting in particular that '[t]he word "tort" in that Act is concerned with causes of action that can be enforced in courts'.[54] Estate of Russell is authority for two propositions. First, any attempt to broadly categorise what is and is not a tort by reference to a highly-generalised definition is unhelpful. Second, notwithstanding the difficulty in conclusively defining what constitutes a tort, a tort denotes a common law cause of action that is enforceable in a court. A tort is a civil action, breach of which generates civil liability.

52 The judgments of Neave and Redlich JJA in Christian Youth Camps and the judgment of the New South Wales Court of Appeal in Estate of Russell support the proposition that a contravention of the EO Act does not create civil liability.[55] A contravention of the EO Act cannot be litigated in a court of law. A proceeding to remedy a contravention of the EO Act is not an action founded on tort.

53 The Limitations Act does not apply to a proceeding brought in the Tribunal for a contravention of the EO Act. The Tribunal is not a court for the purposes of the Limitations Act. Further, a contravention of the EO Act is not an 'action founded on tort'. The Tribunal erred by concluding that Ms Lanigan's claim was subject to the Limitations Act. Ms Lanigan will be granted leave to appeal in respect of order 1 and the appeal upheld.

54 Circus Oz challenges order 3 of the Orders by which the Tribunal refused Circus Oz's application for summary dismissal or strike out of the VCAT Proceeding. Before addressing the merits of the appeal, two procedural questions arise for determination. First, whether Circus Oz should be granted an extension of time in circumstances where their notice of appeal was filed four months after the Orders were made. Second, whether Circus Oz should be granted leave to amend its notice of appeal. I accept that Circus Oz should be granted an extension of time, but reject the application for leave to amend the notice of appeal.

Should Circus Oz be granted an extension of time to file its notice of appeal?

55 Section 148(2) of the VCAT Act provided Circus Oz with 28 days to file an application for leave to appeal from the Orders. Circus Oz filed its notice of appeal on 24 March 2021. An amended notice of appeal was filed on 23 April 2021.

56 Circus Oz seeks an extension of time to file their application for leave to appeal. Counsel for Circus Oz conceded that, during the 28 day period from 24 November 2020, Circus Oz had no intention to appeal the Orders.[56] Circus Oz did not turn its mind to whether it should file an application for leave to appeal until after it was served with Ms Lanigan's application for leave to appeal. Circus Oz made a deliberate forensic choice not to pursue an appeal of the Tribunal's decision.

57 Under s 148(5) of the VCAT Act, the Supreme Court has the power to extend or abridge the time limit prescribed by s 148(2). The principles governing applications for extensions of time were recently summarised by Kaye and Niall JJA in Beling v Victorian Legal Services Commissioner,[57] albeit in the context of r 64.08 of the Supreme Court (General Civil Procedure) Rules 2015. Their Honours said as follows:

The underlying object of that rule is to provide to the Court a discretion to extend time with a view to avoidance of an injustice. In Kambouris v Kiatos, McLeish JA and Riordan AJA identified the principal relevant factors that are ordinarily taken into account on such an application in the following terms:

In deciding whether an extension of time to seek leave to appeal should be granted, the Court will take into account several factors, including: (a) the length of delay; (b) the reasons for delay; and (c) the extent of any prejudice suffered by the respondent if the extension is granted. An extension of time will not be granted if the appeal 'is so devoid of merit that it would be futile to do so'.

The exercise of the discretion must be undertaken taking into account that the overarching purpose of the Rules is to facilitate 'the just, efficient, timely and cost effective resolution of the real issues in dispute', and that, upon the expiry of the time limited for the appeal, the respondent had a vested right to retain the judgment obtained at first instance unless the application for an extension of time is granted.[58]

58 The position may be different where there has been a conscious choice not to institute an appeal within the prescribed time period, as the Court of Appeal noted in Tucker v Victoria ('Tucker'):[59]

Ordinarily, where a legally qualified party, who is also represented by a solicitor and counsel, makes a deliberate forensic decision not to seek leave to appeal against a judgment, and maintains that position for 262 days, an extension of time will be refused unless there are circumstances which demonstrate that it would be in the interests of justice to grant it. The absence of any actual prejudice to an opposing party would ordinarily not constitute such a circumstance. That is because the administration of justice requires finality in litigation and would be undermined if a party were permitted to challenge a decision many months out of time simply because the party changed its mind.[60]

59 Despite the inordinate delay, the Court of Appeal granted an extension of time, noting the 'very unusual circumstances' of the case.[61] The applicant's success was contingent upon establishing that the proposed appeal grounds were bound to succeed, that no substantial injustice would be caused by the grant of an extension, and that no actual prejudice would be caused to the opposing party if the extension were granted. The case for a grant of an extension of time would be strengthened if the judgment were already subject to an extant application for leave to appeal.[62]

60 Circus Oz submits that the Court of Appeal's reasoning in Tucker applies with equal force to its application for an extension of time. It submits that despite consciously electing to not file its notice of appeal within the prescribed period, its decision to do so was consistent with the overarching purpose in s 7 of the Civil Procedure Act 2010 ('Civil Procedure Act'). It says further that its failure to file the notice of appeal in the three months after the time had elapsed was explicable on the basis that it did not have the transcripts of the First Strike Out Application hearing.

61 I reject Circus Oz's submission that its decision to refrain from filing an appeal during the prescribed 28 day period was consistent with the overarching obligation contained in the Civil Procedure Act. Statutory time limits exist to ensure that litigation is conducted in a just, efficient, timely and cost-effective manner. The conduct of Circus Oz in delaying consideration of whether to file an application for leave to appeal until after the 28 day period for filing an application had lapsed was inconsistent with the overarching obligation in s 7 of the Civil Procedure Act.

62 Circus Oz points to delay in receiving a transcript of the first strike out application as the primary reason for its delay in filing its notice of appeal. Circus Oz received the transcript on 12 March 2021. I accept that it was reasonable for Circus Oz to seek to obtain a copy of the transcript before filing its notice of appeal. I also accept that Circus Oz's application for an extension of time is strengthened in circumstances where the decision and orders of the Tribunal were already subject to an extant application for leave to appeal. Further, for the reasons discussed below, there is merit in Circus Oz's contention that the Tribunal erred in its consideration and application of the doctrine of estoppel. On balance, I consider that the interests of justice favour granting the application for an extension of time.

