Charles v State of Victoria (Human Rights) [2016] VCAT 403

1. Under section 78(2)(a) of the Victorian Civil and Administrative Tribunal Act 1998 (Act) (VCAT Act), the proceeding is struck out.
2. Under sections 80 and 130 of the VCAT Act, the applicant may apply for leave to reinstate the proceeding provided any such application is made and served before 22 April 2016 and is accompanied by:
   1. Particulars of claim which:
      • (i) Are confined only to the matters referred to in order 2 made by Senior Member Proctor on 2 April 2015 and to the applicant's claim of victimisation under section 103 of the Equal Opportunity Act 2010 (Vic); and
      • (ii) In respect of the first respondent, do not exceed 10 pages; and
      • (iii) In respect of the second respondent, do not exceed five pages; and
   2. The applicant's witness statements, one setting out his evidence in respect of the first respondent and another setting out his evidence in respect of the second respondent.
3. Any such application for reinstatement is to be referred to me so that orders may be made in chambers to allow the respondents to file and serve a response and to give notice to the intervener.
4. Under section 78(2)(c), Mr Charles must pay the first respondent's standard costs incurred in respect of its application under section 78 of the VCAT Act. The standard costs are to be assessed in accordance with Rule 1.07 of the Victorian Civil and Administrative Tribunal Rules 2008, that is under the 'County Court costs scale' as defined in Rule 1.13 of Chapter I of the Rules of the County Court.
5. Under section 146(4)(b) of the VCAT Act, no person other than a party to the proceeding or their legal representatives may inspect the Tribunal file.

For Second Respondent: Mr N. Harrington, of counsel

1. On 29 August 2014, Mr P Charles made an application to the tribunal. The accompanying material contained a number of allegations including in respect of discrimination contrary to the Equal Opportunity Act 2010 (Vic) (EO Act).
2. The allegations were made against Corrections Victoria (Corrections). At the time the application was made, Mr Charles was incarcerated. Mr Charles complained that he had been treated unfavourably because of his disability in respect of the provision of services to him by Corrections while he was incarcerated. There was no dispute that Mr Charles suffers a disability within the EO Act as he is HIV positive and he also has other health conditions.
3. In December 2014, Corrections applied for Mr Charles' application to be dismissed or struck out under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Act) (VCAT Act) because it said it was misconceived and lacking in substance. Corrections contended that Mr Charles' application was doomed to fail as none of his complaints related to 'services' as that term is defined in the EO Act.
4. On 2 April 2015, the tribunal made orders dismissing 45 of the 60 complaints made by Mr Charles on the basis that the subject matter of the complaints fell outside the tribunal's EO Act jurisdiction. I will refer to the remaining 15 issues in the proceeding as the 'continuing issues'.
5. Also on 2 April 2015, an order was made joining the Victorian Equal Opportunity and Human Rights Commission (Commission) to the proceeding as an intervener under section 159 of the EO Act.[1] The Commission has taken a very limited role in these proceedings. It made submissions in respect of only one matter at the hearing before me.
6. On 23 April 2015, an order was made joining Correct Care Australasia Pty Ltd (Correct Care) on the basis that it may have provided some of the services in issue to Mr Charles, as a sub-contractor to Corrections.
7. After the 2 April 2015 summary dismissal decision was given, three directions hearings were held and numerous orders were made. The last set of orders were made on 19 October 2015. They required Mr Charles to, amongst other things, send to the tribunal and the other parties, amended particulars of claim together with specified supporting materials. The date for compliance with those orders was 5 November 2015.
8. On 19 November 2015, Corrections applied for an order summarily dismissing the proceeding under section 78 of the VCAT Act. In brief, the application was that Mr Charles had conducted the proceeding in a way that unnecessarily disadvantaged Corrections because he had failed to comply with the tribunal's orders without reasonable excuse and had filed material that did not state the case Corrections was required to meet.
9. On 20 November 2015, Correct Care made an application under section 78. It sought dismissal of the proceeding or, alternatively, strike out, on the basis that Mr Charles was conducting the proceeding in a way that caused it disadvantage. Correct Care said that Mr Charles had failed to comply with tribunal orders without reasonable excuse and had failed to articulate the evidentiary and legal case made against it.
10. Orders were made allowing Mr Charles to send to the tribunal and the parties a response to the applications. The section 78 applications were heard by me on 19 February 2016.
11. I have decided to strike out Mr Charles' application and make limited provision for him to apply for reinstatement subject to conditions.
12. I will first discuss the terms of section 78 of the VCAT Act and then turn to the circumstances of this case.

1. Section 78 of the VCAT Act says:
   • (1) This section applies if the Tribunal believes that a party to a proceeding is conducting the proceeding in a way that unnecessarily disadvantages another party to the proceeding by conduct such as -
     • (a) failing to comply with an order or direction of the Tribunal without reasonable excuse; or
     • (b) failing to comply with this Act, the regulations, the rules or an enabling enactment; or
     • (c) asking for an adjournment as a result of (a) or (b); or
     • (d) causing an adjournment; or
     • (e) attempting to deceive another party or the Tribunal; or
     • (f) vexatiously conducting the proceeding; or
     • (g) failing to attend mediation or the hearing of the proceeding.

(a) order that the proceeding be dismissed or struck out, if the party causing the disadvantage is the applicant; or

(b) if the party causing the disadvantage is not the applicant -

(i) determine the proceeding in favour of the applicant and make any appropriate orders; or

(ii) order that the party causing the disadvantage be struck out of the proceeding;

(3) The Tribunal's powers under this section are exercisable by the presiding member.

