Chopra v Department of Education and Training [2017] VCAT 504 | Case summary

By application dated 18 January 2016 (and received and filed on 20 January 2016), the applicant alleged discrimination in employment on the basis of employment activity, race and sex, victimisation and racial vilification. Identified as respondents were the Department of Education and Training, and four named individuals - the principal and three other staff members of MacKinnon Secondary College.
A compulsory conference was fixed for 28 April 2016. However, by orders made in chambers by Senior Member Steele on 6 April 2016, that date was vacated. Orders were made for a directions hearing to be listed to deal with who should be named as respondents to the application. By then, a further nine people had been added, or sought to be added, as respondents by the applicant.
On 19 April 2016, the directions hearing was held before Senior Member Steele. Ultimately, orders were only made on that day in relation to representation. A further directions hearing was directed in respect of who should be named as respondents. By then, there were 14 named respondents, although it would appear the tenth to fourteenth respondents had not been formally joined. The respondents' position was that only the first respondent, the Department of Education and Training should be named as a respondent to the proceeding.
So far as representation was concerned, the Tribunal granted leave to the respondents to be represented by a professional advocate until the end of the proposed compulsory conference, and refused the applicant's application for orders under s 62(6) of the Victorian Civil and Administrative Tribunal Act 1998 ('the Act') to appoint a representative to represent him. Leave was reserved to renew his application after the compulsory conference.
The applicant was ordered to file materials in support of the proposed joinder of the tenth to fourteenth respondents by 10 May 2016. The applicant's materials were not filed by that date, and, by consent, the time for filing of materials in support of the proposed joinder of the tenth to fourteenth respondents was extended to 25 May 2016.
The directions hearing dealing with the issue of who should be named as respondents was held on 14 June 2016. At the conclusion of the hearing Senior Member Steele ordered the respondents to file a response to any matters in the documents filed that day by the applicant to which they had not had opportunity to respond, within a week.
On 26 August 2016, Senior Member Steele ordered the removal of the individuals named as the third and fifth to ninth respondents to the proceeding, and noting that the proposed tenth to fourteenth respondents had not been formally joined as parties, removed them also. By the time of the directions hearing of 14 June 2016, the applicant had identified a further three people he wished to have joined as respondents. Senior Member Steele refused the application in respect of two of them but ordered the third of them be joined as a respondent. That then left as respondents the original first respondent, the Department of Education and Training, original second respondent, Pitsa Binnion, who was the principal of MacKinnon Secondary College, Angela Arena, named in the original application and now retained as the third respondent and Georgia Schmidt, identified by the time of the directions hearing of 14 June 2016 as a proposed respondent, as the fourth respondent. They remain the only four respondents to the proceeding.
Senior Member Steele made further orders on 26 August 2016. She dismissed a renewed application by the applicant to have a representative appointed under s 62(6) of the Act, but again reserved leave to make a further application after the compulsory conference, and directed a compulsory conference be held.
The respondents' application for an adjournment of the compulsory conference was refused by Senior Member Steele on 13 September 2016.
The compulsory conference was held on 10 October 2016. The matter did not resolve and Member (now Senior Member) Dea directed the matter be listed for hearing, and ordered that the applicant provide to the Tribunal and the respondents any application he wished to make for an order for production of documents by the respondents within two days, by 12 October 2016.
A further directions hearing in relation to applicant's application for discovery was listed for 15 November 2016. The applicant's application to attend the hearing by telephone was dismissed by Member Grainger in chambers on 9 November 2016.
The application for discovery was heard by Senior Member Burdon-Smith on 15 November 2016. She delivered her reasons, and made orders on 17 January 2017. She dismissed the application for discovery or production of documents, and refused the applicant's renewed application for the appointment of a legal representative under s 62(6) of the Act.
Timetable orders were made for the hearing. The applicant was directed to file and serve his particulars of claim on or before 6 February 2016, the respondents to file their particulars of defence on or before 28 February 2017, the applicant's witness statements were to be served by 28 March 2017, the respondents' witness statements by 26 April 2017 and the applicant's materials in reply by 12 May 2017. By that date, the applicant and respondents were to exchange and file all the material on which they intended to rely at hearing. The usual consequential orders in relation to the conduct of the hearing by reference to the materials filed, and no departure from them without leave were made, and the matter was listed for a five-day hearing to commence on 3 April 2017.