63 Ground 1 of Circus Oz's Amended Notice of Appeal reads as follows:

In determining whether to strike out or dismiss the Claims on grounds of delay, the Tribunal erred by failing to consider the merit of the Claims, and by refusing or failing to take into account extracts of a book (The History of the Hula Hoop (Book)) which were before the Tribunal and which were relevant to the assessment of merit.

64 During the hearing, counsel for Circus Oz sought to amend ground 1 by replacing the reference to 'grounds of delay' with 'ss 75 and 76 of the VCAT Act'. The grounds as amended would read as follows:

In determining whether to strike out or dismiss the Claims under ss 75 and 76 of the VCAT Act, the Tribunal erred by failing to consider the merit of the Claims, and by refusing or failing to take into account extracts of a book (The History of the Hula Hoop (Book)) which were before the Tribunal and which were relevant to the assessment of merit.

65 Mr Harmer, who appeared for Ms Lanigan, consented to Circus Oz's proposed amendment. However, he withdrew this consent when it became apparent during the course of the hearing that counsel for Circus Oz sought to rely upon the amendment to contend that the FAPOC did not disclose a cause of action.

66 Circus Oz seeks leave to appeal in respect of seven questions of law:

1. Whether the Tribunal failed properly to exercise its discretion under ss 75 and/or 76 of the VCAT Act to strike out or summarily dismiss the respondent's (Ms Lanigan) claims the subject of the Application (Claims).

2. Whether the Tribunal failed to give adequate reasons for refusing the appellant's (Circus Oz) application in the Proceeding to summarily dismiss or strike out Ms Lanigan's claims the subject of the Application (Strike Out Application).

3. Whether the Tribunal mischaracterised the nature of the Strike Out Application and/or an earlier application in the Proceeding to summarily dismiss or strike out Ms Lanigan's claims(First Strike Out Application).

4. Whether the Tribunal erred in its consideration and application of the doctrine of estoppel.

5. Whether the Tribunal failed or refused to take into account relevant considerations.

6. Whether the Tribunal's decision not to strike out or dismiss claims on the grounds of delay was manifestly unreasonable.

7. Whether the Tribunal misapprehended its task in determining whether to strike out or dismiss claims on grounds of delay.

67 None of the questions of law articulate an error of law due to the failure of the Tribunal to dismiss the proceeding by reason of the FAPOC not disclosing a cause of action. Ms Lanigan and her legal representatives were not put on notice in advance of the hearing that the question of whether the FAPOC disclosed a cause of action would be put in issue. Ms Lanigan would suffer prejudice if Circus Oz was granted leave to amend its notice of appeal. The application for leave to amend is refused.

Circus Oz's Application for Leave to Appeal the Orders

68 Circus Oz seeks leave to appeal in respect of order 3 of the Orders which provided:

The application to otherwise summarily dismiss or strike out the proceeding is refused.

69 Order 3 is an interlocutory order. An applicant for leave to appeal under s 148 VCAT Act in respect of an interlocutory order must satisfy two criteria. First, that the order is attended by sufficient doubt to warrant it being reconsidered on appeal. Second, that substantial injustice would be caused if it were allowed to stand.[63] Further, order 3 is concerned with a matter of practice and procedure. As such, particular caution must be exercised in determining whether leave to appeal should be granted.[64]

70 In Department of Premier and Cabinet v Hulls,[65] Phillips JA stated:

Where the order sought to be appealed is interlocutory (or 'interim' in the terminology of the VCAT Act), there may be particular reasons, based in justice to both parties, for not granting leave to appeal. There are strong considerations against the fragmentation of any proceeding, whether it be criminal or civil. Where a court is invited to grant leave to appeal from an order which is simply interlocutory, the litigation will be interrupted by the appeal, if leave is granted. Usually it is better if litigation is left to run its course, the parties being remitted to such rights of appeal as they have at the end of the day. Not only does that ensure that the litigation is not unnecessarily interrupted and completion not delayed without warrant; it also ensures that any interlocutory dispute will be seen and adjudged in its final context. Indeed, in the context of the final judgment the interlocutory dispute may be seen as having, or having had, little or no significance. Hence, in Niemann it was said that an applicant for leave to appeal from an interlocutory order must show, not only sufficient doubt about the correctness of the order, but also that there would be substantial injustice in leaving that order unreversed.[66]

71 Circus Oz accepts that in order to be granted leave to appeal it must establish that it will suffer substantial injustice if order 3 is allowed to stand. In its written submissions it submitted as follows:

Substantial injustice would result if Order 3 were allowed to stand in circumstances where Circus Oz will continue to be vexed by claims that:

(a) do not put it on notice of the claims against it (and which matters the Tribunal did not address in the Second Strike Out Application); and/or

(b) when, taken at their highest, are frivolous, misconceived and lacking in substance. The impugned claims are material to the proceeding, and indeed constitute the entire proceeding.

The injustice is exacerbated by Ms Lanigan's parallel appeal, by which she seeks to have Order 1 set aside. Ms Lanigan has persisted with her appeal, and the Proceeding, despite Circus Oz's letter highlighting errors of law in the Second Strike Out Decision (to which Circus Oz received no response), and where Circus Oz stated as follows:

it is now abundantly clear - including from your [Mr Harmer's] own admissions in the second strike out application as to the contents of your client's book - that the book contains no allegation of sexual harassment within the meaning of the Act. As has, in effect, been admitted, your client can point to nothing in the book that describes an unwelcome sexual advance and the other matters necessary to establish a claim of sexual harassment.

It is most unfortunate that Member Campana did not resolve this issue, as she was bound to do, and similarly unfortunate that you client continues to press claims which have no proper basis in fact or law, assisted by you...'

It would work a substantial injustice on Circus Oz if it were not granted leave to appeal Order 3 and thus was deprived of the opportunity to seek redress, in the most efficient way possible, for claims that may be summarily dismissed, or alternatively struck out.

As Latham CJ said in Dey v Victorian Railways Commissioners, if the Court is of the opinion that a plaintiff cannot succeed, there is every reason for protecting a defendant from vexation by the continuance of proceedings which must be useless and futile, even when there is nothing frivolous about the action. This position has even greater force when regard is had to the duties of the Court and the parties under the CP Act.