1. Section 32(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter), requires the Tribunal to interpret provisions such as section 78 of the VCAT Act, so far as it is possible to do so, compatibly with human rights. The Tribunal is required to undertake the usual interpretative process to identify the meaning of the provision and also to consider whether the purpose of the provision can be interpreted compatibly with human rights.[2] Section 32(1) seeks to ensure that Charter rights are kept in mind when a statute is construed but does not require the language of a section to be strained to effect consistency with the Charter.[3]
2. Like all provisions which empower the tribunal to summarily dismiss or strike out a proceeding, the discretion granted by section 78 must be exercised with care. In Bell Corp Victoria Pty Ltd v Stephenson,[4] Ashley J discussed the proper approach to the application of section 78.
3. First, the tribunal must believe that a party to a proceeding is conducting the proceeding in a way that unnecessarily disadvantages another party to the proceeding. The list of matters describing conduct which might attract the exercise of discretion in section 78(1) is non-exhaustive.
4. Next, when exercising the discretion granted under section 78(2), the following matters must be considered:
   • The subject matter of the belief formed by the Tribunal for the purposes of section 78(1);
   • The nature of the power conferred by section 78(2). Noting the powers granted by section 75, 76 and 77 of the VCAT Act, his Honour commented that section 78(2) does not require that the proceeding be frivolous, vexatious, misconceived, lacking in substance or otherwise an abuse of process (section 75) or that there has been a want of prosecution (section 76);
   • While the existence of section 78 indicates that the legislature intended that the remedy could be used in appropriate circumstances, in statutory context, it ought to be a remedy of last resort and not first resort;
   • The duty on the tribunal to act fairly and according to the substantial merits of the case contained in section 97 of the VCAT Act. That section was said to import the concept that, ordinarily, the interests of case management should not be employed so as to shut a party out of litigating its case. The tribunal's ultimate aim must be the attainment of justice in respect of issues before it;
   • The VCAT Act section 98(1)(a) requirement that the tribunal give effect to the rules of natural justice which ordinarily give a party an opportunity to be heard upon the merits. That opportunity is not absolute and may be lost without breach of the rules of natural justice. However, where the effect of an order under section 78(2) will deprive a party of an opportunity to be heard upon the merits, that matter is relevant to exercise of the discretion; and
   • In a particular case the tribunal will consider some other matter to be relevant. The relevance of other matters will depend on whether they infringe an implied limitation on the factors to which regard may legitimately be held. Any such limitation must be found in the subject matter, scope and purpose of the statute.[5]
5. Ms Fitzgerald, counsel for Corrections, referred me to another of Ashley J's decisions to describe how case management principles operate in the tribunal. In Barbon & Crema v West Homes Australia Pty Ltd,[6] a case concerned with section 75 of the VCAT Act, his Honour said that, although the tribunal is not a court of pleadings and encourages a degree of informality in proceedings, it should not be thought that 'Rafferty's Rules' should prevail. Any party facing a claim is entitled to know what case it must meet before the hearing commences. That was said to be particularly so when a long and drawn out hearing is required. The case does not have to be outlined with 'exquisite particularity' but the respondent is entitled to expect that a claim will be laid out with a degree of specificity so that, if it is clear the claim is untenable, the respondent may make an application for summary dismissal or strike out before the hearing.[7]
6. In Makrenos v Papaioannou,[8] Kaye J heard an appeal from a tribunal decision to refuse leave to amend points of claim. One of the issues for his Honour was whether there was an arguable claim. His Honour made observations about the nature of proceedings in the tribunal and particularly the requirement in section 98(1)(b) of the VCAT Act to proceed with as little formality and technicality as the requirements of the VCAT Act permit. He confirmed that 'Rafferty's Rules' do not apply. Kaye J said that, other than in a simple case, the tribunal should require a party making a claim to properly spell out the ambit of the claim so as to give appropriate notice of it to the respondent in the case.[9]
7. Mr Harrington, counsel for Correct Care, referred me to the decision of the High Court of Australia in Aon Risk Services Ltd v Australian National University,[10] on the question of the application of case management principles. In Aon, the High Court decided that the granting of an application to adjourn the proceeding in issue to allow pleadings to be amended was incorrect. Reference was made to an 'unduly permissive' approach to the management of the proceedings. His Honour the Chief Justice said at paragraph 5:

In the proper exercise of the primary judge's discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system. Given its nature, the circumstances in which it was sought, and the lack of a satisfactory explanation for seeking it, the amendment to ANU's statement of claim should not have been allowed. The discretion of the primary judge miscarried.

1. I will now turn to the conduct of this proceeding.

1. I have described above the preliminary hearing and orders made in April 2015.

1. On 23 April 2015, a directions hearing was held and orders were made for the future conduct of the proceeding. Mr Charles attended by telephone.
2. I ordered that, by 5 June 2015, Mr Charles was to send to the tribunal one copy of:

1. His amended particulars of claim concerning only the matters referred to in order 2 made by Senior Member Proctor on 2 April 2015 - that is his amended particulars of claim in respect of the continuing issues; and 2. Any witness statements he intended to rely on;

1. All documentary evidence he intended to rely on; and

1. Any summonses he wished the tribunal to issue together with an outline of the evidence he expected the proposed summonsed witnesses to give.

1. As Mr Charles had foreshadowed that he wished to also make a claim of victimisation under section 103 of the EO Act, I made provision for him to send to the tribunal any such claim together with full particulars and supporting witness statements or other evidence by the same date, 5 June 2015.
2. In these reasons I refer to the documents described above as Mr Charles' 'claim documents'.
3. The orders included a direction to the registrar to return to Mr Charles two folders of material he had submitted for Corrections' section 75 summary dismissal application. That direction was made because the tribunal had not required those materials and it was thought that, given he was incarcerated at that time, Mr Charles could make use of those same materials to comply with the above orders. I also ordered that six printed copies of the tribunal's summons to appear form and affidavit and one copy of the tribunal's 'Guidelines for a Person Requesting the Issue of a Summons to Appear'. The orders required that, on receipt of Mr Charles' claim documents, the tribunal would notify the other parties so they could attend the tribunal to take copies. That order was also made taking into account the limitations imposed on Mr Charles by his incarceration.
4. Other orders were made for particulars of defence to be filed by the respondents and for the Commission to file submissions. A further directions hearing was fixed for 7 August 2015. The purpose of that directions hearing was to allow all parties to confirm that all material had been filed and that the necessary arrangements were in place for the hearing to proceed. A four day hearing was listed to commence on 1 September 2015.

1. On 11 May 2015, Mr Charles wrote to the tribunal. His correspondence was treated as an application for an extension of time to comply with the 23 April 2015 orders. The other parties consented to an extension of time provided that their dates for compliance with orders was also extended.
2. I made orders in chambers extending the time for the filing of Mr Charles' claim document to 30 June 2015. The other orders were extended. A further directions hearing was scheduled for 13 July 2015.

