Medium Neutral Citation [2003] VCAT 589

Pursuant to sections 75, 80, 88 and 109 of the Victorian Civil and Administrative Tribunal Act 1998 ('the VCAT Act') this Tribunal orders and directs-

1. That, on the Respondent's application under section 75 of the VCAT Act the Complaint is dismissed except for claim 'H' as summarised in the Tribunal's Reasons for Decision.

2. That the Respondent's costs in relation to that application are reserved. The Respondent may apply for those costs upon reasonable notice to the Complainant and the Tribunal.

3. The Complainant is to file with the Tribunal and serve on the Respondent amended particulars of Complaint on or before 27 March 2003.

4. The Respondent is to file with the Tribunal and serve on the Complainant amended particulars of defence on or before 17 April 2003.

5. This matter is listed for mediation at 10:00 a.m. on 30 April 2003 at 55 King Street Melbourne. The Complainant must appear in person. A representative of the Respondent with authority to settle the matter on the party's behalf must attend. The legal representatives of the parties may attend. A support person for the Complainant may attend.

6. The Complainant is to file with the Tribunal and serve on the Respondent witness statements on or before 15 May 2003.

7. The Respondent is to file with the Tribunal and serve on the Complainant witness statements on or before 29 May 2003.

8. The Complainant is to file and serve any material in reply on or before 5 June 2003 and on or before that date the parties are to exchange and file all the material on which they intend to rely at hearing.

9. Unless the Tribunal gives leave and save in accordance with these Directions, the parties may not:

(a) present a case at the hearing different from that contained in the material filed by that party in the proceeding;

(b) call a witness whose statement has not been provided;

(c) seek to adduce further evidence-in-chief beyond that contained in the statement of a witness's evidence filed with the Tribunal.

11. This matter is listed for a four day hearing commencing at 10:00 a.m. on 17 June 2003 at 55 King Street Melbourne.

For the Complainant: Mr R. Richardson, Representative

[1] I reserved my decision from yesterday, I am now in a position to hand it down. The decision is that all but one of the claims in the Complaint are dismissed and that in respect of that one claim the Respondent's application fails and also that amended Particulars of Complaint and Defence have to be filed and served. I now give my reasons.

[2] Mr Cooper has lodged with the Equal Opportunity Commission ("the Commission") a Complaint under the Equal Opportunity Act 1995 ("the Equal Opportunity Act"). The Complaint claims industrial activity discrimination in employment against the Respondent, who is the State of Victoria in its capacities of Department of Justice and the Correctional Enterprise. I call the Respondent in these Reasons, "the Departments".

[3] The Commission declined to entertain the Complaint under s.108(1)(a) and (c) of the Act. These provisions permit the Commission to decline a Complaint which it considers frivolous, vexatious, misconceived or lacking in substance or which relates to incidents allegedly occurring more than 12 months before the Complaint was lodged. Mr Cooper then required the Commission to refer the Complaint to this Tribunal and it did so under s.108(3) of the Act.

[4] The parties have, according to the Tribunal's original directions, filed Particulars of Complaint and Defence.

[5] The Departments now apply under s.75 of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act") to strike out or dismiss the Complaint on all the grounds mentioned in that section. These are that the proceeding, in this case the Complaint, is frivolous, vexatious, misconceived, lacking in substance or an abuse of process.

[6] In many cases the Tribunal has followed propositions set out in relation to applications of this kind by the Victorian Court of Appeal in Rabel v. State Electricity Commission (1998) 1VR 102. (See for example Norman v. Australian Red Cross Society (1998) 14 VAR 243.) As far as relevant here, those principles are these.

[7] The Tribunal should be cautious before summarily terminating a proceeding under the section and so depriving a litigant of the chance to have the case heard in the ordinary course. It should only do so where a respondent satisfies it that the case is manifestly hopeless, obviously untenable or on no reasonable ground can justify relief.

[8] The Tribunal has before it as well as the Particulars of Complaint and Defence, written and oral submissions by the parties on this application. Before summarising the claims based on the material before me, I should first explain that I read the Complaint as a whole in a broad and non technical sense. I read the Particulars of Complaint in a similarly broad way. It must be remembered that Mr Cooper is not a lawyer and that he is represented in this proceeding by his union representative who is also not a lawyer.

[9] What has been done in both the Particulars and the Complaint is to tell the Complainant's story as the Complainant sees it and effectively to leave it to the Tribunal to make fine characterisations of the Complaint. The Particulars should not be read in my view with the rigour of a formal pleading. The Tribunal's task on this application is to decide whether the case is so manifestly hopeless that it should be terminated at this point.

[10] It maybe on an application such as this that the Tribunal while not satisfied that the claims are manifestly hopeless, nevertheless concludes that they have not been properly particularised. Clearly a Respondent must know the case the Respondent must meet and must know it with sufficient clarity and detail so that it is enabled to formulate its response.

[11] If the Tribunal considers that Particulars of Claim are deficient in this respect, it will order amended particulars to be filed. I now come to the Complaint.

[12] I first note that the Respondent denies the claims absolutely. As clarified by the submissions for Mr Cooper, his claims are these. He is a person with the attribute of industrial activity under s.6 of the Equal Opportunity Act. The industrial activity on which he relies is being a member of a trade union. It appears from the Particulars of Complaint that this is the Community and Public Sector Union and I call that union in these reasons, "the Union".

[13] He also relies on his participation in activities organised or promoted by that Union. In his Particulars of Complaint he says that he is an active Union member and also refers to the following specific activities.

(A) In August 1990 while working as a prison officer at the Lodden Prison, he proposed at a Union meeting a no confidence motion in the governor and administration manager of the prison for their failure to comply with staffing levels agreed with the Union. Mr Cooper says that although the vote was not carried the governor took this action personally.

(B) Mr Cooper says that he was involved in September 1994 at a time when he was working at the Pentridge Prison, in industrial action by the Union including a picket line. He says that a senior manager, