1. Section 75 of the Victorian Civil and Administrative Tribunal Act authorises the Tribunal to effect summary dismissal of proceedings which are frivolous, vexatious, misconceived, lacking in substance or otherwise an abuse of process. The section broadly covers the same area as Order 23 of the Rules of the Supreme and County Courts.
2. The principles which govern the disposition of applications under Section 75 are well established and need not be traversed at length here. In General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, 129-130 Barwick CJ said of the power of summary dismissal:

... the need for exceptional caution in exercising the power whether it be inherent or under statutory rules is the same. Dixon J. (as he then was) sums up a number of authorities in Dey v. Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 where he says (1949) 78 CLR, at p 91 : "A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process. " Although I can agree with Latham C.J. in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings (1949) 78 CLR, at p84, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.

1. The application of these principles in the Tribunal was considered in detail by Deputy President McKenzie (as she then was), in Norman v Australian Red Cross Society (1998) 14 VAR 243.
2. I proceed in accordance with those principles.

1. Mr Wilkins said that the Baxters' complaint was made in reliance on the Victorian Equal Opportunity Act 2010. He said, in contrast to the now repealed Fair Trading Act 1999 there is nothing in the Equal Opportunity Act stating that it intended have extra territorial effect. He submitted that the only conduct comprehended by the Victorian Equal Opportunity Act was that which occurred in Victoria. He referred to Gluyas v Google Inc [2010] VCAT 540 and Cooper v State of Victoria [2002] VCAT 589. He continued:

Reid v Jet Aviation Management [2000] VCAT 1848 indicates that a matter can fall beyond the reach of the EO Act even where certain elements of dispute occurred within or are connected with Victoria.

1. He said that there is no discriminatory behaviour alleged against Air New Zealand taking place in Victoria. In particular, he said, first, the Baxters' request for carriage 'of an emotional support dog was made to Air NZ in New Zealand'. Next, he said that request was considered by Air New Zealand in Auckland, New Zealand and the decision to decline carriage was made in New Zealand and 'communicated to the applicant by telephone from Auckland, New Zealand'. He said that Air New Zealand's booking system was 'located and hosted on mainframe computers in New Zealand' and any contract for carriage 'arose in New Zealand'.
2. He said the Baxters were seeking carriage by international flight to and from Auckland in New Zealand but also for a domestic flight within New Zealand from Christchurch to Auckland. He continued:

Even if the EO Act could be construed so as to apply as per the applicant's submission ... to the initial boarding procedures in respect of the flight from Melbourne to Auckland (such an interpretation is denied by Air NZ and ignores the three and a half hour international flight itself and the similar disembarkation processes at the destination in respect of that flight) the same clearly cannot be said in respect of the domestic NZ flight nor the international flight departing Auckland, all of which were part of the travel arrangements sought by the applicant.

1. He said the only connection with Victoria 'is that the applicant resides in Victoria and as a result was to board an international flight which was departing from Melbourne Airport'. Finally, he noted that Air New Zealand Limited was incorporated in New Zealand and has its head office in Auckland and is managed from Auckland.
2. Mr Wilkins made further submissions based on US DoT 14 CFR Part 382. This is apparently a set of regulations issued by the United Sates Department of Transportation. These regulations could presumably be obtained via the internet, though their text was not placed before me.
3. Mr Wilkins said:

If the EO Act could be said to apply to international travel, its implementation would inevitably lead to conflict of law between the EO Act and the laws of foreign countries (given that an international journey of necessity begins or ends in a separate sovereign nation).

1. Carriers would be exposed to 'double jeopardy' of being 'penalised for infringing the EO Act or penalised or infringing the laws of the foreign nation'. I took this submission to mean that he was contending that the US regulations might require Air New Zealand to do or abstain from doing what the Victorian Equal Opportunity Act would prohibit if applied to an international flight. He continued:

Such a proposition would not have been the intent of the Victorian Parliament.