Circus Oz readily accepts that in many cases it will not be in the interests of justice, or in the interests of the parties, to fragment Tribunal proceedings to enable appeals on matters which are in substance interlocutory. This is not a relevant consideration in the present circumstances where the Tribunal proceedings were already fragmented by reason of Ms Lanigan's appeal.

Further, in the present case and as described above, there are real issues of public interest arising from a denial of procedural fairness and misapplication of the law including as to the obligations of the Tribunal, which should be corrected on appeal.[67]

72 I do not accept the matters set out above support a finding that Circus Oz will suffer substantial injustice if order 3 is allowed to stand. Circus Oz contends that it will suffer injustice by being required to defend claims which are frivolous, misconceived and lacking in substance. It seeks to characterise the claims as 'useless and futile'. For the reasons set out below, I reject this characterisation of Ms Lanigan's claim. I have concluded that Ms Lanigan has an arguable case that she suffered detriment at the hands of the respondents in circumstances where they were aware that she had made an allegation that she had been sexually harassed.

73 The fact that Ms Lanigan has sought leave to appeal from paragraph 1 of the Orders does not relieve Circus Oz of the obligation to establish that it will suffer substantial injustice. Paragraph 1 of the Orders, although interlocutory, is 'final in effect'.[68] The order prevents Ms Lanigan from pursuing any claim for relief arising from any event or cause of action prior to 25 July 2012. Second, Ms Lanigan's appeal raises a narrow point of statutory construction regarding the application of s 5(1)(a) of the Limitations Act. By reason of the wide-ranging nature of the Circus Oz appeal, and the late filing of the application, the Tribunal proceedings have been fragmented to much greater extent than would have been the case if the Court had only been dealing with Ms Lanigan's appeal. Circus Oz bears the onus of establishing that it will suffer substantial injustice if paragraph 3 of the Orders stands. It has failed to discharge this onus. Leave to appeal is refused.

74 If I am wrong in concluding that Circus Oz has failed to establish that it will suffer substantial injustice, I would in any event refuse to grant Circus Oz leave to appeal in respect of paragraph 3 of the Orders.

75 The jurisdiction conferred by s 148 of the VCAT Act is confined to appeals on a question of law. It is not the function of the Court in exercising that jurisdiction to usurp the fact-finding function of the Tribunal. An appeal under s 148 is not an appeal by way of rehearing. Rather, the proceeding is in the nature of judicial review.[69] Where an appellant under s 148 seeks to have an order set aside and reversed, the question of law must be such that, if there is shown to be error in respect of that question, an appellant's claim to relief will thereby be advanced. On an application for leave to appeal the question of law must bear directly upon the relief which is sought in the appeal and it must be shown that there is sufficient doubt attending that question to justify the grant of leave to appeal.[70] Before addressing the questions of law in respect of which Circus Oz seeks leave to appeal it is necessary to address in detail the Tribunal's reasons.

76 After setting out the background of the proceeding the Member set out the legal principles relevant to the exercise of the power conferred by ss 75 and 76 of the VCAT Act. After summarising the party's submissions the Member set out four propositions underpinning the strike out application as follows:

Proposition 1

Circus Oz submits that there has been an inordinate delay in bringing the claim by Ms Lanigan which is 'unfairly prejudicial' to Circus Oz. It says this is an 'abuse of process' or a 'want of prosecution' under ss 75 and 76 of the VCAT Act, respectively. Circus Oz seeks the proceeding be summarily dismissed or alternatively, struck out.

Ms Lanigan responds that there has been no delay as the complaints arise from a 'continuum of conduct', with the application filed within five months of receiving the Review Report. Additionally, Ms Lanigan submits that the decision to reject an 'out of time' application is discretionary, with consideration of a number of factors including whether there is a satisfactory explanation for the delay.

Proposition 2

Circus Oz submits that the proceeding is 'misconceived' or 'lacking in substance' because the cause of action is statute barred by reason of the LOA Act. Again, it seeks the proceeding be summarily dismissed or alternatively, struck out.

Ms Lanigan's response is that she was incapable of managing her affairs because of her mental health, and that any time restriction on commencing a claim does not run until she became aware she had obtained an injury from the Respondents.

Proposition 3

Circus Oz submits that the FAPOC do not reveal that any complaint of sexual harassment is contained within the Book. As such, Circus Oz says the claims of victimisation based on the complaint contained within the Book, are 'misconceived' and 'lacking in substance' and as such the claims should be summarily dismissed or alternatively, struck out.

Ms Lanigan refutes the claim that there is no allegation of sexual harassment contained within the Book and refers to and repeats the particulars in her FAPOC. Additionally, she says that is a matter of evidence and determination for a final hearing.

Proposition 4

And finally, Circus Oz submits that the claims made in relation to the conduct in the earlier s 75 hearing are vexatious, misconceived and lacking in substance.

Ms Lanigan did not address these points in her written submissions. [71]

77 For the purposes of addressing Circus Oz's application for leave to appeal only propositions 1 and 3 are relevant. Proposition 2 relates to the application of the Limitation Act which is the subject of Ms Lanigan's appeal. Proposition 4 relates to [50]-[57] of the FAPOC which were struck out by order 2.

Proposition 1: Delay giving rise to an abuse of process or want of prosecution

78 The Member summarised Circus Oz's submissions in respect of proposition 1 as follows:

Circus Oz submits that Ms Lanigan's delay in bringing the proceeding is unfairly prejudicial and as such is an abuse of process.

Circus Oz submits that while 'abuse of process' is not defined in the VCAT Act, it has been described as

a proceeding that is being used in a way that is manifestly unjust, oppressive or unfair to a party to the proceeding, or would otherwise bring the administration of justice into disrepute among right-thinking people.

Circus Oz submits that VCAT has held on many occasions that this includes a proceeding where there has been an inordinate delay in bringing the complaint.

Circus Oz submits that the EO Discretion, which allows for the summary dismissal of an application under the EO Act for want of prosecution if the alleged contravention occurred more than 12 months before the application was lodged, also gives the Tribunal a discretion to prevent injustice due to delay.

In its written submissions, Circus Oz then refers to a number of decisions where delay was considered. These include Burrows v State of Victoria, Casley v ABC, Stewart v City of Yarra, Jovancevski v United Voice, and Brisbane South Regional Health Authority v Taylor.

