Medium Neutral Citation [2002] VCAT 91

Pursuant to sections 75 an 109 of the Victorian Civil and Administrative Tribunal Act 1998 this Tribunal orders -

For the Complainant: Mr. L. Bandulla, in person (by phone)

[1] I have reserved my decision and I am now in a position to be able to hand it down. My decision is that the complaint is dismissed. I now give my reasons.

[2] In July 2001 Mr Bandulla complained to the Equal Opportunity Commission that the State of Victoria in its capacity of Victoria Police had discriminated against him in breach of the Equal Opportunity Act 1995 which I call the Equal Opportunity Act. I call the respondent in these reasons the State.

[3] The claim was that the discrimination was on the ground of race. In September 2001 the Commission declined the complaint under s.108(1)(a) of the Equal Opportunity Act. That permits the Commission to decline complaints which are frivolous, vexatious, misconceived or lacking in substance. Mr Bandulla, which was his right, then required the Commission to refer the complaint to VCAT.

[4] The State has now applied to have the complaint struck out under s.75 of the VCAT Act 1998 which I will call the VCAT Act. The application mentions four out of the five grounds referred to in that section and the State's submissions also mentioned a fifth ground. Those grounds are that a complaint is frivolous, vexatious, misconceived, lacking in substance or an abuse of process.

[5] The Tribunal has in numerous decisions, applied to applications of this kind the principles set out by the Victorian Court of Appeal in Rabel v. State Electricity Commission (1998) 1 VR 102. (See for example Norman v. Australian Red Cross Society (1998) 14 VAR 243). So far as is relevant here those principles are these. The Tribunal should be cautious before striking out and so summarily terminating a complaint and so depriving the litigant of the chance to have the case heard in the ordinary course. It should only do so where the complaint is manifestly hopeless or wholly untenable or unsustainable in fact or law.

[6] I have before me the complaint and particulars of complaint, written and oral submissions from the State and oral submissions from Mr Bandulla. This complaint arises from Mr Bandulla's conviction for trafficking in a drug of dependence in October 2000. For this offence he was sentences to six years imprisonment and is currently serving that sentence.

[7] On a reading of his complaint and particulars of complaint, his claims are these -

(a) that he was not provided with legal representation at his trial.

(b) that at his trial the prosecution witnesses lied under oath but the trial judge allowed the trial to continue.

(c) that at his trial police officers lied under oath.

(d) that the police instructed a prosecution witness to lie at his trial and paid that witness to do so.

(e) that the police failed to act on information given to the police by Mr Bandulla that he had been kidnapped by a Mr King and Miss Camilleri and they did so because these people would assist in having Mr Bandulla convicted.

(f) that in breach of the Listening Devices Act 1969, the police used a listening device to record conversations between Mr Bandulla and others.

(g) that Mr Bandulla's conviction and sentence in October 2000 constituted punishment for an offence in respect of which Mr Bandulla had earlier been convicted and sentenced.

(h) that the police undercover operation as a result of which Mr Bandulla was arrested and charged was conducted in breach of the Drugs, Poisons and Controlled Substances Act 1981.

[8] The State says firstly that the complaint is hopeless. It says that there is no allegation of discrimination in the complaint. I do not agree with this first submission. I take into account that Mr Bandulla is unrepresented with little knowledge of how a discrimination claim should be drafted. He has done all that he can do. He has told what he says is his story. The complaint itself does state that it is a claim of race discrimination. On a reading of the complaint as a whole it seems that Mr Bandulla is saying that he, a person of non Australian racial background, was treated less favourably than would have been a person who was of Australian racial background.

[9] While this allegation would need more particularisation if the claim survived it does not seem to me to be so vague, at least at this preliminary stage, that the claim should be struck out on the basis that it has been insufficiently particularised. Further particulars would be a better order to make in this case.

[10] However, the State then submits that this complain is hopeless because the issues raised in it have been the subject of an appeal by Mr Bandulla to the Victorian Court of Appeal. That court considered those issues and dismissed Mr Bandulla's application for leave to appeal. It would, the State says, be an abuse of process for this Tribunal now to reconsider those issues. I agree.

[11] A reading of the Victorian Court of Appeal's decision in R v. Bandulla (2001) VSCA 202 (31 October 2001) shows that all the issues raised in this complaint were raised in the grounds on which Mr Bandulla applied for leave to appeal the Victorian Supreme Court's decision. All these matters have been aired at Mr Bandulla's trial. The Court of Appeal found no reason to disturb his conviction and that no error was made by the trial judge.

[12] It considered that many of the grounds of the leave application were wholly without substance. Moreover, as far as the question of legal representation was concerned, the Court of Appeal noted that Mr Bandulla had in fact dispensed with legal representation granted to him in accordance with orders made by the Chief Judge of the County Court and had chosen to appear unrepresented at his trial.

[13] The Court of Appeal was satisfied that the trial judge took pains to ensure that Mr Bandulla's case was put properly, that procedures were exhaustively explained to him and also to ensure that he was not disadvantaged by his lack of legal representation.

[14] In so far as the complaint claims breaches of the Drugs, Poisons and Controlled Substances Act and the Listening Devices Act the claims are misconceived because they are claims of breaches of other legislation. They are not claims of breaches of the Equal Opportunity Act. I also note that the Court of Appeal found no error in the trial judge's conclusions that the claims of breaches of these other statutes were without substance.

[15] It would be an abuse of process to raise as a discrimination issue before this Tribunal allegations which the Victorian Supreme Court had concluded were without substance in circumstances where the Court of Appeal had upheld that conclusion.

[17] The relief which Mr Bandulla seeks before this Tribunal is not clear. However, to the extent that he seeks an order from this Tribunal which would have the effect of overturning his conviction, that is relief which in my view this Tribunal has no power to grant under the Equal Opportunity Act. Although s.136 of the Equal Opportunity Act is very wide as to the orders which the Tribunal can make if it finds a complaint approved, it does not expressly include relief of the kind sought.

[18] There is another forum in which Mr Bandulla can raise these issues. That is the forum of appeal from the Supreme Court's decision. He has accessed this forum and his application for leave to the Victorian Court of Appeal has been dismissed.

[19] Next, I note that the Equal Opportunity Commission characterised his complaint as a complaint of race discrimination in the provision of goods or services. This claim must be in relation to the provision of services.

[20] While the administration of justice or access to justice might well be capable of being characterised as services for the purposes of s.42 of the Equal Opportunity Act I find great difficulty in characterising a criminal trial, a trial for a criminal offence as a service to the accused within the meaning of that section. It is not something voluntarily provided or received. It is governed in large part by statute. It is not discretionary in the sense of being capable of being refused to an alleged offender. When one looks at s.42(1) among other things it covers refusal of a service. In other words there must be a service which is capable of being refused.

[21] I do not, however, need to say more about this because it is ultimately not necessary for me to come to a final decision on this matter. I have decided this matter on other grounds. I should also say that because of my decision it has been unnecessary for me to consider the other grounds raised by the State. It is my view that this complaint is not curable by amendment. It should therefore be dismissed under s.75 of the VCAT Act. That concludes my reasons for decision.