Casley v ABC (Human Rights) [2018] VCAT 1645

The proceeding is dismissed, under sections 75 and 76 of the Victorian Civil and Administrative Tribunal Act 1998.

1. John Casley claims the Respondents discriminated against him in breach of the Equal Opportunity Act 2010 (the EO Act), on the grounds of his political belief or activity and religious belief or activity. He says the discrimination occurred in the delivery of a service to him as a talkback caller on ABC radio.
2. Mr Casley, the Applicant, was for many years a frequent caller to ABC talkback radio. He was referred to by the radio presenters as 'John of Brighton'. He says he has not called the morning show on ABC radio operated by the First Respondent, since 2010, when he says that he was banned. He says this occurred after a call to the presenter Jon Faine, the Second Respondent. Mr Casley also claims that in the years 1997 to 2010 Mr Faine discriminated against him in the way he spoke to him.
3. Mr Casley's claim was made to the Victorian Civil and Administrative Tribunal (VCAT) in December 2017. The Respondents applied for the claim to be dismissed. The Respondents said that the claim should be dismissed for want of prosecution under section 76 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act) (and Clause 18 of Schedule 1 to that Act)[1] because it was made so long after the last of the events about which Mr Casley complains. Alternatively, they said the claim should be dismissed as an abuse of process under section 75 of that Act because the events complained of occurred so long ago and because they have been considered in other actions brought by Mr Casley. Thirdly, they said that the claim should be dismissed because it is not covered by the EO Act.
4. I heard the Respondents' application on 31 July 2018 and reserved my decision.[2]

1. The EO Act prohibits discrimination based on attributes listed in the EO Act, such as race, physical appearance, sex, marital status, gender identity, political belief or activity, religious belief or activity and other listed attributes.
2. Discrimination based on these attributes is only prohibited in the areas of life set out in the EO Act. Those areas include the provision of goods and services, employment, education and accommodation.
3. In other areas, the EO Act does not apply. So, for example, a person voting in an election can choose who to vote for based on the candidate's political views, sex, marital status or even physical features. The voter might or might not be exercising good judgement, but they would not be breaching the EO Act. Similarly, a person deciding whether to purchase a book can do so based on the author's political or religious beliefs without breaking any law.
4. Mr Casley claims that the Respondents discriminated against him in the provision of a service.[3] Section 44 of the EO Act provides:

(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.

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

1. Mr Casley referred in his Particulars of Claim to talkback as a service to callers.[4] He did not rely on any of the other areas of life in the EO Act and I could not see any other area upon which he might have relied. Accordingly, if the Respondents were not providing services to Mr Casley, then any discrimination, if it did occur, was not a breach of the EO Act.
2. Mr Casley claims that the Respondents treated him unfavourably because of his political belief or activity when they refused to provide him with the service of speaking on the talkback segment of Mr Faine's radio program. This occurred when the ABC informed Mr Casley that he was banned from talkback calls to Mr Faine's program. Mr Casley also claims that Mr Faine discriminated against him in the way he treated him during talkback calls beginning in 1997.
3. In a document filed after the hearing, Mr Casley said that the Respondents in delivering a service treated him unfavourably by "informing the public that I am racist against Jews and other ...slurs". The Respondents submitted that the Applicant should not be allowed to re-characterise his claim at this point. However, this characterisation still concerns the same events and I can see from the Particulars of Claim that this allegation has always been at the base of the Applicant's claim.[5] He continues to seek an opportunity to deny that he is racist. He says he is anti-Zionist but not anti-Semitic.[6]
4. The Respondents say they do not provide services to talkback callers.
5. "Services" is defined in section 4 of the EO Act as follows:

"services" includes, without limiting the generality of the word -

(a) access to and use of any place that members of the public are permitted to enter;

(b) banking services, the provision of loans or finance, financial accommodation, credit guarantees and insurance;

(c) provision of entertainment, recreation or refreshment;

(d) services connected with transportation or travel;

(e) services of any profession, trade or business, including those of an employment agent;

(f) services provided by a government department, public authority, State owned enterprise or municipal council -

but does not include education or training in an educational institution.