Circus Oz says that it is unfairly prejudiced by the delay, when regard is had to the serious nature of the claims. It says the following are relevant factors for consideration -

(a) the inordinate and unreasonable delay in commencing the proceedings;

(b) many of the allegations of victimisation concern brief conversations of one or two sentences with various individuals, the detail of which would have been lost in the many years that have passed between the occurrence of any such discussions and Ms Lanigan filing her application;

(c) Circus Oz has not been responsible for the delay in any way;

(d) the nature of the proceeding in the Tribunal is such that it will depend heavily on the credit of witnesses;

(e) the delay over such a prolonged period of time must necessarily have affected the quality of justice, with the deterioration of witnesses' memories;

(f) the LOA Act and the EO Discretion gives a good indication that the welfare of society is best served by causes of action being litigated within a six-year time frame at least; and

(g) the public interest favours dismissal or striking out. It is not in the public interest for persons to be confronted many years after the event with serious allegations which, whether or not proved, will produce considerable consequences for them.[72]

79 The Member concluded that there had been a significant delay by Ms Lanigan in commencing the proceeding:

I am satisfied that all matters complained of relating to sexual harassment and victimisation by the First and Second Respondents up to and including 2016 were alleged contraventions of the EO Act that did not occur within the 12-month period, under the EO Discretion, prior to the application being made. As such there has been a delay in bringing these proceedings, and in relation to many, if not most, of the allegations, an inordinate delay.[73]

80 After reviewing evidence filed on behalf of Ms Lanigan which sought to explain the reasons for the delay, the Member concluded as follows:

The evidence provided by Ms Lanigan falls well short of her assertions that she had a reasonable explanation for delaying in lodging this application. In the circumstances where the medical evidence is lacking over a period of time where Ms Lanigan is said to be incapable of enforcing her rights because of her health, where she was actively engaged in seeking employment, starting a business and working at various locations around Australia within the industry said to be crippling her, was posting comments on social media and then applying for and undertaking study in a new career path, I find that Ms Lanigan does not have a reasonable explanation for the delay in initiating this application.[74]

81 The Member then turned to the question of whether Circus Oz had established that Ms Lanigan's delay in commencing the proceeding had or would cause prejudice in defending the proceeding. The Member noted that after the hearing of the strike out application on 8 November 2019 Circus Oz and Mr Yates were provided with an opportunity to submit evidence of prejudice flowing from Ms Lanigan's delay in commencing the proceeding.[75] The Member also noted that during the first strike out application Mr Wilson had provided an affidavit in which he denied the allegations of sexual harassment. The Member concluded as follows on the question of whether the respondents were prejudiced by the delay:

There was no direct evidence presented by the Respondents of an inability by the employee, or any other witness, to recall any event or fact that is alleged by Ms Lanigan to have taken place. Whether or not an event took place, or took place in the manner described, will be a question of fact and one that should be determined at a hearing. The quality of that evidence or the weight to be attributed to it, due to the passage of time, is a matter for submissions at a final contested hearing.

Ms Lanigan will have the burden of satisfying the Tribunal to a comfortable degree that the facts she says occurred, did occur in the manner she alleges. If there is any detriment or prejudice arising from the delay, then an assumption can just as easily be drawn that it is more prejudicial to the Applicant than it is to the Respondents.

...

While there has been an inordinate, unexplained, delay by Ms Lanigan in initiating this cause of action, I am not satisfied that the Respondents have established that they have been unfairly prejudiced such that they will be denied a fair hearing or that it is against the interests of justice.

I refuse the application to strike out or summarily dismiss Ms Lanigan's claim on the basis of delay.

Proposition 3: No complaint of sexual harassment in the Book

82 The Member made the following finding in relation to proposition 3:

Circus Oz submits that the Book does not contain an allegation of sexual harassment in contravention of the EO Act. It submits that without a founding instance of alleged sexual harassment, there cannot be any victimisation in contravention of the EO Act.

Circus Oz states that the particularisation of the sexual harassment, in the FAPOC, now demonstrates that (a) the Book does not contain the events said to give rise to the incidence of sexual harassment and (b) that Ms Lanigan makes no complaint about sexual harassment in the Book. Circus Oz submits that without any allegation of sexual harassment in the Book, there is no proper basis for any of the claims made prior to Ms Lanigan's complaint to Circus Oz in 2017 and her direct victimisation claims are misconceived and lacking in substance.

Ms Lanigan refutes the claim and says her FAPOC particularise the incident of sexual harassment and her complaint. She refers to and relies on paragraphs 11 to 28 of the FAPOC.

In my view this allegation was raised by the Respondents in the first strike out application, and they should be estopped from raising it again here. In submissions at the time, Mr Hupe [sic] stated -

So there was no sexual harassment and then there was no allegation of sexual harassment re Katherine [sic] and Jonno [sic] in the book which is partly a work of fiction, partly autobiographical.

Additionally, it was one of the points Senior Member Steele referred to in her reasons for decision.

The further particularisation of the incident of sexual harassment in the FAPOC does not impact or effect whether or not there is an allegation of sexual harassment contained within the Book. Senior Member Steele has determined this matter and I refuse to revisit it on the premise suggested. The application to summarily dismiss or strike out the matters that flow from the allegation of sexual harassment is refused.[76]

83 The amended notice of appeal sets out seven questions of law and ten grounds of appeal. At the hearing of the application counsel for the respondents withdrew any reliance on question of law 2 and appeal ground 10 relating to the adequacy of the Tribunal's reasons. The remaining questions of law and grounds of appeal are directed to two discrete issues:

(i) The Tribunal's failure to strike out Ms Lanigan's claim on grounds of delay;

(ii) The Tribunal's failure to strike out the claims as misconceived and lacking in substance.

84 The written submissions filed by Circus Oz identify appeal grounds 1 to 5 as establishing errors of law in respect of the Tribunal's failure to exercise the power of summary dismissal for want of prosecution under s 76 VCAT Act. The submissions identify appeal grounds 7 to 9 as establishing errors of law in the Tribunal's failure to exercise the power of summary dismissal under s 75 VCAT Act on the grounds that the proceedings are frivolous, vexatious, misconceived or lacking in substance or otherwise an abuse of process.

85 Given the substantial issues raised by question of law 4, I propose to deal first with that question. I will then address the balance of Circus Oz's question of law.

Whether the Tribunal erred in its consideration of the doctrine of estoppel.