1. On 23 June 2015, Correct Care sought an adjournment on the basis that a number of staff representing the parties would be on leave on 13 July 2015. They included Correct Care's instructing solicitor and barrister and Corrections' instructing solicitor. The correspondence indicated that the Commission had no objection to an adjournment. Mr Charles was invited to comment. He notified the tribunal that he objected to an adjournment of the directions hearing.
2. On 6 July 2015, I made orders in chambers as follows:

The Tribunal, having received the second respondent's application for an adjournment (to which the first respondent and the intervener consent) and having noted the applicant's objection to the adjournment request and his failure to file materials by 30 June 2015, the adjournment sought will be granted to ensure all parties may be heard as to the next steps in the proceeding.

1. A directions hearing was listed for 27 July 2015.

1. A directions hearing was held on 27 July 2015 and orders were made. Mr Charles again attended by telephone.
2. First, the September 2015 hearing dates were vacated. Second, using identical terminology as that used in the 23 April 2015 orders, Mr Charles was ordered to file and serve his claim documents by 31 August 2015. Third, the proceeding was listed for a further directions hearing on 22 September 2015. The further extension of time was granted without objection from the respondents. No further orders for procedural steps were made at that time on the basis they would be considered after Mr Charles had filed the claim documents.

1. Mr Charles was released from prison on 18 August 2015.
2. Further orders were made in chambers on Mr Charles' application for more time to file his claim documents. The time for compliance was extended to 30 September 2015. The proceeding was listed for a further directions hearing on 19 October 2015.
3. These orders were made with the consent of the respondents and the Commission.

Documents filed by Mr Charles on 30 September 2015

1. On 30 September 2015, Mr Charles filed a letter and eight attachments. The covering email said in part:

The documents I have presented are by the due date and may not be what the Tribunal and the Respondents are expecting. I would ask you to review all attached documents with dignity and respect.

I would seek the direction of the Tribunal and the listed respondents and intervener after reviewing all of the information attached.

I will wait for a formal reply from the Tribunal Member and after consultation with the Respondents and the intervener to the listed dispute.

1. The covering letter addressed to the registrar stated that the claim was one of discrimination regarding disability under the EO Act. It then referred to previous documentation and how it needed to be handwritten because it was prepared in jail with limited access to computers. Mr Charles said his health had deteriorated over the life of the claim but that he had continued with it because of the importance of the issues raised. Mr Charles asserted that at times his efforts to comply with orders had been interfered with by Corrections. He referred to 'extensive intimidation, retaliation and victimization' from Corrections. Mr Charles seemed to refer to discussions with the representatives of Correct Care. He queried whether Correct Care understood, amongst other things, the extent of his health related limitations.
2. The letter then turned to a discussion of whether Mr Charles would continue with the claim. He discussed over several pages the difficulties he was having complying with orders. He referred to complaints he had made to the Victorian Ombudsman and how that process had been difficult. Mr Charles referred to medical advice and how he was struggling to manage his health diagnoses and his reintegration into society.
3. Mr Charles stated he had been working on a particulars of claim document 'night and day for several weeks'. He referred to problems sourcing evidence from witnesses. He also said he needed to re-assess whether to continue. He then said that he was providing information as a secondary document as a proposal for settlement.
4. The other attachments to the letter were letters written by Mr Charles' treating medical practitioners. One, dated 27 August 2015, described in short terms the doctor's treatment of Mr Charles and concerns he was experiencing in respect of his capacity to work and interact with other people. It was not apparent to whom the letter was addressed or for whom it was intended. A second letter dated 10 September 2015, was addressed to Mr Charles' parole officer. It set out his medical conditions and medications. It explained that some of the side effects of medication might limit Mr Charles' capacity to attend appointments and use public transport. A third incomplete letter dated 20 August 2015 appeared to be a referral to another clinic seeking assistance in managing Mr Charles' conditions. The missing part of the letter seemed to be part of a list of Mr Charles' health conditions.
5. The tribunal invited the respondents to say whether they wished to have time to discuss Mr Charles' proposal. They both declined and sought a directions hearing. That was the hearing scheduled for 19 October 2015.

1. A directions hearing was held on 19 October 2015 and orders were made. Mr Charles attended in person.
2. The orders were as follows:
   1. By 5 November 2015, the Applicant shall file and serve materials in compliance with orders 2 and 3 made on 27 July 2015.
   2. By 5 November 2015, the Applicant shall notify the Tribunal and all parties if he wishes to withdraw the application against the Second Respondent. If so, an order to that effect will be made in chambers.
   3. If the Applicant fails to file materials with the Tribunal on or before 5 November 2015**,** the Applicant consents to an order being made in chambers dismissing the proceeding under section 78(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act).
   4. If either or both Respondents wish to make an application under section 75 and/or 78 of the VCAT Act in respect of the materials referred to in order 1, they shall file and serve such application on the Tribunal and all other parties on or before 20 November 2015.
   5. Unless an order has already been made under order 3 above, the registrar is directed to refer the file to me on 25 November 2015 to make further orders in chambers.
3. Order 3 was made in the context of Mr Charles' 30 September 2015 correspondence and his own doubts about whether he would continue with the proceeding. The order was made in the terms stated so that, should Mr Charles decide not to continue, he would not need to file materials and the matter would be finalised by an order in chambers.

Documents filed by Mr Charles on 5 November 2015

1. On 5 November 2015, the tribunal received an email sent on Mr Charles' behalf. Its heading referred to a 'VCAT Submission' which had been 'shared' via 'OneDrive'. In order to obtain the submission, it was necessary to access a link and print the material.
2. The material was in no clear order. There was no index. It included a covering letter dated 4 November 2015 addressed to the registrar. That letter did not provide a guide as to how to order or understand the documents. A number of tables were included which addressed issues identified in a table attached to SM Proctor's reasons for decision in the April 2015 strike out application. The tables contained descriptions of events. Other tables listed potential witnesses. A very significant number of copies of documents were included. I estimate the document included 200 to 300 pages.
3. The Commission prepared an index of the documents which has been of enormous assistance to me. It identified 189 documents in total.
4. There was no document which might be regarded as particulars of claim.
5. No witness statements were included, not even from Mr Charles.
6. When properly ordered, it became apparent that documents had been grouped in support of or as relevant to some of the continuing issues. While possible to assume that the documents were intended to be relied on to support claims arising from those allegations, there was no explanation as to what they were said to demonstrate or how they were relevant to a claim under the EO Act.
7. The lists of witnesses included Government Ministers and senior officers of Corrections and other entities. Medical practitioners and nurse practitioners were listed as persons who could give evidence about their roles within the Corrections and Correct Care systems. A number of prisoners were listed as being persons who 'may' provide evidence in support of Mr Charles' claims.
8. I will discuss further below the 5 November 2015 documents.