1. In IW v City of Perth, the High Court, considering the West Australian equal opportunity legislation, said:

...beneficial and remedial legislation, like the Act, is to be given a liberal construction. ...Nevertheless, the task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural. But subject to that proviso, if the term "service", read in the context of the Act and its object, is capable of applying to an activity, a court or tribunal, exercising jurisdiction under the Act, should hold that that activity is a "service" for the purpose of the Act.[7]

1. Accordingly, I should give the word "service" as wide a meaning as possible, taking into account however that I am not free to give it a construction which is unreasonable or unnatural.
2. In his submissions[8], Mr Casley said that he could not understand how the ABC, which under its charter[9] provides broadcasting services for the listening public to hear talkback on radio, could possibly do so without also providing services for members of the public to speak on talkback radio. At the hearing, he put the same argument in different ways, saying "if it's a service for listeners it must be a service for talkers too" and "you can't have listeners in talkback unless you have talkers too". He added: "It's all a service to the public - everyone gets to speak and should have an opportunity".
3. The Applicant relied on the expression "broadcasting services" in section 6 of the Australian Broadcasting Corporation Act 1983 (Cth). The Respondents argued that the function of broadcasting is a service to the public receiving the broadcast. Neither submission takes the issue any further. The question remains whether broadcasting is a service to the person whose information is broadcast or only to the recipients of the broadcast.
4. In Falun Dafa Association of Victoria Inc v Melbourne City Council[10], VCAT considered a similar question. There, the Applicant had been excluded from participation in Melbourne's Moomba Parade, based on political belief or activity. The Tribunal determined that while the parade was a service to the onlookers, it was at the same time a service to the participants, each of whom entered a float depicting their activities.
5. The Tribunal said:

The service provided by the MCC in presenting the Parade was, if you like, a stage upon which participants could "strut their stuff" or a gallery where they could exhibit their wares, in each instance to a large audience. Whether it be described as advertising, promotion or educating the public, the MCC was providing a service relating to this - the service of providing a vehicle (the Parade) by means of which participants can get their message to the public. That is so whether the message relates to particular cultures, indigenous people, or other icons, and whether or not all participants present that message in the same way or at all.

Another comparison might be with an entity running a trade show or exhibition. It provides the exhibitors with a vehicle (the space and the facilities) by means of which they can present their goods and their message to interested parties and to the public at large.[11]

1. So, does the ABC provide a service to talkback callers? The relationship between the talkback caller and the radio station is not like the one between the parade organisers and the participants. A radio station or presenter presenting a program is not providing a parade or gallery or show or vehicle for callers to get their message to the public or engage with the public. That may occur incidentally, but it is not the point of the talkback show.
2. The Respondents submitted talkback is not a service, because the calls are by their nature limited and subject to editorial control or curatorship. They provided no evidence in support of this. However, I noted that this was intrinsic in the letter sent by the ABC to the Applicant in 2010.[12] It said for example that "talkback calls are put to air at the program producer's discretion and are judged to be suitable on a number of factors including, but not limited to, relevance to the topic being discussed, whether the point to be made by the caller has already been sufficiently covered, the merit of talkback caller's point to the discussion, and whether the point will be of interest to the audience and can be made clearly and succinctly." I accept this must logically be how calls are managed by program producers.
3. The Applicant submitted that talkback must be a service because it is advertised to callers when the ABC solicits talkback calls.[13] I do not accept that submission. The mere fact that calls are solicited does not make the taking of calls a service. As the Respondents said in their final submission[14], it is the radio program or presenter who receives the benefit of having participants entertain and inform its audience.
4. As the Respondents submitted, it is in the nature of a radio show that there be political discussion, but a show can't be provided if callers have an untrammelled opportunity to speak. It is in the nature of a radio show that the presenter decide what information or discussion will occur on the show.
5. It is inconsistent with the presentation of a show that the opportunity to participate as a talkback caller should be seen as a service to callers or potential callers. The presenter and producers simply choose from the material on offer, to make the show they wish to make.
6. This function is different to the decisions made by the organisers of the Moomba Parade because callers have a limited and tightly controlled function. They are not celebrated like the participants in a parade. They do not advertise or seek to engage directly with the public in the way the parade participants do. Rather, the callers' conversations with the presenter are simply part of the show he or she presents.
7. A talkback caller may wish to publicise their views, but they are not receiving a publication service. The publicity is an incidental by-product of the conversation they have with the presenter. As their honours Dawson and Gaudron JJ said in IW v City of Perth: "not every process or activity which results in a benefit or advantage to an individual is a service that is provided to that individual".[15]
8. The Respondents also referred to section 79A of the Australian Broadcasting Corporation Act 1983. Sub-section 79A (1) relevantly provides:

Subject to this Act, the Corporation may determine to what extent and in what manner political matter or controversial matter will be broadcast by the corporation.