87 This question of law relates to the Tribunal's consideration of proposition 3: 'No complaint of sexual harassment in the Book'. The Member set out her reasons in respect of proposition 3 at [100] to [104] of the decision. These paragraphs are set out above and I do not repeat them. The Tribunal concluded at [103] that an estoppel arose in relation to the question of whether the Book disclosed an allegation of sexual harassment.[77]

88 The Member did not identify the specific type of estoppel which precludes Circus Oz from raising the issue of whether the Book contained an allegation of sexual harassment. An Anshun estoppel operates to preclude a party from asserting a claim, or raising an issue of fact or law, in circumstances where the 'claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding'.[78] An Anshun estoppel is an estoppel by omission: the relevant trigger for the doctrine's operation is an unreasonable failure to raise a particular issue.

89 There is no basis upon which the Member could have concluded that the principles relating to Anshun estoppel were engaged. Rather, the Member's reference to estoppel is properly read as a reference to issue estoppel. An issue estoppel prevents a party, in a subsequent proceeding, from raising an issue which has previously been resolved in a final judgment.[79] Issue estoppel differs from res judicata in that the latter involves the extinguishment of a cause of action, whereas the former relates to specific issues that were necessarily resolved by the determination of a judgment. Insofar as the Member concluded that Circus Oz was estopped from contending that there was no allegation of sexual harassment in the Book, the Member should be taken to have concluded that the question of whether the Book contained an allegation of sexual harassment had been raised and determined in the first strike out application. The relevant passage in Senior Member Steele's reasons for dismissing the first strike out application is as follows:

The first respondent also submitted that the Applicant's book, which was said to be the reason why Mr Wilson victimised her, did not allege that she had suffered sexual harassment. Again, the Tribunal has had no opportunity to assess whether the book does or does not allege sexual harassment. If it does not, then the allegations of victimisation by Mr Wilson and possibly those of authorising and assisting victimisation fail.[80]

90 Two issues arise regarding the application of issue estoppel flowing from the decision of Senior Member Steele. First, whether an issue estoppel can arise from the determination of the first strike out application, which was an interlocutory proceeding. Second, whether the issue decided by Senior Member Steele differs from the issue which was before Member Campana.

91 An issue estoppel only arises in respect of a final decision. An interlocutory determination of an issue may, in some circumstances, be considered a final decision of a particular issue and therefore give rise to an issue estoppel in respect of that issue.[81] However, this is not such a case. Senior Member Steele's decision was not a final determination of whether the Book disclosed an allegation of sexual harassment. In her reasons, the Senior Member noted that 'the Tribunal has had no opportunity to assess whether the Book does or does not allege sexual harassment'.[82] While the Senior Member heard submissions on the matter, the Senior Member did not express a concluded view on the issue. The Senior Member could not decide whether the Book disclosed an allegation of sexual harassment, as the contents of the Book were not before her.

92 If I am wrong about the interlocutory character of Senior Member Steele's decision, the change in circumstances between the handing down of the decision on the first strike out application and the second strike out application leaves no room for the application of issue estoppel. The pleading at the time of the first strike out application contained little detail about the contents of the Book and how it related to the allegation of sexual harassment. The pleading had been prepared by Ms Lanigan herself, prior to her retaining a solicitor. In the intervening period, Ms Lanigan's pleadings were amended twice with the FAPOC being filed on 16 April 2019. The FAPOC was drafted by her solicitor and contained greater detail on the allegation of sexual harassment that was said to be contained in the Book.

93 Ms Lanigan's pleaded claim that she was victimised by the respondents has been significantly amended. Circus Oz should not be estopped from pressing its strike out claim in respect of the pleadings as amended. The issue decided by Senior Member Steele was confined to consideration of whether the pleadings as they stood at the time of the first strike out application properly spelled out Ms Lanigan's case.

94 The Tribunal Member erred in concluding that Circus Oz was estopped from contending that the Book does not contain an allegation of sexual harassment. However, there is no utility in granting leave to appeal in respect of question of law 4. There is no point remitting to the Tribunal the question of whether the Book contains an allegation that Ms Lanigan was sexually harassed by Mr Wilson. For the reasons set out below, I have concluded that Ms Lanigan has a real prospect of establishing that the Book does contain an allegation of sexual harassment.

95 It is necessary to set out relevant provisions of the EO Act relating to sexual harassment and victimisation. Part 6 of the EO Act is headed 'Prohibition on sexual harassment'. Section 92 sets out the meaning of sexual harassment:

92 What is sexual harassment?

(1) For the purpose of this Act, a person sexually harasses another person if he or she -

(a) makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person; or

(b) engages in any other unwelcome conduct of a sexual nature in relation to the other person -

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.

(2) In subsection (1) conduct of a sexual nature includes -

(a) subjecting a person to any act of physical intimacy;

(b) making, orally or in writing, any remark or statement with sexual connotations to a person or about a person in his or her presence;

(c) making any gesture, action or comment of a sexual nature in a person's presence.

96 Section 103 provides that a person must not victimise another person. Section 104(1)(g) provides:

A person victimises another person if the person subjects or threatens to subject the other person to any detriment because the other person, or a person associated with the other person -

(g) has alleged that any person has contravened the provision of Part 4 or 6 of this Part, or Part 3, 5 or 6 of the Old Act, unless the allegation is false and was not made in good faith.

It is sufficient for sub-section (1)(g) that the allegation states the act or omission that would constitute the contravention without actually stating that this Act or a provision of this Act, has been contravened.

98 Ms Lanigan contends that the respondents victimised her because she alleged that Matt Wilson sexually harassed her. Ms Lanigan contends that her book, 'A True History of the Hula Hoop', provides an account of Mr Wilson sexually harassing her. Ms Lanigan contends that the Book provides details of Mr Wilson making an unwelcome sexual advance, or engaging in other unwelcome conduct of a sexual nature, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that she would be offended or humiliated.