It was clear the date fixed for hearing was in error, as it preceded the time for exchange of all materials, and by correcting order in chambers of 19 January 2017 Senior Member Burdon-Smith fixed the date for hearing for 22 May 2017. That order expressly stated that, in all other respects, the order of 17 January 2017 was affirmed.
The applicant was aggrieved by the decision of Senior Member Steele and wrote to the Tribunal on 27 January 2017. He complained that order 3 of the orders of 17 January 2017 had described his claim as being discrimination on the basis of race, sex and age in the area of employment, whereas he asserted his claim was on the basis of race, sex, disability and employment activity. He took issue with various parts of the reasons and orders, and sought changes to the orders which had been made on 17 January 2017. He sought written reasons for the refusal of his application for the appointment of a legal representative, and sought changes to the timetable set out in the orders of 17 January 2017.
As a result, Senior Member Steele made further orders in chambers on 31 January 2017. So far as the complaint that the orders of 17 January 2017 had misstated the basis of his claim, she noted that the applicant was free to proceed with his claim of discrimination in the area of employment on the bases he identified in his letter of 27 January 2017. I note the applicant's original application referred to discrimination on the basis of employment activity, race and sex, and did not refer to discrimination on the basis of disability. However, I also note there are subsequent references to discrimination on the basis of disability in the materials filed by the applicant.
So far as the request for changes to the orders of 17 January 2017 because the applicant disagreed with them, the directions noted the Tribunal has no power to review its own orders except for correction of error as provided in s 119 of the Act, and ordered there be no review of the orders of 17 January 2017 except in accordance with s 119 of the Act.
So far as the request for written reasons for the order refusing the appointment of a legal representative, the orders noted that s 117 of the Act excluded a requirement to provide reasons for interim orders, and recorded that no further reasons for the orders of 17 January 2017 would be provided. Again, the Tribunal expressly reserved to the applicant the right to renew his application for the appointment of a legal representative under s 62(6) of the Act, and directed that the applicant file a written application for the appointment of a legal representative under s 62(6) of the Act if he wished to renew his application for appointment of a representative.
So far as the request for changes to the timetable orders were concerned, the Tribunal ordered that it would only consider changing the timetable orders with the consent of the respondents, and directed the parties to endeavour as far as possible to comply with existing orders until new orders were made.
And finally, the Tribunal found that no orders for discovery of documents would be made until the applicant had filed and served his particulars of claim.
The applicant was still dissatisfied, and wrote again to the Tribunal on 17 February 2017. Again, Senior Member Steele dealt with the matter in chambers and made further orders on 22 February 2017.
By then of course, 6 February 2017, the date fixed for the filing of the particulars of claim by the applicant in accordance with the orders originally made on 17 January 2017, and confirmed in the orders of 19 January 2017 and 31 January 2017 had come and gone. No particulars had been filed. Nor had any written consent by the parties extending the time for the filing of materials been filed with the Tribunal, for it to consider varying the original timetable orders in accordance with the orders of 31 January 2017.
Again, the Tribunal declared that the orders of 17 January 2017 (with the amendment to the hearing date made by the order of 19 January 2017) stand.
It specifically allowed for the making of orders on the papers to change the timetable, if consent orders were filed by the parties.
The orders again declared the parties should endeavour as far as possible to comply with the existing orders until new orders were made.
Again, orders were made permitting the applicant to renew his application for the appointment of a legal representative under s 62(6) of the Act. The applicant was directed to either file and serve a written application, or, if the applicant had already filed all the written submissions he wished to make about the appointment of a legal representative, to identify in writing precisely where, in the correspondence he had provided to the Tribunal, those submissions occurred. The respondents were directed to file written submissions in response to any application for the appointment of a legal representative, and the Tribunal made provision for consideration of the renewed application for the appointment of a legal representative, and the making of orders in relation to that on the papers.