Air NZ refers the Tribunal to the contrasting position of US Federal legislation which specifically addresses non-discrimination on the basis of air travel, US DoT 14 CFR Part 382. By contrast, CFR Part 382 specifically provides a conflicts of law waiver process such that carriers are not left in the impossible position of being unable to comply with conflicting legal requirements of separate sovereign nations.

This stood in contrast, he said, from the Equal Opportunity Act's 'broad brush' approach. The American legislation he said gave

Careful consideration as to what conduct which may otherwise be deemed as discriminatory behaviour is permitted in respect of air travel. For example, carriers are permitted to deny transportation to qualifying individuals with disabilities in certain circumstances (382.19), to require passengers to provide medical certificates (382.23), for travel with a safety assistant (382.29), to deny carriage in the cabin of certain unusual service animals (eg. snakes, reptiles, ferrets, rodents and spiders (and in the case of non-US carriers, all service animals other than dogs) or to other animals where any factors preclude their travelling in the cabin as service animals (eg. whether the animal is too large or heavy to be accommodated in the cabin, whether the animal would provide a direct threat to the health or safety of others, whether it would cause a significant disruption of cabin services) (382.117), to exclude a passenger from the seat on the basis of disability to comply with FOA applicable foreign government safety regulations (382.87(a)).

1. His client did not say that those matters were exhaustive

but are indicative of some matters unique to air travel which have been given robust consideration (and made the subject of consultation with airlines who fly to, from and within the United States of America) by the US Department of Transport [scil Transportation] before pursuing the enactment of those laws.

Under 14 CFR Part 382, for passengers wishing to travel with a qualifying service animal in the aircraft cabin, there are requirements for a flight that is scheduled to take eight hours or more for the passenger to provide documentation stating that the animal will not need to relieve itself, or can relieve itself in a way that does not create a sanitation hazard (382.117(a)(2)). This is the form that was mistakenly sent to Grand Pacific Tours [the Baxters' travel agent] and which were subsequently filled out by Mr Baxter.

He concluded therefore, that the Equal Opportunity Act was never intended, and could not be construed, to cover international air travel

1. Ms Ellyard of counsel represented the Baxters. She submitted that the Equal Opportunity Act shows that Parliament intended a person in Victoria with an attribute and subjected to less favourable treatment on the basis of that attribute should be able to seek redress irrespective of where the decision or action that formed part of the discrimination occurred.

This is because the concept of discrimination involved a number of inexplicably linked elements; some connected with the person whose conduct is infirmed, some connected with the victim. Parliament intended that a victim of discrimination could seek redress under the Act if all or some of the elements of discrimination are within Victoria but not if none of those elements is within Victoria [Ristevska v Australian Olympic Committee Inc [1996] VADT 34].

1. She said it was irrelevant that the respondent was incorporated outside Victoria or managed outside Victoria. She referred to Reid v Jet Aviation Management Ag [2000] VCAT 1848. She said providing a travel service did entail the provision of a service within the meaning of the Act. She referred to Maguire v Sydney Organising Committee for the Olympic Games; Hreoc No. H 99/115 (18 November 1999). Support services for disabilities were ancillary to the services provided by an airline and not a separate service. She referred to King v Jetstar [2012] FCA 8. She said that there must be a connection between a foreign entity in Victoria for the Tribunal to have jurisdiction 'but that connection can be remote'. She referred to BGP International Pty Ltd v Fook Heat Tong Kee Pty Ltd [2005] VCAT 2362. Services would have been provided in Victoria. She referred to boarding, baggage handling, issuing of tickets etc. She said:

The relationship of service provision of contract of carriage between [the applicant] and a New Zealand company ... was clearly established and formed in Victoria.

1. The booking was made in Victoria through a local travel agent and dog documentation was submitted at the Melbourne office following instructions from the New Zealand company. The flight departs from Melbourne. She said the effects of the impugned conduct were felt by the applicant in Victoria.
2. She said the onus was on Air New Zealand to satisfy the Tribunal that there should be a summary dismissal. She referred to Norman v Australian Red Cross Society. Caution should be exercised before summarily determining a matter. It should only occur where a proceeding was 'obviously hopeless'. She said:

A complaint cannot be struck out as lacking in substance because it does not itself contain the evidence, which supports the claim.