1. The rest of that section goes on to make special provision for broadcasting political matter "at the request of another person".
2. The Respondents submitted, and I agree, that section 79A amounts to a statutory entitlement to the ABC to determine political content of a broadcast. The Respondents argued such an entitlement is directly at odds with the idea that the ABC offers a service to those who wish to make political or other comments on talkback programs and must give all of them an opportunity to be heard. I agree.
3. An obligation to give everyone an opportunity to be heard would produce a very different kind of broadcast, removing the presenter's function of conducting a conversation about current issues which the listeners want to hear. Programs would become a recitation of the various opinions, some interesting, some not, some nonsensical or banal, of everyone who wants to call the radio station. Unedited, they would not be entertaining or informative. This practical need to edit calls to suit the program indicates that the taking of calls is not a service.
4. The Respondents do not provide a service to talkback callers. Accordingly, the EO Act does not apply to the Respondents' actions in choosing talkback callers or in how it treats them, and the claim is not covered by the prohibition of discrimination in the EO Act. Section 75 of the VCAT Act empowers VCAT to dismiss or strike out proceedings which are misconceived. Because the EO Act does not apply to the circumstances in this proceeding, it is misconceived and must be dismissed.

WHETHER THE CLAIM SHOULD BE DISMISSED FOR WANT OF PROSECUTION OR AS AN ABUSE OF PROCESS

1. In case I am wrong in my understanding of the meaning of "services", I will also consider the Respondents' other submissions, that the claim should be dismissed under section 76 for want of prosecution or under section 75 for the inordinate delay in bringing the proceeding and because it has been dealt with in other proceedings.
2. Section 76 of the VCAT Act relevantly provides:
   • (1) At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding for want of prosecution.
3. Clause 18 and Clause 66K of Schedule One to the VCAT Act provide:
   1. The Tribunal may make an order under section 76 summarily dismissing an application under the Equal Opportunity Act 2010 in respect of an alleged contravention of Part 4, 6 or 7 of that Act if the alleged contravention occurred more than 12 months before the application was made.

66K The Tribunal may make an order under section 76 summarily dismissing an application under the Racial and Religious Tolerance Act 2001 in respect of an alleged contravention of Part 2 of that Act if the alleged contravention occurred more than 12 months before the application was made.

1. Clause 18 does not set a de facto limit of 12 months for every claim under the EO Act. Rather, it gives the Tribunal discretion to prevent injustice due to delay.[16]
2. In Stewart v City of Yarra,[17] VCAT considered its powers under section 76 and Clause 18 and concluded that the discretion could be exercised without making any findings about want of prosecution.
3. Clause 18 indicates at least that delay in bringing an action is an important factor in considering whether it is in the interests of justice to allow claims older than a year to proceed under the EO Act. The delay of at least seven years makes this an appropriate case for exercise of the discretion, but since it is a discretion, I should consider relevant factors in exercising it. Because the application is also made under section 75, it is sufficient to refer to the relevant factors in consideration of that application.
4. 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

1. In Burrows v Victoria,[18] DP McKenzie said:

In determining whether delay in bringing a claim makes it an abuse of process, the primary consideration is the interests of justice. Relevant factors to be considered include whether the delay is inordinate or unreasonable and inexcusable, any explanation for the delay and the adequacy of that explanation, the nature of the proceeding, whether the respondent was responsible for the delay, any prejudice caused to the respondent if the proceeding continued and the effect of the delay on the quality of justice, that is, the ability to conduct a fair hearing of the proceeding (for example, whether significant documents have now been lost or destroyed, whether the witnesses' memories are so impaired that the quality of evidence will be compromised, whether witnesses have died and their importance is such that the quality of evidence is compromised); and the public interest. These factors must be balanced against each other and none is determinative.[19]