99 The Book does not identify Ms Lanigan and Mr Wilson by name. Rather, the two key characters are identified as Catherine and Johnno. It is common ground that on 13 August 2009 Mr Wilson sent an email to, amongst others, the artistic director and the three co-CEOs of Circus Oz. The email stated as follows:

Dear everybody, you may or may not have heard about the book a true history of the Hula Hoop by Ms Judith Lanigan. It is a mostly autobiographical account of her life. Some but not all names have been changed but the fact is that in many cases, permission was not always sought from those who figure in the book and if it was the exact nature of the content was presented misleadingly before going to press. The book has offended many people. Their personal lives (and in my case, my family) have been put in the spotlight. Please don't support this writer by buying this book. Instead, if you want to do something write to publicity@panmacmillan.com.au and let them know. Also feel free to forward this on to those it may be relevant to. All the best, Matt Wilson

100 In their reply to Ms Lanigan's FAPOC the respondents plead at [22] that third parties could infer that the character 'Johnno' was Mr Wilson. The particulars to [22] are as follows:

The Book describes a man performing a circus act involving a balancing on multiple chairs. This describes Mr Wilson's circus act. Given the rarity or uniqueness of the act, this is likely to cause third parties who know the applicant and Mr Wilson to infer that she was writing about him in her book.

101 The email which Mr Wilson is alleged to have forwarded to Circus Oz on 13 August 2009 describes the Book as 'largely autobiographical'. Further, in their reply to the FAPOC the respondents accept that third parties might infer that the character 'Johnno' is Mr Wilson. If the Book does detail conduct by 'Johnno' which is sexual harassment within the meaning of s 92 EO Act, Ms Lanigan has a real prospect of establishing that the Book details an allegation of sexual harassment by Mr Wilson. If Ms Lanigan can establish that the respondents subjected her to detriment because she made the allegation of sexual harassment, she has a real prospect of establishing that she has been victimised within the meaning of s 104(1)(g) EO Act.

102 The respondents submitted before the Tribunal that the victimisation claim has no prospect of success because the Book does not contain an allegation that Ms Lanigan was sexually harassed. In order to address this submission it is necessary to refer to relevant passages of the Book. Annexure 'A' to this judgment consists of four pages from the Book relied upon by Ms Lanigan in the present proceeding as detailing an allegation of sexual harassment. The extract from the Book records Johnno kissing Catherine. The act is consensual. At the time Johnno kisses Catherine he is not engaging in unwelcome conduct. To the contrary, after Johnno has left, Catherine is 'marvelling at the turn of events and wondering what it all means'. She wonders, '[i]s this love?' and '[s]he realises that in some sweet corner of her soul she has tucked away the fact of Johnno since the night she saw him stack the chairs.'

103 The Book also records that shortly after Johnno left, Catherine received a text message from his wife: 'You daughter of Satan, stop trying to steal my husband'. Immediately thereafter, Johnno calls Catherine and tells her that he has told his wife that he really likes Catherine. He tells Catherine that his wife thinks that he and Catherine are having an affair. The following day Catherine meets a friend at a café. She recounts having received a telephone call that morning from a friend telling her to stop trying to break up Johnno's marriage. Catherine also recounts having met a group of performers who would normally hug and kiss her, but who would not even say hello.

104 Mr Harmer, who appeared for Ms Lanigan, submits that conduct of a sexual nature, although not unwelcome at the time it occurs, may become unwelcome as a result of subsequent events. He submits that by reason of the text message Catherine received from Johnno's wife, the telephone call from a friend, and being shunned by fellow performers, the kiss became unwelcome conduct of a sexual nature. Mr Harmer submits that the definition of sexual harassment in s 92 requires consideration of whether a reasonable person having regard to all the circumstances would have anticipated that Ms Lanigan would be offended or humiliated. Mr Harmer submits that 'all the circumstances' includes Mr Wilson telling his wife of his affection for Ms Lanigan, a friend of Ms Lanigan's telling her to stop trying to break up Mr Wilson's marriage and Ms Lanigan being shunned by fellow performers.

105 I accept Mr Harmer's submission that it is arguable that by reason of subsequent events an individual who welcomed conduct of a sexual nature at one point in time may subsequently regard the conduct as unwelcome. For example, an individual might willingly engage in sexual activity with another person in the belief that the person is single and interested in a long-term relationship. Subsequently, the individual might discover that the other person is married with children. It is arguable that conduct of a sexual nature which was welcomed when it initially occurred would be considered unwelcome once the individual becomes aware of having been deceived.

106 It is arguable that the phrase 'all the circumstances' in s 92 EO Act encompasses circumstances not known at the time conduct of a sexual nature is engaged in, but which subsequently comes to light. It is arguable that in light of all the circumstances conduct of a sexual nature which was welcomed at the time it occurred, might become unwelcome within the meaning of s 92 EO Act. Ms Lanigan has a real prospect of establishing that the Book does contain an allegation that she was sexually harassed.

107 It follows from this conclusion that if the Tribunal erred in concluding that Circus Oz is estopped from contending that the Book does not contain an allegation of sexual harassment, there is no utility in granting leave to appeal in respect of question 4. If the Tribunal had come to a different conclusion such that Circus Oz was not estopped from contending that the Book does not contain an allegation of sexual harassment, there would have been no basis for the Tribunal to summarily dismiss Ms Lanigan's claim on the grounds that the Book does not contain an allegation of sexual harassment.

Whether the Tribunal failed properly to exercise its discretion under ss 75 and/or 76 of the VCAT Act to strike out or summarily dismiss the respondent's (Ms Lanigan) claims the subject of the application (Claims).

109 Under s 148 VCAT Act an appeal lies only on a question of law. In McSteen v Architects Registration Board[83] the Court of Appeal stated:

That limitation expresses in the clearest terms the legislature's intention that the Supreme Court, in hearing such an appeal, is not to be concerned with the merits of the case.[84]

110 Pursuant to s 148(2A) the Court may only grant an application for leave to appeal if it is satisfied that the appeal has a real prospect of success. I refuse to grant leave to appeal in respect of the question of law 1. The question of law does not disclose in what respects the discretion under ss 75 and/or 76 of the VCAT Act was not properly exercised or how such failure to properly exercise the discretion constitutes an error of law. In truth, the question of law is an invitation for the Court to revisit the merits of the proceeding before the Tribunal. This is not permissible in an application for leave to appeal under s 148 which is in the nature of an application for judicial review.

In determining whether to strike out or dismiss the Claims on grounds of delay, the Tribunal erred by failing to consider the merit of the Claims, and by refusing or failing to take into account extracts of a book (The History of the Hula Hoop) (Book) which were before the Tribunal and which were relevant to the assessment of merit.