1. On 19 November 2015, Corrections made an application seeking orders under section 78 of the VCAT Act. Corrections applied for an order dismissing the proceeding under section 78(2)(a) and an order for costs under section 78(2)(c) and section 109 of the VCAT Act.
2. The application stated that Mr Charles was conducting the proceeding in a way that unnecessarily disadvantaged Corrections by:
   • Failing to comply with orders of the tribunal without reasonable excuse; and
   • Filing material that did not clearly state the case Corrections had to meet.
3. There was an annexure to the application which set out the history of the proceeding and the orders made on and after 23 April 2015. Corrections noted that Mr Charles had twice failed to comply with the tribunal's orders without reasonable excuse - first in respect of the material filed on 30 September 2015 and second on 5 November 2015.
4. Corrections then addressed the content of the 5 November 2015 documents. Corrections' solicitors had prepared a table which attempted to identify documents in connection with the continuing issues in the proceeding. For example, the table contained a heading 'Part B - Documents relevant to Discrimination based on his HIV/AIDS Status?' The table then listed documents which arguably related to that issue. A similar approach was taken in respect of others of the continuing issues. For some documents the table identified by reference to SM Proctor's reasons for decision, an issue number to which the documents seemed to relate. The index runs to 191 entries.
5. Corrections contended that the documents included new material that did not appear to relate to the continuing issues or a victimisation claim. Further, the documents did not specifically identify which of Corrections' employees or agents Mr Charles made allegations against or what breaches of the EO Act were alleged against them.
6. Corrections said that it was unfair to require it to construct for itself the case that was now put against it.
7. At the hearing, Ms Fitzgerald for Corrections submitted that Mr Charles' continued non-compliance with orders had unnecessarily disadvantaged Corrections because it had been left in the dark as to the claims it was required to meet and had been placed in the position that it had to construct the claims made against it. She contended that the continuing non-compliance had obviously caused unnecessary disadvantage because the proceedings had been delayed and increased the costs incurred by Corrections in the proceeding. She argued that Corrections' costs were greater than those which would ordinarily be incurred in defending an EO Act claim.
8. As to the material filed, she contended that it extended beyond the terms of the continuing issues and did not make clear the victimisation claim. Some of the material contravened section 177 of the EO Act which renders inadmissible evidence of things said and done in the course of dispute resolution.
9. Ms Fitzgerald referred to my 19 October 2015 self-executing order. As set out earlier, that order provided that, if the claims materials were not filed by 5 November 2015, the proceeding would be dismissed with Mr Charles' consent by a chambers order. As I understood it, while Corrections had applied for summary dismissal under section 78, it maintained I could still proceed on the basis of the self-executing order.
10. Ms Fitzgerald contended that the time had passed for Corrections to consent to orders allowing Mr Charles time to file the required materials because of the large amount of time that had already been allowed and the costs associated with the proceeding to the hearing date.

1. On 20 November 2015, Correct Care made an application seeking orders under section 78 of the VCAT Act. Correct Care applied for an order dismissing the proceeding or, alternatively an order striking out the proceeding under section 78(2)(a).
2. The application stated that Mr Charles was conducting the proceeding in a way that unnecessarily disadvantaged Correct Care by:
   • Failing to comply with orders of the tribunal without reasonable excuse;
   • Failing to articulate the evidentiary and legal case against Correct Care in a manner that permitted Correct Care to understand the case made against it and defend it.
3. An annexure to the application set out the grounds for seeking the section 78 order. After summarising the procedural history of the matter, the annexure then turned to the materials Mr Charles filed on 5 November 2015. First it noted that, contrary to an undertaking given by Mr Charles at the 19 October 2015 directions hearing, no separate document setting out the claims against Correct Care had been provided. It was able to identify in the covering letter a possible claim against Correct Care (relating to the provision of correct medication and prescriptions) and an application for relief in the form of orders or an undertaking to provide medications to prisoners as required on a daily basis. Correct Care stated that the relief sought was consistent with its existing legal obligations and so queried the utility of such an order. It commented that the document was not a witness statement and was more akin to an outline of submission/argument.
4. As to the tables and documents produced by Mr Charles, Correct Care was able to confirm that some of the continuing issues which concerned it appeared to still be prosecuted. Correct Care said that Mr Charles' providing a plethora of documents did not amount to compliance with the orders. It contended that Mr Charles had failed to comply with the 19 October 2015 orders as no particulars of claim had been filed (or those that had been filed were inadequate) and no witness statements or summonses had been filed.
5. Correct Care contended that section 78 was invoked to justify the making of an order where:
   • The complaint against Correct Care had not been clearly particularised with reference to the statutory cause of action;
   • The 23 April 2015 orders to file and serve a witness statement containing his own evidence had not been complied with. The 19 October 2015 directions confirmed that order was to be complied with by 5 November 2015; and
   • Mr Charles had caused delay and still had not provided proper particulars and a clear factual basis in support of his statutory cause of action. Correct Care noted that the claim against it had commenced more than six months earlier.