Finally, the Tribunal listed the matter for a directions hearing noting that it was 'at the request of the applicant to consider the timetable' for the proceeding.
That directions hearing was held before me on 14 March 2017.
Although the directions hearing was expressly listed in order to consider the timetable, the applicant sought to re-open matters already the subject of previous rulings, decisions and orders.
The applicant submitted he could not file his claim until he was given access to all documents in the possession of the respondents, which bore on the circumstances giving rise to his allegations of discrimination and victimisation. He said his was a circumstantial case, and he believed the documents in their possession (and possibly, the absence of documents which should have been in their possession) would provide the evidentiary basis for the drawing of the necessary inferences he had been discriminated against, and then victimised, as he alleged. Therefore, he submitted, provision of the respondents' documents was an essential precondition to his being able to plead his claim.
The applicant has made other attempts to obtain documents he believes are in the possession of the respondents and which relate to the events giving rise to his claim. He has made two separate Freedom of Information ('FOI') requests. It was a little unclear to me as to what the outcome of those original applications was, but he has brought applications for review in respect of both original FOI requests. As at the date of the directions hearing, both matters were currently pending before the Tribunal. They are being heard separately. One, I was told, was listed for hearing on 30 March 2017, the other, for late April 2017. There is apparently a likelihood the second hearing will be adjourned until sometime in May 2017.
The applicant submitted that he should not be required to provide his particulars of claim for at least six months. By then, he said, he believed both applications would have been determined. Implicit in his submission was his belief they would be resolved in his favour.
It is also the applicant's belief that the documents, once provided to him, will provide the evidentiary basis for re-joining the named people who had been removed as respondents, or in respect of whom his application for joinder had been refused by the orders of Senior Member Steele of 26 August 2016.
Notwithstanding the fact that the directions hearing was listed solely to deal with the applicant's request to extend the time for filing of materials, he submitted there were eight preliminary matters which must be dealt with before he should be required to file his particulars of claim. He went further, and submitted there was no utility in making any timetable orders until these matters were resolved.
They were, in the order in which he itemised them:
- (a) that Senior Member Steele and Senior Member Burdon-Smith be directed to have nothing more to do with his matter;
- (b) that the orders of Senior Member Steele of 26 August 2016 and Senior Member Burdon-Smith of 17 January 2017as amended by the order of Senior Member Steele on 19 January 2017 be set aside;
- (c) that a legal representative be appointed for him under s 62(6) of the Act, and that the respondents be required to proceed without a legal representative;
- (d) that questions of law be decided under s 107 of the Act, or referred to the Supreme Court;
- (e) that this matter be joined, and heard together with the two FOI claims where he was seeking the disclosure of documents from the first respondent and which were pending before the Tribunal;
- (f) that the parties who had been removed as respondents by the orders of Senior Member Steele 26 August 2016 be reinstated as respondents;
- (g) that the documents and information he had sought in the application for discovery dismissed by Senior Member Burdon-Smith on 17 January 2017 be made; and
- (h) an anonymisation order be made in his favour.
It can be seen that a number of the matters raised by the applicant as preliminary matters are attempts to re-litigate or overturn the decisions to remove respondents or to decline to join prospective respondents, and to refuse him discovery before pleading his particulars of claim. The matters of discovery, and the removal of respondents have been heard and determined. I do not have the power to set aside or reconsider the orders made by Senior Member Steele on 26 August 2016 in respect of who should be respondents or Senior Member Burdon-Smith on 17 January 2017 in respect of pre-pleading discovery. The matters were fully argued and are the subject of reasoned decisions. The applicant cannot seek to overturn them simply because he does not like the result.
I do not consider there is any basis for deferring the provision of the particulars of claim until the pending FOI matters have been resolved. As the applicant frankly acknowledged, his desire to defer provision of his particulars of claim until the FOI matters had been resolved was an attempt to obtain by other means, the benefit of the pre-pleading discovery order he was refused in this proceeding.