112 Circus Oz's written submissions identify appeal ground 1 as being relevant to the Tribunal's exercise of the power of summary dismissal for want of prosecution under s 76 of the VCAT Act. In respect of appeal ground 1, Circus Oz submitted as follows:

The strength of Ms Lanigan's claims was a relevant consideration in determining whether to dismiss claims for reasons including delay. By failing to consider the merits of the claims for this purpose (or at all), the Tribunal made an error of law.[85]

113 A failure to take account of a relevant consideration will constitute an error of law if the consideration is one that the decision maker is, by law, bound to take into account.[86] Any failure by the Tribunal to have regard to the strength of Ms Lanigan's claims does not constitute an error of law for the purposes of the exercise of the discretion conferred by s 76 of the VCAT Act because s 76 does not require the Tribunal to have regard to the strength of a claim when exercising the power conferred by s 76. If question of law 1 is to be read such that the failure to properly exercise the discretion conferred under s 76 arose by reason of the failure of the Tribunal Member to have regard to a relevant consideration, being the strength of Ms Lanigan's claims, the question of law has no prospect of success.

114 Further, even if the Tribunal did err in failing to consider the merits of Ms Lanigan's claims, there is no utility in granting leave to appeal in respect of question of law 1. For the reasons set out above in respect of question of law 4, I have concluded that Ms Lanigan does have a real prospect of establishing that the Book contains an allegation of sexual harassment. In light of this conclusion, there would be no utility in remitting the proceeding to the Tribunal for further hearing to address the question of whether the proceeding should be struck out under s 76 VCAT Act on the grounds of being misconceived, and/or lacking in substance.

Whether the Tribunal mischaracterised the nature of the Strike Out Application and/or an earlier application in the Proceeding to summarily dismiss or strike out Ms Lanigan's claims (first strike out application).

116 This question of law is misconceived. There is no basis for concluding that the Tribunal misconceived the nature of the strike out application. The Member set out ss 75 and 76 of the VCAT Act and summarised the legal principles relevant to the exercise of the discretion conferred by these provisions. The Member summarised the respondent's submissions and addressed the four propositions which underpinned the respondent's strike out application. The Tribunal did not mischaracterise the nature of the application. Leave to appeal in respect of question of law 3 is refused.

Whether the Tribunal failed or refused to take into account relevant considerations.

118 Leave to appeal in respect of question of law 5 must be refused for the same reasons discussed in respect of question of law 1. Circus Oz contends that the strength of Ms Lanigan's claims was a relevant consideration in determining whether to dismiss claims for reasons including delay. Circus Oz contends that by failing to consider the merits of the claims for this purpose, or at all, the Tribunal made an error of law.[87] Section 76 of the VCAT Act does not prescribe that a decision maker is bound to take into account the merits of an applicant's claim when determining whether to exercise the discretion to summarily dismiss a proceeding for want of prosecution.

Whether the Tribunal's decision not to strike out or dismiss claims on the grounds of delay was manifestly unreasonable.

120 Question of law 6 is to be read in conjunction with appeal ground 2: 'There was no evident and intelligible justification for the Tribunal's refusal to strike out or dismiss the Claims, or any of them, on the basis of delay'.

121 Both question of law 6 and appeal ground 2 relate to the respondent's contention that the tribunal erred by failing to make an order under s 76 to strike out the proceeding for want of prosecution.

122 In Minister for Immigration & Citizenship v Li the plurality in the High Court held that a decision is unlawful by reason of legal unreasonableness if there is no evident and intelligible justification for the decision.[88] In Minister for Immigration & Border Protection v SZVFW Gordon and Nettle JJ stated that it would be a rare case to find that the exercise of a discretionary power was unreasonable where the reasons of the decision maker demonstrated a justification for the exercise of the power.[89] The test for legal unreasonableness is a stringent one.[90]

123 A decision will not be unreasonable if it lies within the scope of rational decision making, 'if there is room for a logical or rational person to reach the same decision on the material before the decision maker'.[91] In judicial review proceedings it is not the court's function to undertake a review of the merits of an exercise of discretionary power; 'a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision maker'.[92] A logical person could have reached the same decision as the Tribunal Member, in refraining from dismissing the proceeding for want of prosecution under s 76.

124 The proceeding was commenced by application filed on 25 July 2018. The respondents applied pursuant to s 75 of the VCAT Act to strike out the proceeding. This application was heard by Senior Member Steele on 5 December 2018. The application was partly successful with the Tribunal striking out claims that Circus Oz breached s 106 of the EO Act by failing to disassociate itself from alleged conduct of Matt Wilson. Ms Lanigan was directed to file amended particulars of claim by 7 February 2019. Ms Lanigan filed amended particulars of claim dated 27 January 2019. Subsequently, after making and withdrawing an application for summary orders under s 78 of the VCAT Act, and then engaging lawyers, Ms Lanigan filed the FAPOC on 16 April 2019. On 8 July 2019 the respondents filed a further strike out application under ss 75 and 76 of the VCAT Act.

125 The history of the proceeding does not support a finding of want of prosecution. The power of summary dismissal for want of prosecution is enlivened in circumstances where an applicant, having commenced a proceeding, fails to take steps to prosecute the proceeding. Ms Lanigan complied with the orders of Senior Member Steele to file amended particulars of complaint. Her subsequent conduct in engaging lawyers and filing FAPOC does not support a finding of want of prosecution. The Tribunal's refusal to strike out the proceeding under s 76 for want of prosecution was not manifestly unreasonable.

126 Further, it was not manifestly unreasonable for the Tribunal not to have summarily dismissed the proceeding under s 75 by reason of Ms Lanigan's delay in commencing the proceeding. Circus Oz submitted before the Tribunal that Ms Lanigan's delay in commencing the proceeding was unfairly prejudicial to it and an abuse of process. The respondents brought a summary dismissal application in December 2018 under s 75. The application was partially successful. Senior Member Steele made orders for the filing of an amended complaint by Ms Lanigan. No appeal was filed by the respondents in respect of those orders. The respondents could have contended at the time of the first strike out application that the proceeding should be dismissed by reason of the delay in commencing the proceeding. They did not do so. Orders were made for the filing of amended particulars and were complied with. On the hearing of the second strike out application the Tribunal Member rejected a submission that the respondents should be estopped from advancing an abuse of process submission which could have been made at the time of the first strike out application. It is not necessary to address the correctness of that conclusion. However, the history of the proceeding is relevant to an assessment of whether the refusal of the Tribunal to summarily dismiss the proceeding on the ground of delay was legally unreasonable and therefore an error of law.