1. On 18 December 2015, Mr Charles filed a 112 paragraph document responding to Corrections' section 78 applications. In his response, relevant here, he:
   • Summarised a talk given in 2005 by former President of the tribunal, Mr S Morris QC, about civil and human rights proceedings in the tribunal. He seemed to place particular reliance on comments which focussed on the tribunal's informal processes and preference not to employ over legalistic procedures and its role within the justice system;
   • Discussed his understanding of what occurred at the 19 October 2015 directions hearing and the intention of the orders made. He stated that he understood that he was required to send all of the materials he intended to reference to the tribunal and that I would examine them to determine whether the matter could continue. He stated that I had reminded him that the orders 'applicable' to 23 April 2015 must be observed and that was reflected in the 19 October 2015 orders;
   • Discussed his understanding of the effect of SM Proctor's decision. He stated that he understood that the events which were the subject of the continuing issues were within the definition of 'services' under the EO Act. He said he understood that he could proceed in the same terms as the original or that he could present amended particulars regarding the continuing issues;
   • Referred to Corrections' failure to attend the first directions hearing scheduled in this matter and suggested that amounted to conducting the proceeding in a manner that disadvantaged him;
   • Contended that during the course of directions hearings, Corrections had been given warnings about its conduct. Reference was made to incidents which Mr Charles said also amounted to Corrections conducting the proceeding in a manner that disadvantaged him;
   • Said that the tribunal had not fully understood the obstacles and limitations placed on him while in jail and how those together with his disabilities had stopped him complying with orders;
   • Advised that since being released from custody he had been diagnosed with post-traumatic stress disorder and was suffering debilitating and severe night terrors and extremely vivid dreams. He said he was constantly in fear and that was affecting his personal relationships;
   • Stated that since being released, he has had to comply with parole requirements and attend a range of medical appointments, including with specialists;
   • Seemed to suggest that his proceeding had become unnecessarily complex and said that the tribunal must be considerate of the rules of natural justice while acting in a manner that is equitable to procedural fairness. In particular he stated that he was entitled to have his matter considered and findings of fact to be made based on sound reasoning, relevant evidence and without bias. The fact he is self represented and suffers disabilities was relied on to support a contention that he is disadvantaged by the proceeding;
   • Discussed whether the whole of his claim was suited to being determined in this jurisdiction given it touched on complex questions of interpretation and common law related matters also. Mr Charles later said he did not rely on the suggestion of a transfer to the Supreme Court of Victoria;
   • Referred to the tribunal's obligation contained in section 98 to act fairly and according to the merits of the case. He also referred to the tribunal's section 98(1)(c) power to inform itself as it sees fit and other provisions in respect of the taking of evidence; and
   • Stated that he was hindered in sourcing information from or speaking to potential witnesses and that was why he had not issued summonses and that once the claim materials had been reviewed by me, summonses could then be produced.
2. In addition, Mr Charles set out and discussed provisions of the EO Act (including section 9 which deals with indirect discrimination) and the VCAT Act. He also referred to case law relevant to some of the matters he raised.
3. In summary, I understand Mr Charles to contend that:
   • He had done his best to comply with the orders;
   • He understood I would review his material in chambers and determine or advise whether there was merit in the claim; and
   • The powers and procedures of the tribunal are sufficiently flexible as to allow it to call for or elicit evidence relevant to the claims without him producing witness statements or issuing summonses at this time.
4. Mr Charles attached a number of medical certificates to his response. They were addressed to the Adult Parole Board and referred to his incapacity to attend parole appointments on three occasions in December 2015.
5. Mr Charles' response to Correct Care's section 78 application was largely in similar terms to that provided in response to Corrections' application. It ran to 121 paragraphs. Mr Charles included in that response a discussion of the Charter, the objectives of the EO Act, section 9 of the EO Act and specific provisions of the Corrections Act 1986 (Vic).
6. At the hearing, Mr Charles again said that I had no idea what it was like for him managing his parole conditions and attending his many medical appointments - he referred to the time these occupied and the distances he was required to travel to meet them. I told Mr Charles I was most interested to hear about those matters as I needed to consider whether he had a reasonable excuse for not complying with the orders.
7. Mr Charles then referred to the difficulties he has attending appointments from time to time due to illnesses arising from side effects of his medications. He also referred to the time and distance he was required to travel. By way of example he said that, on the day before the hearing, he was required to attend a parole appointment. He was ill in the morning but attended the appointment at 11am. That appointment lasted for an hour. He then attended a medical appointment in the city. He got home at 4pm and then had to deal with his former partner's health related issues. He said during the week after the hearing he had two appointments scheduled. He indicated that this description was indicative of his usual schedule.
8. Mr Charles confirmed that he had done his best to comply with the orders and reiterated his understanding of the meaning of the 19 October 2015 orders. He said the tables and other documents he had produced were all he had time to do given his health conditions and other difficulties. He emphasised the fact that he is self represented. He said that, when he agreed to the 5 November 2015 date at the October directions hearing, he believed he would be able to comply. Mr Charles said that, if he had legal representation, he believed he could continue with the proceeding. Earlier in the hearing he had informed me that he had an appointment for a discussion about his case with a solicitor and that was to be held a week after the hearing.

1. In its written reply, Corrections disputed the suggestion that it had been warned about its conduct. It also disputed the proposition that it had obstructed or hindered Mr Charles in preparing the claim documents. It noted that Mr Charles' has not made an application under section 78 of the VCAT Act and that the material regarding the manner in which Corrections had conducted the proceeding and allegedly caused him disadvantage was not a defence to the application before me.
2. At the hearing, Ms Fitzgerald drew my attention to Mr Charles' parole conditions which require him to attend an appointment with his parole officer once a week for a period of 45 to 60 minutes.
3. In its written reply, Correct Care noted that Mr Charles' claim was only complex because it is opaque and ill-conceived. Correct Care made no challenge to Mr Charles' disabilities and related impediments. It noted, though, that there was no medical evidence on which it could be concluded that Mr Charles lacked the cognitive capacity to understand the orders made. In fact, Correct Care contended that the content of his reply submissions reflected his ability to produce a considered response. He had simply failed to comply with the orders. Noting that the tribunal had made orders to accommodate Mr Charles' particular difficulties, it was now the case that Correct Care was unnecessarily disadvantaged by the significant delay in the proceeding. Correct Care again stated that it was still unable to clearly identify the claim made against it.
4. In his oral submissions, Mr Harrington, for Correct Care, said that Mr Charles had failed to engage with the matter in issue and that he had failed to provide any or any compelling explanation for his failure to comply with the orders. Correct Care suggested that Mr Charles had displayed little insight into his non-compliance with the orders. Correct Care maintained there was a sufficient basis for me to exercise discretion to make an order under section 78.

1. I will first comment on the various orders made in this proceeding, including the self-executing order made on 19 October 2015, and then the relevant considerations under section 78.