1. She said the Tribunal should hear the applicant's evidence to determine the various geographical questions.

1. Section 48(b) of the Interpretation of Legislation Act 1984 provides inter alia:

(b) a reference to a locality, jurisdiction or other matter or thing shall be construed as a reference to such locality, jurisdiction or other matter or thing in and of Victoria.

1. In Reid v Jet Aviation Management AG [2000] VCAT 1848 Deputy President Mackenzie (as she then was), regarded this provision as establishing a presumption that the Equal Opportunity Act 1995 was intended to refer to matters in Victoria and not to matters outside Victoria. There is no reason to assume that the 2010 Act has any different operation. In this respect, it stands in contrast from the Fair Trading Act 1999 considered by the Tribunal in BGP International Pty Ltd v Fook Heat Tong Kee Pty Ltd [2005] VCAT 2362 which by Section 6 stated an intention on the part of the Victorian Parliament to operate both within and outside Victoria. As I remarked in Gluyas' case at [32]:

Again, whilst Section 2(1) of the Australia Act 1986 empowers Victoria's Parliament to legislate extraterritorially, so long as the extraterritorial legislation can be seen as for the peace, order and good government of Victoria, nevertheless no party has contended that enacting the Equal Opportunity Act 1995 the Victorian Parliament was purporting to legislate extraterritorially in exercise of their power granted and conferred to it by Section 2(1) of the Australia Act.

1. In Reid's case Deputy President Mackenzie of the 1995 Act and her views seem apposite to the Equal Opportunity Act 2010:

The circumstances on which the Equal Opportunity Act operates are then the relationship specified in the particular provision of the Act and the conduct or treatment which is prohibited. In my view if the relevant relationship is formed in Victoria or if the prohibited contact occurs in Victoria the Equal Opportunity Act will apply and it is then irrelevant to the application of that Act. Complainant or respondents lives in or outside Victoria, whether the respondent, if a company, was incorporated in or carries on business within Victoria or whether the complainant suffers loss or damage in or outside Victoria.

1. Section 7(1)(a) of the Equal Opportunity Act 2010 prohibits direct or indirect discrimination on the basis of an attribute. The submissions made on behalf of Air New Zealand do not traverse the details of discrimination law. I will therefore proceed on the footing that, the issues raised by Air New Zealand apart, what is complained of by the Baxters might constitute discrimination. Section 8(1) of the Equal Opportunity Act 2010 provides:

8(1) Direct discrimination occurs if a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute.

1. An employer advises an employee that she will not be trained to work on new machinery because she is too old to learn new skills. The employer has discriminated against the employee by denying her training in her employment on the basis of her age.
2. A real estate agent refuses an African man's application for a lease. The real estate agent tells the man that the landlord would prefer an Australian tenant. The real estate agent has discriminated against the man by denying him accommodation on the basis of his race
3. Also relevant are sub-sections 7(2), (3) and (4) which are to the following effect:

7(2) Discrimination on the basis of an attribute includes discrimination on the basis -

(a) that a person has that attribute or had it at any time, whether or not he or she had it at the time of the discrimination;

(b) of a characteristic that a person with that attribute generally has;

(c) of a characteristic that is generally imputed to a person with that attribute;

(d) that a person is presumed to have that attribute or to have had it at any time.