1. Mr Casley' claim concerns events between 1997 and 2 July 2010, the date when Mr Casley was told he was "banned" from talkback calls to Mr Faine's program. Between 1997 and 2010, Mr Casley did not raise the allegation that the Respondents in their treatment of him had discriminated in breach of the EO Act (or its predecessor the Equal Opportunity Act 1995). Similarly, from 2010 to November 2017, Mr Casley did not raise the question of discrimination in relation to being banned.
2. Turning to Mr Casley's reasons for the long delay in making this application, he mentioned that for much of the time he had been pursuing other avenues: making a direct complaint to the ABC itself, then to the Australian Communications and Media Authority[20], then bringing a claim of defamation in Victoria's Supreme Court.[21] That claim was unsuccessful because it was out of time. Mr Casley appealed to the High Court and that determination was upheld finally on 19 November 2014, as far as I can tell from the Applicant's material.
3. Then, Mr Casley said, until November 2017 he was unaware that he could make a claim under the EO Act. He attributed responsibility for this to his lawyers at the time.[22] Further, he said, he was exhausted by the process of conducting litigation.
4. While all this explains from Mr Casley's viewpoint why he did not bring the present action until late 2017, it does not excuse the long delay, given the other issues raised by that delay.
5. It was the Applicant's choice to pursue other avenues. If that was due to advice he received, the choices were still made on his side of the dispute. Even if he should have had different advice, responsibility for the delay still lies with him as opposed to the Respondents. He should not be punished for ignorance, but ignorance cannot be a complete answer when the other proceedings were so thoroughly pursued, putting the Respondents to considerable trouble as they must have done, and when he had legal advice.
6. Mr Casley submitted that the Respondents were responsible for the delay. I was unable to follow his reasoning at this point, but doing the best I can, it seems he argued that the Respondents were responsible because they never gave a proper explanation for accusing him of making racist statements. This does not advance his position - it is another way of saying that the Respondents were responsible because they were a party to the dispute. I do not accept that the Respondents did anything to cause the delay.[23]
7. Mr Casley submitted that since he has recordings of his radio talkback calls, which are not compromised by the passage of time, the quality of evidence is unaffected by the delay.
8. It is 21 years since the beginning of the period when he says the Respondents began discriminating against him and now it is eight years since the last talkback call he made to the Respondents. Had this claim been brought soon after the events which lead to it, the position would have been different.
9. The Respondents submitted they are unable now to gather evidence to defend the claim. Now, they said, they are unable to test Mr Casley's recordings against any of their own, because they have not kept any (except two recordings which they happen to have).
10. The Respondents submitted, and I accept, that they are not now able to call evidence about surrounding events or other broadcasts not recorded by Mr Casley. Recordings are no longer available to them and time must they say have affected the memories of any witnesses who are still available. The memory of the producers and presenter involved must, they submitted, be affected by the passage of time. I agree.
11. Mr Casley claims that a key issue is the allegation that he engaged in racist speech. He says he has never done so and refers to his long history of talkback calls. Although Mr Casley has some recordings, the full history is not available in the way it would have been at the time. Neither party is now able to give conclusive evidence about that disputed matter.
12. I accept that the Applicant's conduct in waiting until 2017 to make this claim was not wanton or cavalier (as he put it). However, his explanations for the delay are not adequate. The delay is inordinate. It is too great in proportion to all the other issues, including the prejudice to the Respondents and the seriousness of the claim, to now allow the claim to proceed. It would not be in the interests of justice to do so.
13. While the Applicant sees "justice" as the obtaining of a hearing about the substantive issues, it is my task to consider whether a hearing can be fair at this distance of time from the events. I consider it almost impossible that a fair hearing could be held in these circumstances. The quality of justice must be affected when people's evidence (including evidence about what was said) is required and the last events relevant to the claim occurred more than seven years before the application was made, particularly as some of them occurred up to 21 years ago.
14. All of this indicates that the making of a claim after such a long delay amounts to an abuse of process and it should be dismissed for that reason. It is also relevant that the Applicant has already pursued the Respondents at the Australian Communications and Media Authority and via his unsuccessful defamation action.
15. As Deputy President McKenzie said in Burrows:

While one of the objectives of the[former] Equal Opportunity Act is to provide redress for the victims of discrimination and those making complaints should not be unfairly shut out from pursuing a claim, this must be balanced against matters such as the need for finality and the unfairness to a respondent which is caused by lengthy uncertainty as to whether or not a claim will be brought.[24]

1. In the defamation proceeding, the Applicant said that the Second Respondent's statement on air that he was banned because he made racist remarks was defamatory. In the present case, he says he was excluded from talkback because of his political or religious views expressed when (in the Applicant's own words) he "used the occasion to criticize Zionist racism and praise anti-Zionist Jews" and this "triggered" the ban.[25]
2. Victoria's Court of Appeal determined there was no reason to extend the time for the defamation claim beyond the one-year limit set in the Limitation of Actions Act 1958. That was upheld by the High Court. It is in my view logically almost impossible for this Tribunal to overlook a much longer delay in bringing another claim about the same events characterised in a different way. While, as the Applicant put it, VCAT is not subject to all the strict rules which apply in the courts, the logic of those rules must affect the Tribunal's decisions.
3. For these reasons, the claim is also an abuse of process because it has been dealt with in earlier proceedings.
4. Mr Casley said in his Particulars of Claim[26] that the litigation to date has been expensive and time consuming. That is also true for the Respondents. Once the High Court finally determined that the matter was out of time, the Respondents were entitled to expect that the Applicant would not bring a further claim about the same events three years later.

1. For the sake of completeness, I note that the original application mentioned that the claim was also about racial vilification. None of the Applicant's Particulars of Claim mentioned the Racial and Religious Tolerance Act 2001 and none of his submissions addressed it. I assume that this part of the claim was abandoned. In any case, since it concerns the same events, it must also be dismissed for the same reasons.
2. The Applicant also did not particularise his claim of discrimination on the ground of religious belief or activity. I have treated that as one with his claim of discrimination on the ground of political belief or activity, because in his Particulars of Claim he says it is his religious belief in overcoming evil with good that requires him to undertake political activities. That aspect of the claim is also dismissed for the reasons I have given.

[1] The Respondents also relied on Clause 66K of Schedule 1 to the VCAT Act in relation to the racial vilification component of the claim

[2] The following written documents were before me: Applicant's application 19 December 2017; Particulars of Claim 13 May 2018; Respondents' application for dismissal 15 June 2018; Applicant's written submissions 25 June 2018; Applicant's further submissions 22 July 2018; Respondents' supplementary and reply submissions 25 July 2018; witness statement of James Patrick Hoy 25 July 2018; Applicant's additional submissions 27 July 2018; Applicant's post-hearing submissions 20 August 2018; Applicant's further submissions 23 August 2018; Respondents' final submissions 14 September 2018.

[3] See Particulars of Claim at paragraph 27.

[4] See Particulars of Claim at paragraphs 4, 19 and 27.

[5] See Particulars of Claim at paragraphs 5, 17 and 18.

[6] See paragraph 13 in the Particulars of Claim and attachment S1.

[7] IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1, 11-12 ALR at 702 (per Brennan CJ and McHugh J).

[8] Applicant's written submissions 27 July 2018.

[9] See section 6 of the Australian Broadcasting Corporation Act 1983, section 6(1)(a).

[10] Falun Dafa Association of Victoria Inc v Melbourne City Council [2003] VCAT 1955.

[12] Respondent's witness statement of James Hoy, attachment, letter dated 1 October 2010.

[13] See Applicant's document dated 20 August 2018 points 12a and 21.

[14] Respondents' submission dated 14 September 2018.

[15] IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1, 11-12 ALR at 702 at paragraph 18.

[16] Kramersh v IPD Education Ltd [2014] VCAT 1439 at paragraph 50.

[17] Stewart v City of Yarra [2016] VCAT 1537 at paragraph 47.

[18] Burrows v Victoria [2002] VCAT 1655.

[20] Applicant's document see 'File R' attached to the application.

[21] Applicant's document dated 25 June 2018.

[22] Applicant's document dated 25 June 2018.

[24] Burrows v Victoria [2002] VCAT 1655 at paragraph 44.

[25] Particulars of Claim paragraph 18e and f.

[26] Particulars of Claim paragraph 11.