1. As already indicated above, the respondents did not object to the various extensions of time granted to Mr Charles to comply with the orders regarding his claim documents. Mr Charles was present by telephone or in person at each directions hearing and so each order was made after discussion with him about the time he required. On each occasion I understood him to confirm the time allowed was sufficient and he believed he could comply. Clearly the 19 October 2015 orders were made after he had been out of jail for around two months and so he was in a position to assess what time would be available to him to do the work required to comply.
2. As shown on the face of the 19 October 2015 self-executing order, Mr Charles consented to the making of that order if he did not file the required materials by 5 November 2015. The orders clearly referred to those documents identified in the earlier orders - that is the claim documents. I accept that Mr Charles might have suffered some cognitive decline due to his health conditions, however, he did not say he did not understand what the self-executing order meant or required of him.
3. Mindful of the fact that an order under section 78 of the VCAT Act is one of last resort, I did not make an order in chambers where some documents which arguably complied with aspects of the orders had been filed. Given the section 78 applications made by the respondents which have been the subject of submissions and a hearing, it is more appropriate that I make an order in respect of those applications rather than in reliance on the self-executing order.

1. Mr Charles alleges that Corrections and Correct Care engaged in prohibited discrimination and victimisation. To place the question of compliance with the orders in context, I will describe briefly the nature of the claims made and the usual way in which they are documented.
2. A direct discrimination claim is a claim that a person has been treated unfavourably because of an attribute that is protected by the EO Act.[11] An indirect discrimination claim is a claim that a requirement, condition or practice has been imposed that has or is likely to disadvantage a person with an attribute and that is not reasonable.[12] A victimisation claim is a claim that a person has been subjected to or threatened with detriment because the person has exercised a right of the kind listed in section 104 of the EO Act.
3. In order for any act of discrimination to be prohibited by the EO Act, it must have occurred within one of the specified areas of life: in this case it is alleged that the acts of discrimination occurred in respect to services provided to Mr Charles by Corrections and Correct Care contrary to section 44 of the EO Act. The meaning and application of the term 'services' in the EO Act was the subject of SM Proctor's decision. That decision did not resolve the question in relation to all of the continuing issues - he decided that services were arguably provided in respect of some of those claims and that those questions ought to be dealt with at a full hearing.
4. Particulars of claim set out factual matters in so far as they explain the basis for allegations of breaches of the law. The purpose of particulars of claim is to set out the case the applicant seeks to prove and the remedies sought. The particulars allow a respondent to understand what is said against it and to prepare its response. The particulars inform which witnesses are to be called and what evidence is to be produced. The particulars are the foundation document for the proceeding.
5. In a discrimination claim the particulars ought to identify the attribute relied upon, describe in brief terms the conduct that is alleged to be discriminatory and explain on what basis it is said that the relevant conduct was engaged in because of the attribute. There is no dispute about the attribute Mr Charles relied on - disability. While Mr Charles identified various events which might enable the identification of conduct, he did not state or describe or attempt to explain why he says that the relevant conduct was engaged in because of his disability rather than for another reason.
6. A victimisation claim ought to be particularised by identifying the action taken which falls within section 104, the detriment and why it is said that the person was subjected to or threatened with the identified detriment because of the relevant action of the applicant.
7. I summarised above the materials filed by Mr Charles on 30 September 2015. There is no question that they did not comply with the 27 August 2015 orders.
8. I have also described the documents filed on 5 November 2015. The documents filed on 5 November 2015 might arguably comply with some of the orders. For example, a large number of documents were provided. Also witness lists and summaries of the evidence expected to be given were included. Mr Charles referred to various persons who would have to be summonsed but said he had not filed summonses because he had been hindered in making arrangements with witnesses and seemed to think that was a matter to be addressed later.
9. However, there is no document which could properly be described as amended particulars of claim.
10. The tables Mr Charles filed identified a very large number of events which, it might be surmised, he said represented acts of discrimination or acts of victimisation contrary to the EO Act. One might be able to identify treatment that could be described as unfavourable or detrimental. One could attempt to identify conditions, requirements or practices which disadvantaged people with disabilities.
11. What none of the tables or any other document does is explain why Mr Charles says that the unfavourable treatment was linked to his attribute or that the victimisation was linked to the exercise of rights protected by the EO Act - he does not address the key question raised by the word 'because' in sections 8 and 104. As to indirect discrimination, he does not explain how an otherwise neutral condition, requirement or practice disadvantaged people with disabilities.
12. It is often the case that self-represented parties have difficulties producing documents of the kind legal practitioners might expect in litigation. Provided that some document addresses these types of questions, respondents and the tribunal will usually proceed. In many cases in the Human Rights List, a witness statement or a document which recites the history of the matter and which contains submission like material is treated as a combination of particulars of claim and witness statement. Those documents often describe matters in such a way that a reader can identify why the applicant believes there is a connection between their attribute or actions and unfavourable treatment or detriment they have experienced. It is not the form of the document that is essential - it is the content. Provided that the content is understandable and engages with the legal issues to be addressed, a flexible approach can be taken.
13. The fact that Corrections was able to identify events and link them to the continuing issues does not demonstrate that the documents produced are adequate amended particulars of claim. In order to respond to the matters included in the documents, Corrections and Correct Care would need to make assumptions about which of the many events are said to be acts of prohibited discrimination or victimisation, which person is alleged to have breached the EO Act and the reasons Mr Charles has imputed to those people. Such a process goes well beyond what can be expected from any respondent. As contended by Correct Care, a mere complaint of unfairness or detriment is not enough to enliven jurisdiction. The concerns about 'Rafferty's Rules' and the like discussed in Barbon & Crema and Makrenos come to mind.
14. Mr Charles did not, by 5 November 2015, file:
    • Amended particulars of claim concerning only the continuing issues; or
    • Any witness statements he intended to rely on; or
    • Any summonses he wished the tribunal to issue.
15. While it might be the case that Mr Charles filed all of the documentary evidence he intended to rely on, the failure to file the above materials means that the crucial documents in the proceeding are still not held.
16. I am satisfied that Mr Charles failed to comply with order 1 made on 19 October 2015.