(3) For the purposes of subsection (2), if a person with a disability is accompanied by or possesses an assistance aid, being accompanied by or the possession of that assistance aid is taken to be a characteristic that a person with that attribute generally has.

assistance aid means any of the following that alleviates the effects of a person's disability -

(a) equipment (including a palliative or therapeutic device);

(b) a person who provides assistance or services to a person with a disability;

1. I should also note Section 9(1) which defines 'indirect discrimination' in the following terms:

9(1) Indirect discrimination occurs if a person imposes, or proposes to impose, a requirement, condition or practice -

(a) that has, or is likely to have, the effect of disadvantaging persons with an attribute; and

1. Section 44(1) of the Act deals with discrimination in the provision of goods or services in the following terms:

44(1) A person must not discriminate against another person -

(a) by refusing to provide goods or services to the other person; or

(b) in the terms on which goods or services are provided to the other person; or

(c) by subjecting the other person to any other detriment in connection with the provision of goods or services to him or her.

1. Granted that the Victorian Parliament is presumed to have legislated territorially and to be seeking to control only discriminatory behaviour occurring in Victoria, it seems to me that, so long as some of the behaviour complained of occurs in Victoria and can be characterised in terms of the 2010 Act as being discriminatory, either of the direct or indirect description, it may properly be the subject of proceedings in this Tribunal under the 2010 Act.
2. At least for the purposes of this summary dismissal application it seems to me that the actions of an Air New Zealand Limited representative, Ms Hansen, in informing the Baxters that Air New Zealand refused to carry Ms Baxter's assistance dog as requested, could constitute prohibited discrimination.
3. The question is, upon these factual and legal assumptions, where did this discrimination take place? The issue of where as between territorial jurisdictions an event occurring in the course of a telephone conversation is regarded as having occurred, most frequently arises in the context of contract law where it is necessary to determine where a contract has been made. The learned editors of Civil Procedure Victoria annotating Rule 7.01 paragraph 1(f)(i) of the Rules of Court dealing with service of proceedings outside Victoria relating to contracts made in Victoria state:

The general rule is that a contract is made when acceptance of an offer is communicated to the offeror (Tallerman and Co Pty Ltd v Nathan's Merchandise (Vic) Pty Ltd [1957] HCA 10; (1957) 98 CLR 93 at 111), and that where the offeror receives the acceptance of the offer is the place where the contract is made: Brinkibon Limited v Stahag Stahlwarenhandelsgesellschaft mbH [1983] 2AC 34; [1982] 1 All ER 293.) The Rule is the same where the parties, though separated can communicate instantaneously, as for instance, by radio, telex, telephone or fax ... Entores Limited v Miles Far East Corp. [1955] EWCA Civ 3; [1955] 2 QB 327 ...[1 7.01 120] page 2542 (Service 249)

1. For these purposes telexes, facsimile machines and telephones appear to be treated the same way because the communication between them is instantaneous. Where acceptance is made by post, it is the place where posting takes place but in the case of instantaneous communication it is where the communication is received. So in Mendelson-Zeller Co Inc v T & C Providores Pty Ltd [1981] 1 NSWLR 366 Rogers J considered that a contract formed by an exchange of telex messages was made in the place where the offeror received acceptance of the offer. The statement of refusal in this case is the key potentially discriminatory action. In accordance with the Entores' principle just referred to, since it was made by an instantaneous mode of communication, it occurred at the time and in the place where the communication was received, that is, in Victoria.
2. It follows therefore, that in my view it is at least arguable that the discriminatory or potentially discriminatory conduct complained of here by the Baxters occurred in Victoria. The territorial argument relied on by Air New Zealand Limited, therefore, fails.
3. As to the American regulations referred to, I did not understand it to be contended that they had any direct application to the international sector of the Baxters' proposed flight from Melbourne to Auckland. The argument was that these regulations made a convenient and sensible treatment of the conflict of laws issue. That a conflict of laws issue has been sensibly and rationally dealt with, in one instance by legislation applying in that instance, says nothing as to whether a similar neat solution is to be found for another instance to which this legislation does not apply. All persons and entities who operate businesses across borders are afflicted by conflict of laws issues. There may be good reason therefore, for such entities to be given certain immunities or clear guidance as to cross border issues. Here, I was not referred to any legislation which applies in Victoria, for instance Commonwealth legislation which would override the Victorian Act or immunise Air New Zealand Limited from its operation.
4. For these reasons the application for summary dismissal fails.