Nor do I consider it necessary or appropriate to order that this matter be heard at the same time as the FOI claims. I was told that the applicant had already made an application to have the FOI claims heard together, and joined with this proceeding, and that application had been refused. I am not prepared to entertain an application which, in effect, seeks to have me do something I do not have the power to do, namely, reconsider or overturn a decision by another Member of the Tribunal.
So far as the application for the appointment of a legal representative under s 62(6) of the Act, the Tribunal made orders on 22 February 2017 as to the manner in which the application was to be made. The applicant made no such application between 22 February 2017 and the date of the directions hearing on 14 March 2017. He cannot now call in aid the desire for an order in relation to the provision of legal representation as a basis for deferring his obligation to provide his particulars of claim when he has failed to take the simple steps so clearly set out in that order of 22 February 2017 to pursue that application in a timely fashion. If he wishes to make such an application, he can do so, in accordance with the orders. He cannot simply ignore the procedural orders already made in that regard, make a further application on his own terms and use the fact no such order has yet been made as a basis for deferring the filing of his claim.
The applicant advised his desire to obtain an order denying legal representation to the respondents would only be pursued where he unsuccessful in his application for the appointment of a legal representative. As he has not yet made application under s 62(6) in accordance with the orders of 22 February 2017, this is at its highest premature. It is no bar to compliance with the filing of particulars of claim and other documents in accordance with timetable orders, and having regard to the orders already made by the Tribunal.
The applicant initially told me he had identified five questions of law which were required to be determined as preliminary questions. Later he told me more had occurred to him. The applicant had not previously identified any questions of law which could or should be decided under s 107 of the Act, or by referral to the Supreme Court before he files his particulars of claim. In the circumstances, I consider this to be no more than a device to defer the provision of the particulars of claim.
It is clear that the basis for the application that I order Senior Member Steele and Senior Member Burdon-Smith to have nothing more to do with his matter is that the applicant is dissatisfied with their decisions. That is not a sound or proper basis for a request for either an order made by me to disqualify them from taking further part in the proceeding, or for a request for recusal to the particular member, if and when they are listed to preside over any further part of this proceeding. Even if there were a basis for applying for the disqualification of Senior Member Steele or Senior Member Burdon-Smith, that is not a necessary precondition for the filing of particulars of claim, or the other materials directed to be filed in accordance with the timetable orders. If either Member were listed to hear the matter, and the applicant considered he had a proper or sound basis for requesting they recuse themselves, he could make application. Lest the applicant interpret this as any criticism on my part of the conduct, or the decisions of either Senior Member Steele or Senior Member Burdon-Smith, I wish to make it clear, nothing was put, and there is nothing in the materials before me, to suggest there is a sound or proper basis for their disqualification
It has never been the law that a decision-maker be disqualified from taking further part in the hearing of a matter because the losing party is aggrieved by their decision. In any event, any application for recusal would have to be made before the Member concerned, and only if that Member were listed to preside over another stage of the hearing of this matter. I do not have the power to direct another Member of the Tribunal not to take part in any further hearings of a matter, simply because the losing party is aggrieved by their decision.
As to the request for an anonymisation order, nothing was put to support the applicant's assertion that this matter had to be determined before he could file his particulars of claim or any further timetable orders were made or complied with. The applicant complains that previous decisions have been published, and so his identity as an applicant, and the nature of his claim is in the public domain. Whether that is sufficient to justify the making of an anonymisation order is debatable, but it has no relevance to compliance with timetable orders. All the reasons of the Tribunal are, consistently with the requirements of open justice, published. Particulars of claim and the documents required to be filed thereafter are not published. A desire for decisions of the Tribunal involving the applicant to be anonymised is separate from and not dependent upon compliance with timetable orders.
None of the eight preliminary matters identified by the applicant justify or require delaying the filing of his particulars of claim and the other documents the Tribunal has order to be filed and served in order for all parties to know the case to be put, and to allow the matters in issue to be litigated in a fair and timely fashion.