1. I accept that Mr Charles' health conditions are likely to limit his capacity to undertake a range of tasks on some days. I accept that medical appointments often occupy a large amount of time and that he has several such appointments each week.
2. However, Mr Charles produced no doctor's certificate as to his capacity to comply with the orders during the period 19 October and 5 November 2015. He provided no specific details of his commitments or details of any unexpected health condition or appointment which meant he could not comply with the orders. I accept that some days would have been otherwise occupied and that his health conditions would have ruled out work on the task on other days. However, my willingness to make assumptions about these matters can go no further.
3. As mentioned earlier, all orders in respect of Mr Charles' claim documents were made in consultation with him. The dates were set with his agreement including 5 November 2015.
4. Having reviewed the materials Mr Charles filed on 5 November 2015, I cannot conclude that it was beyond his intellectual or physical capacity to, doing his best as a self-represented litigant, prepare documents which complied or sought to comply with the orders. The materials contained detailed tables setting out numerous events. Mr Charles identified evidence and witnesses that might be relevant.
5. Mr Charles said that he understood that he was to produce all the material he could and that I would then review it to determine whether the claims could proceed. No such suggestion was ever made by me and the orders on their face make no reference to such a process. The procedure suggested by Mr Charles would be completely improper as it would amount to a tribunal member giving an applicant legal advice. I do not accept there is any basis for Mr Charles to say he formed that belief as a result of what was said at the many directions hearings. The orders were all in essentially the same terms between April and October 2015. I do not accept this contention as an excuse for non-compliance. At minimum Mr Charles ought to have been in no doubt that he was required to produce his own witness statement.
6. The orders from April to August 2015 paid regard to limitations faced by Mr Charles while he was incarcerated. Repeated extensions of time were granted to accommodate Mr Charles' particular circumstances. The extensions of time were not objected to by the respondents. After he was released it was a matter for Mr Charles to ensure that he complied in substance with the orders made in the time frame to which he had agreed.
7. Within the context of the management of this proceeding, Mr Charles has not provided a reasonable excuse for his non-compliance.

1. I am satisfied that Mr Charles' has caused disadvantage to the respondents. Given the earlier strike out decision, at present the respondents are largely in the same position they would be in if they had just been served with a new claim. The respondents waited more than five months for particulars of claim. Despite the length of time allowed, Mr Charles has not yet produced his own witness statement. The foundations of the proceeding are still unclear. There is no immediate prospect of the proceeding being listed for a hearing.
2. The other form of disadvantage to the respondents concerns the costs associated with reviewing the materials filed to date and attending directions hearings. Given the hundreds of pages included in the 5 November 2015 materials, it must have required many hours to assess and synthesise the content.
3. I have discussed above my assessment of Mr Charles' capacity to comply with the orders within the context of the scope and flexibility allowed to him through the orders and to self represented litigants more generally. In the light of that assessment, I consider the disadvantage to the respondents was unnecessary.

1. Having regard to the matters discussed above, I believe that Mr Charles has been conducting the proceeding in a manner which has unnecessarily disadvantaged the respondents. The relevant conduct is his failure over a period of some five months to comply with tribunal orders for the filing of essential documents setting out his claim, in particular amended particulars of claim and his own witness statement.

1. This is not a case like Bell Corp where a respondent has speedily sought summary dismissal or strike out under section 78 of the VCAT Act. As the history discussed above shows, there have been many opportunities for Mr Charles to comply with tribunal orders. Accommodations have been made. The 19 October 2015 self-executing order was made in recognition of the past failures to comply, the time that had already been allowed and Mr Charles' own doubts about whether he wished to proceed. Orders have been made and dates set in consultation with him. It could hardly be said that this application has been made as a first resort. I accept the proposition that the time for the respondents to cooperate and consent to more time passed on 5 November 2015.
2. The exercise of discretion under section 78 does not imply that the specific proceeding is frivolous, vexatious, misconceived or lacking in substance. If that was the case, an application under section 75 would be more appropriate. Given the suite of provisions dealing with summary dismissal or strike out in the VCAT Act it is clear that section 78 makes no assumption that the claim in issue is not arguable or is unreasonable. The section recognises that, even for a meritorious case, the manner in which the proceeding has been conducted means that the right to have it heard can be lost.[13] I have proceeded on the basis that Mr Charles may be able to make out some of his allegations and that would be a serious matter for these respondents and the community more broadly.
3. It is not necessary to engage in an analysis of how, in the light of Aon, case management arises under section 78. Suffice to say that the interests of justice are not served by proceedings being conducted in a manner which means the named respondents are unable to engage with the legal issues raised and which also means the proceedings cannot be heard and determined in a timely fashion. While an applicant such as Mr Charles has a very significant interest in a hearing on the merits and the VCAT Act seeks to ensure that can occur without undue formality or complexity, an applicant does not have a right to have a respondent identify and explain his claims for him and then be required to respond to them.
4. Although section 24 of the Charter contains a right to a fair hearing by a competent, independent and impartial court or tribunal, that does not mean that the express words of section 78 and the discretion it confers may not be relied upon in appropriate circumstances. Otherwise, section 78 would have no work to do.
5. I am satisfied that the tribunal, with the co-operation of the respondents, has sought to strike the appropriate balance between allowing Mr Charles every reasonable opportunity to present his case in a manner which can be responded to and the interests of the respondents in participating in a fair process which brings finality to the issues. Mr Charles has failed to take those opportunities.
6. For these reasons, I am satisfied that it is an appropriate exercise of my discretion to make an order under section 78 of the VCAT Act.

1. At the hearing, I invited submissions as to whether an order should be made for summary dismissal or summary strike out. The former order means that the proceeding is finished in its entirety whereas a proceeding that has been struck out may, in limited circumstances, be able to be re-commenced.[14]
2. Corrections sought summary dismissal. It relied on its application and the fact that the self-executing order made on 19 October 2015 referred to dismissal rather than strike out and that matter was explained at the time to Mr Charles. He consented to such an order being made, if the preconditions were met. Corrections contended that it would be potentially disadvantaged further if the proceeding was struck out and then sought to be revived.
3. Correct Care had sought summary dismissal with a strike out as an alternative. It contended that dismissal was open in this case and that, if the proceeding was revived under a strike out order, the position might be no different in terms of the explanation of Mr Charles' claim. However, as I understood it, Correct Care did not object to an order being made striking out the proceeding with a very conditional right to reinstatement by reference to the filing of proper amended particulars of claim.
4. The Commission did not express a view about which form of order was more appropriate but referred to the Charter fair hearing right. It proposed that an order that granted leave to apply for reinstatement might prevent a repetition of the present circumstances.
5. Mr Charles preferred a strike out order and provision of enough time for him to seek legal advice and then formulate an application for leave. He suggested that a period of a month would suffice.