127 The fact that the proceeding continued beyond December 2018, without appeal by the respondents and with Ms Lanigan complying with the Orders to file an amended complaint, are matters which support a finding that it was reasonable for the Tribunal to refrain from summarily dismissing the proceeding as an abuse of process by reason of the delay in the commencement of the proceeding. So too, it was reasonable for the Tribunal to have had regard to the failure of the respondents to file any evidence of actual prejudice arising from Ms Lanigan's delay in commencing the proceeding. Leave to appeal on question of law 6 is refused.

Whether the Tribunal misapprehended its task in determining whether to strike out or dismiss claims on grounds of delay.

129 There is no basis for the respondent's contention that the Tribunal misapprehended its task in determining whether to strike out or dismiss claims on the grounds of delay. The Member set out ss 75 and 76 of the VCAT Act and the principles relevant to the exercise of the power conferred by those sections to summarily dismiss the proceeding. Whilst the respondents disagree with the exercise of the Tribunal's discretion conferred by ss 75 and 76, there is no basis for concluding that the Tribunal misapprehended its task. Leave to appeal on question of law 7 is refused.

130 In respect of Ms Lanigan's application for leave to appeal, leave to appeal is granted in respect of question of law 1 and the appeal upheld. Order 1 of the Orders made 24 November 2020 will be set aside. In respect of the respondent's application for leave to appeal, leave to appeal is not granted in respect of questions of law 1 to 7.

131 I will provide the parties with an opportunity to make submissions on the costs of the applications for leave to appeal and the appropriate form of order to give effect to this judgment.

[1] Lanigan v Circus Oz [2020] VCAT 1318, [99] ('Lanigan').

[2] [2014] VSCA 142; (2014) 46 VR 49 ('Subway Systems').

[8] Ibid 68-9 [73]-[75] (citations omitted).

[11] Ibid 73-4 [96]-[99] (citations omitted).

[18] [2011] VSCA 266; (2011) 33 VR 559 ('Sudi').

[21] [2006] FCA 60; (2006) 148 FCR 276 ('Wood').

[26] [2008] FCAFC 104; (2008) 169 FCR 85 ('Commonwealth v ADT').

[29] See also Trust Company of Australia Ltd (t/as Stockland Property Management) v Skiwing Pty Ltd (t/as Caf Tiffany's) [2006] NSWCA 185; (2006) 66 NSWLR 77.

[33] First and Second Respondents, 'Submissions', 20 August 2021, [38]-[39].

[35] Transcript of Proceedings, T 83 L 9-11; T 87 L 12-14 (5 October 2021).

[36] O'Connor v SP Bray Ltd [1937] HCA 18; (1937) 56 CLR 464, 478.

[37] First and Second Respondents, 'Submissions', 20 August 2021, [41].

[38] [2003] NSWSC 500; (2003) 58 NSWLR 223.

[40] (1985) 3 NSWLR 565 ('Dao').

[41] Commissioner of Police v Estate of Russell [2002] NSWCA 272; (2002) 55 NSWLR 232, 243-4 [56] ('Estate of Russell'), quoting Butterworths, Halsbury's Laws of England, vol 45 (1985) Tort, [1201].

[42] [2014] VSCA 75; (2014) 50 VR 256 ('Christian Youth Camps').

[43] Ibid 346 [369]. This case concerned the now-repealed Equal Opportunity Act 1995 (Vic).

[45] [2001] NTSC 107; (2001) 165 FLR 25 ('Pinecot')

[46] Christian Youth Camps (n 42) 373-4 [457].

[50] Estate of Russell (n 41**)** 330 [66].

[51] Estate of Russell (n 41) 331 [70]-[71].

[52] [1975] VicRp 32; [1975] VR 345.

[53] [2000] VSCA 74; (2000) 1 VR 246.

[54] Estate of Russell (n 41) 332 [75].

[55] Equal Opportunity Act 2010 (Vic) s 188.

[56] Transcript of Proceedings, T 97 L 15-23 (5 October 2021); Applicants, 'Submissions', 5 July 2021 [95].

[57] [2021] VSCA 256.

[58] Ibid [47]-[48] (citations omitted).

[59] [2021] VSCA 120 ('Tucker').

[63] Secretary, Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331, 336 [14] ('Hulls').

[64] Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc [1981] HCA 39; (1981) 148 CLR 170, 177; Warburton Environment Inc v Vic Forests [2021] VSCA 194, [112].

[67] Applicants, 'Submissions', 5 July 2021 [59]-[64] (citations omitted).

[69] Osland v Secretary, Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320, 331-3 [18]-[21].

[70] Hulls (n 63) 335 [9], 336 [13]. See also Update Pty Ltd v Commissioner of State Revenue (Vic) [2014] VSCA 218; Naim v Medical Board of Australia [2013] VSCA 205; Myers v Medical Practitioners' Board [2007] VSCA 163; (2007) 18 VR 48.

[71] Lanigan (n 1) [43]-[51] (citations omitted).

[72] Ibid [53]-[57] (citations omitted).

[75] Ibid [79]. No evidence was filed.

[76] Ibid [100]-[104] (citations omitted).

[78] Tomlinson v Ramsey Food Processing [2015] HCA 28; (2015) 256 CLR 507, 517 [22].

[80] Lanigan v Circus Oz [2018] VCAT 1980 [34].

[81] See DA Christie Pty Ltd v Baker [1996] VicRp 89; [1996] 2 VR 582; Melbourne City Investments Pty Ltd v Leighton Holdings Ltd [2015] VSCA 235.

[82] Lanigan v Circus Oz [2018] VCAT 1980, [34].

[83] [2018] VSCA 96.

[85] Respondent, 'Submissions', 5 July 2021, [43].

[86] Love v Victoria [2009] VSC 215, [205]. See generally Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24, 39-42.

[87] Respondent, 'Submissions', 5 July 2021, [43].

[88] [2012] HCA 61; (2013) 249 CLR 332, 367 [76] ('Li').

[89] [2018] HCA 30; (2018) 264 CLR 541, 574 [84].

[91] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 649-50 [135]; see also Li (n 88) 377-8 [113].