1. Since 2001 Mr Campagnolo has been a sports trainer with the Bonnie Doon Football Club Inc.
2. In April 2008 he made a series of complaints to the Victorian Equal Opportunity and Human Rights Commission ("the Commission") arising out of events emanating from his role as trainer. His complaint against the Benalla & District Football League ("the League") and another against the Bonnie Doon Football Club ("the Club") remain on foot and the matters have been consolidated.
3. In relation to the League his complaint is of discrimination on the basis of sexual orientation in the area of goods and services as well as victimisation.
4. In relation to the Club, his complaint is the same - that is, sexual orientation discrimination in the area as goods and services and victimisation.
5. The Commission declined to entertain his complaint against the League and the matter was referred to the Tribunal.
6. In relation to the complaint against the Club, the Commission decided it could not reasonably conclude that the matter could be conciliated and again the complaint was referred to this Tribunal. The matters were consolidated by order to the Tribunal on 25 July 2008.
7. The League seeks to have the application against it struck out. Its application is brought pursuant to s.75 of the Victorian Civil and Administrative Tribunal Act 1998. Section 75 provides:

(1) At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion -

(a) is frivolous, vexatious, misconceived or lacking in substance; or

(2) If the Tribunal makes an order under subsection (1), it may order the applicant to pay any other party an amount to compensate that party for any costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding.

(3) The Tribunal's power to make an order under subsection (1) or (2) is exercisable by -

(a) the Tribunal as constituted for the proceeding; or

(4) An order under subsection (1) or (2) may be made on the application of a party or on the Tribunal's own initiative.

(5) For the purposes of this Act, the question whether or not an application is frivolous, vexatious, misconceived or lacking in substance or is otherwise an abuse of process is a question of law.

1. The League contends that the complainant's application is misconceived and lacking in substance. In dealing with strike-out applications the Tribunal is particularly guided by the decisions of Rabel v SEC [1998] 1 VR 102 and re Norman and Red Cross Society (1998) 14 VAR 243. It is not necessary to repeat the principles established by those cases as they are often canvassed and cited.
2. On 20 October 2008 Deputy President Coghlan made orders about the conduct of the applications. Those orders included an order that Mr Campagnolo file and serve particulars of his complaint against the League. Mr Campagnolo has filed a folder of documents with the Tribunal. Nothing in those documents particularly addresses the issues beyond what was contained in the original complaint to the Commission.
3. Mr Campagnolo is unrepresented and the Tribunal has taken account of his unrepresented status and attempted to assist him in the formulation of his case.
4. The respondent League for its part has attempted to anticipate how it sees Mr Campagnolo's case might be put and has addressed those matters in its submissions to the Tribunal.
5. In broad terms, Mr Campagnolo's main complaint is that the League did nothing to assist him when the press seized upon his story and subjected him to a short sharp barrage of unwelcome publicity.
6. Some time in 2007 Mr Campagnolo brought an action against the Department of Sustainability and Environment alleging that it had discriminated against him because of his sexuality. The case received some publicity.
7. As a result of the publicity, Mr Campagnolo's role as a trainer with the Bonnie Doon Football Club eventually became the subject of scrutiny. It is not in dispute that the Club told him he could not continue as a trainer although it maintained it welcomed him generally. The press took the opportunity to canvass opinions from various people (including former politicians) as to whether Mr Campagolo's sexuality meant he should not continue in his training role and, not surprisingly, this publicity was both unwelcome, embarrassing and hurtful to him..
8. As best the Tribunal understands the case, for Mr Campagnolo's complaint against the League to succeed, he must show a breach of section 42, section 60, section 96, section 98 or section 102 of the Equal Opportunity Act 1995 ("the Act").
9. Section 42 of the Act provides:

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

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

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

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

(2) Sub-section (1) applies whether or not the goods or services are provided for payment.

1. Sub-section 1(c) is the only provision of present relevance.
2. Mr Campagnolo maintains that the relationship between the League and himself is one whereby he is the recipient of services from the League. His support for this is that the League provides him with a free entry pass to club games and finals where he acts as trainer and pays for his travel to games. But this does not really assist him. If the provision of passes and the payment of transport to the games constitute the services provided, then there is no evidence that there has been any discrimination in relation to either or those services.
3. Mr Campagnolo alleges discrimination pursuant to section 60 of the Act. That section deals with discrimination against club members and provides:

A club, or a member of the committee of management or other governing body of a club, must not discriminate against a member of the club -

(a) by refusing, or failing to accept, the member's application for a different category or type of membership;

(b) by denying or limiting access to any benefit provided by the club;

(e) by subjecting the member to any other detriment.