1. Mr Charles told the tribunal that he had an appointment with a solicitor who had agreed to discuss the claim with him. As I understood it, that was an initial appointment only and there was no undertaking to act or provide advice. In those circumstances, I have made no assumption that Mr Charles will have the benefit of legal advice. Rather I have considered whether or not I should allow Mr Charles to re-consider his position and formulate his claim in terms that could be heard and determined.
2. Mr Charles is, unfortunately likely to continue to struggle with his health related conditions and his re-integration into the community. While I would hope those difficulties ease, the calls on his time and energies are likely to remain largely the same.
3. I have concerns about whether there is utility in granting Mr Charles another opportunity to prosecute his claim, given that over the course of five months Mr Charles was unable to organise himself to file a document representing adequate amended particulars of claim or his own witness statement. His wide ranging and often irrelevant responses to the section 78 applications suggested to me he was unable to address himself to the task and to focus on producing a coherent and legally appropriate statement about his claims. At the hearing he gave no indication that he appreciated where he had gone wrong and understood how to formulate the required documents.
4. However, I am mindful that it is a most serious matter to make an order that completely shuts out a person from having their claims heard and determined.
5. While satisfied that the tribunal has taken proper and fair account of Mr Charles' particular circumstances and vulnerability, I have decided to strike this matter out rather than summarily dismissing the proceeding. Where section 78 allows for either option, given the very serious consequence of a dismissal order, I consider, in these particular circumstances, a Charter compliant reading of section 78 leads to a strike out order being most appropriate.
6. That order will be subject to a right to apply for reinstatement within a period of five weeks (allowing for the upcoming Easter break) on condition that any such application is accompanied by a proper set of amended particulars of claim and a witness statement from Mr Charles which sets out his evidence.
7. The amended particulars of claim in respect of Corrections may not exceed 10 pages and so, where necessary, may be in summary form. The amended particulars of claim in respect of Correct Care must be in a separate document and must not exceed five pages.
8. Mr Charles must also file two witness statements: one setting out his evidence in respect of Corrections and another setting out his evidence in respect of Correct Care.
9. If an application is made to seek leave to reinstate, the application must be served on the tribunal, both respondents and the Commission. The respondents and the Commission would then be given time to respond to the application and a hearing would be scheduled.

1. Corrections sought costs in respect of its section 78 of the VCAT Act application. At the hearing, Ms Fitzgerald said that Corrections sought the costs it had incurred on and from 5 November 2015.
2. Correct Care did not seek a costs order in respect of its application.
3. In his response to Corrections' section 78 application, Mr Charles referred to various decisions of the tribunal in respect of costs. In summary, those decisions support a conclusion that a costs award in an EO Act is not usual and might be inconsistent with giving effect to the objectives of the EO Act.
4. Section 78(2)(c) of the VCAT Act says that, if the section applies, the tribunal may make an order for costs under section 109. Section 109 of the VCAT Act sets out the general power of the tribunal to make costs orders. Section 109(1) says that the parties will bear their own costs. Section 109(2) contains a discretion in the tribunal to order costs only if it is satisfied that it is fair to do so. The tribunal is to have regard to a range of factors which include whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding by conduct such as by failing to comply with an order or direction of the Tribunal without reasonable excuse.[15]
5. Under section 109(3)(e), the tribunal may also take into account any other matter it considers to be relevant. It is long established that the Human Rights List (and its predecessor, the Anti-Discrimination List), operates broadly as a no-costs jurisdiction and that is particularly relevant to EO Act claims. This is because it is important to ensure that applicants are not deterred from bringing complaints of discrimination, sexual harassment or victimisation for fear that, should they not succeed, a costs award may be made against them. That being said, costs orders can be made in respect of those claims. What is required is a consideration of the individual circumstances in each case.
6. The fact that I have determined that it is appropriate to make an order under section 78(2)(a), does not mean it is automatic that a costs order will be made. It is necessary for me to determine whether it would be fair to do so taking into account the circumstances of the case.[16]
7. I have decided that it is fair in the circumstances of this case to order that Mr Charles pay Corrections' costs incurred in respect of its section 78 application. That does not include costs associated with reviewing the documents when they were filed on 5 November 2015. I take particular account of the self-executing order made on 19 October 2015. As discussed above, that order was made because Mr Charles had expressed doubts about pursuing the proceeding. The self-executing order was made to allow the proceeding to be finalised efficiently with no need for a further hearing. When Mr Charles filed materials on 5 November 2015 he in effect notified the tribunal and respondents that he wished to pursue the matter. Having made that election, as described above, he filed documents which did not comply with the orders and did not allow Corrections to understand the claims he makes against it. The form of documents has led to the section 78 application.
8. Had Mr Charles complied with the orders or at least filed adequate amended particulars of claim and his own witness statement, the section 78 application is unlikely to have been required and the costs of that application and the section 78 hearing would not have been incurred.
9. I will order that Corrections' standard costs incurred in respect of the section 78 application be paid by Mr Charles. The standard costs are to be assessed in accordance with Rule 1.07 of the Victorian Civil and Administrative Tribunal Rules 2008, that is under the 'County Court costs scale' as defined in Rule 1.13 of Chapter I of the Rules of the County Court.

1. Over the course of the proceeding, Mr Charles has filed and served sensitive medical information which he described as confidential. In those circumstances, I consider it appropriate that an order be made under section 146(4)(b) of the VCAT Act that no person other than the parties to the proceeding and their legal representatives may inspect the tribunal file.

1. [1] Section 159 of the EO Act provides that the Commission may, with the leave of the tribunal, intervene in and be joined as a party to proceedings in the tribunal that involve issues of equality of opportunity, discrimination, sexual harassment or victimisation.

[2] Momcilovic v The Queen [2011] HCA 34; Slaveski v Smith & Anor [2012] VSCA 25; Bare v Small [2013] VSC 129; Kuyken v Chief Commissioner of Police [2015] VSC 204.

[3] Momcilovic per Crennan and Keifel JJ at paragraph [565].

[4] [2003] VSC 255.

[6] [2001] VSC 405.

[8] [2008] VSC 83

[10] [2009] HCA 27.

[14] Bell Corp at paragraph 54 and more generally discussion at Pizer's Annotated VCAT Act, 5th Edition, paragraph [75.60].

[16] See Sharp v The Canonical Administrators of St Monica's College Ltd [2003] VCAT 42 and Wahr v Australian Broadcasting Corporation [2000] VCAT 1081.