What is clear from the procedural history I have outlined, and this recitation of the matters advanced by the applicant in justification of his contention he could not file particulars of claim for at least six months and until these matters have been dealt with, is that he continues to ignore orders which he does not want to comply with, and refuses to accept as binding decisions made by the Tribunal if he disagrees with them or considers them to be unfair or unfavourable to him.
A party who invokes the jurisdiction of the Tribunal must submit to its jurisdiction. That means a party must comply with, and abide by orders made, even if the orders are not the ones that they sought, and accept the decisions and rulings of the Tribunal, even if they are not the decisions or rulings they contended for. If they are aggrieved by a decision of the Tribunal, they can seek to exercise their appeal rights under s 148 of the Act. Timetable orders are just as much orders of the Tribunal as orders reflecting a ruling on a point of law, the exercise of the discretion or a final decision. A party to a proceeding is bound by them. If, after the Tribunal has made procedural orders such as timetable orders, a party finds themselves unable to comply with the orders, they can apply to the Tribunal to vacate or vary the order. But they cannot simply ignore the orders made because they do not like them, or seek to re-litigate matters already heard and determined simply because they do not like the result.
The refusal by the applicant to comply with the previous orders of the Tribunal in respect of timetable, and to accept the previous rulings made by the Tribunal led to the directions hearing listed on 14 March 2017 to run for many hours, and to roam far beyond the identified purpose of the directions hearing.
The long and complicated history of this matter which I have recited, the applicant's insistence on dealing with his preliminary matters and attempts to revisit the previous rulings and to complain about the conduct of the Members who had previously dealt with this matter, meant that I, like the two Members who have previously dealt with the matter in open hearing, was unable to deliver reasons and make orders at the conclusion of the hearing.
As a result, eight weeks has now elapsed since the time that the applicant was due, pursuant to the orders made on 17 January 2017, to file his particulars of claim. The particulars have still not been filed.
When the applicant was finally prepared to make submissions as to the new timetable orders that should be made, he again demonstrated that he was not prepared to accept the previous rulings of the Tribunal. He included in his proposed timetable an application to re-join all the respondents who had been removed, or who he had been prevented from joining, and an application for discovery. On the timetable he proposed, the exchange of materials would not conclude before the end of 2017. The respondents' proposed revised timetable, although considerably tighter than the applicant's, still allowed for more time between each stage than had been allowed for in the original orders by Senior Member Burdon-Smith. I see no reason to allow any greater time between the steps she set out in her original orders.
It is now 15 months since the filing of the application, and the interests of justice are not served by allowing the applicant to delay the proceedings. In the course of submissions he referred a number of times to the adverse impact on him of this unresolved proceeding. Delay can only compound that. Serious allegations have been raised in respect of the conduct of the respondents. They too are entitled to have the matter resolved in a fair and timely fashion.
I therefore make the following orders:
- (a) Orders 3 to 8 (inclusive) of the orders made by the Tribunal on 17 January 2017 are set aside. Order 9 of the orders made by the Tribunal on 17 January 2017, as varied by Order 1 of the Orders of the Tribunal of 19 January 2017 is set aside.
- (b) The applicant is to file with the Tribunal and serve on the respondents particulars of claim on or before 1 May 2017.
- (c) The respondents are to file with the Tribunal and serve on the applicant particulars of response on or before 22 May 2017.
- (d) The applicant is to file with the Tribunal and serve on the respondents all witness statements and documents on which he seeks to rely at the final hearing, together with a summary of legal contentions of not more than 10 pages on or before 19 June 2017.
- (e) The respondents are to file with the Tribunal and serve on the applicant all witness statements and documents on which they seek to rely at the final hearing, together with a summary of legal contentions of not more than 10 pages on or before 17 July 2017.
- (f) The applicant is to file and serve any witness statements and documents in reply, together with any reply to the respondents legal contentions of not more than five pages on or before 31 July 2017.
- (g) Unless the Tribunal gives leave, and except in accordance with these directions, the parties may not:
  - (i) present a case at the hearing different from that contained in the material filed by that party in the proceeding;

Chopra v Department of Education and Training

At a glance

Court

Decision date

Before

Source

Judgment (11 paragraphs)

Chopra v Department of Education and Training (Human Rights) [2017] VCAT 504 (12 April 2017)

Parties

Legislation Cited (1)