1. For Mr Campagnolo to succeed in a claim of discrimination under section 60, he must first demonstrate that the League is a "club" as that term is defined in the legislation and when that limb is satisfied he must then show that he was a member of the "club".
2. "Club" is defined in s.4 of the Act and for the purposes of this exercise, the Tribunal concludes that the League would fit within the definition.
3. Mr Campagnolo maintains he is a member of the League but his claims does not withstand close scrutiny.
4. The Tribunal has before it what purposes to be the Rules and Regulations of the Benalla and District Football League Inc. This document does not deal with matters such as membership, but sets out how the League and its constituent clubs will conduct the annual football draw. It deals with matters such as clearances, registration of players, club colours etc - what I might describe as the "housekeeping rules of the League". Those Rules do not deal with membership.
5. The Tribunal assumes (there being no evidence to the contrary) that the League is bound by the Model Rules found in Schedule 5 of the Associations Incorporation Regulations 1998. A brief search of the register does not reveal that there has been any departure by the League from the model rules.
6. The model rules provide that an application for membership must be in writing, be lodged with the secretary, must receive committee approval and an annual subscription must be paid. Mr Campagnolo did not seek to advance any evidence about this although I provided him with a copy of the legislation and the regulations.
7. Whether or not the model rules apply, there is absolutely no evidence before the Tribunal which would possibly give rise to a finding that he was a member of the League. The members are clearly the constituent football clubs.
8. Mr Campagnolo claims he was victimised. Section 97 of the Act provides that a person must not victimise another person. Section 97 goes on to describe what constitutes victimisation.
9. Mr Campagnolo's contention is that he was the subject of victimisation by Darren Wellwood, the senior coach for the Bonnie Doon Football Club. He asserts that Wellwood threatened him in an exchange of words on 22 April 2008. His assertion reads as follows: "Darren was aware that [the] Herald Sun article would contain information that Bonnie Doon had acted in a way that would constitute a contravention of the Act as well as statements by me complaining of his behavioiur. As such I believe that Darren came to my house to victimise me because of my complaint".
10. Of course, this has no connection with the League and furthermore, as far as the Tribunal is aware, in April 2007 Mr Campagnolo had not made any complaint about these events (as the term "complaint" is defined in the legislation) to the Commission and indeed did not do so for approximately another 12 months. Victimisation means subjecting someone to a detriment because that person has alleged a contravention of the Act. Even if Mr Campagnolo intended at the time to allege a contravention by Mr Wellwood and Mr Wellwood thought that was the case ( but that does to appear to be so), Mr Wellwood's role (whatever it may be) is with the Club. According to the evidence given to the Tribunal he has no role with the League.
11. Again, as best I understand Mr Campagnolo, he contends that the League is vicariously liable for the discrimination and victimisation of its employees and agents.
12. Section 102 of the Act provides:

If a person in the course of employment or while acting as an agent -

(b) engages in any conduct that would, if engaged in by the person's employer or principal, contravene a provision of Part 3, 5 or 6 -

both the person and the employer or principal must be taken to have contravened the provision, and a complaint about the contrvention may be lodged againsg either or both of them.

1. This section can only have effect if it can be shown that Mr Campagnolo was an employee of the League or was acting as its agent. He is certainly is not an employee of the League and the uncontested evidence of Mr Ronke, the League's general manager, is that neither Mr Campagnolo nor the Club was an agent of the League at any time. Even were he to establish agency ( and that seems impossible) he would need to show that the League's failure to come to his aid and support constituted a breach for which the League would be liable. There is no evidence before the Tribunal that Mr Campagnolo was an agent of the League and no indication that any such evidence will be forthcoming. The Tribunal does not regard the provision of entry passes and transport to grounds as indicative of any agency agreement.
2. Were Mr Campagnolo to rely on a breach of section 98 of the Act, that would also fail.
3. Section 98 provides that "a person must not request, instruct, induce, encourage, authorise or assist another person to contravene a provision of Part 3, 5 or 6". Deputy President Macnamara of the Tibunal had occasion to consider the section in Walgama v Toyota [2007] VCAT 1318. In that case Mr Walgama alleged discrimination on the grounds of race, industrial activity and sexual harassment and alleged that employees of Toyota had authorisd, encouraged or assisted in the perpetration of wrongful acts. At para 93 the Deputy President stated:

"Section 98 of the statute prohibits the person from requesting instructing inducing encouraging authorising or assisting another person to contravene the provisions of Part 3, 5 or 6 of the statute. Part 3 deals with discrimination, Part 5 deals with sexual harassment and Part 6 deals with victimisation. The persons alleged to have authorised encouraged or assisted the alleged wrongful act are Messrs Nikolavski, Adelwohrer, Atsiaris and Ms McCarthy. The first three are supervisors with line responsibility for Mr Walgama and Ms McCarthy is a member of the Human Resources Group. In all cases the complaint seems to be of inaction rather than that any of these individuals took affirmative steps. Section 98 of the Victorian Act, which I paraphrased above, stands in contrast to a number of other State and Federal pices of anti-discrimination legilsation which prohibit not only the encouragement of unlawful discrimatory activity but also prohibit persons from "permitting" that conduct. The absence of such a reference in the Victorian statute means that mere inaction, such as alleged here, cannot constitute a breach of Section 98. This part of the complaint fails".

1. As Deputy President Macnamara concluded in that matter, the complaint was one of inaction and for that reason, it failed. Mr Campagnolo's case is that the League sat by and failed to offer him support or assistance in what he saw as the discriminatory behaviour of the Club. Were he to make a claim under section 98 against the League, it would certainly fail.
2. Mr Campagnolo has not demonstrated that he has any further evidence to put before the Tribunal - that is, any further evidence to assist with his assertions of agency, employment, membership etc.
3. It is always a difficult task for the Tribunal, when asked to strike out an application brought by an unrepresented litigant, to take the irretrievable step of denying that litigant his day in court. However in this instance, the complainant's action against the Club is really the only avenue that has any remote likelihood of success assuming the facts asserted by him turn out to be proved and that case is still before the Tribunal.
4. I am satisfied that the action brought by Mr Campagnolo against the Benalla and District Football League Inc lacks even a scintilla of credibility. I have attempted to formulate his action under the available sections of the Act but none of those formulations can be borne out on the evidence before the Tribunal. In my view this action is entirely misconceived and manifestly hopeless.
5. The order in matter number A169 of 2008 (the action against the League) is that the complaint brought by Mr Campagnolo is struck out.
6. In matter number A171 of 2008 (Campagnolo v Bonnie Doon Social Club Inc) the following directions are given:
   • Any further evidence to be adduced by the complainant is to be filed and served no later than 27 February 2009.
   • All witness statements to be relied on by the respondent are to filed and served no later than 6 March 2009.
   • The matter is to be listed for hearing after 6 March 2009. (1 day)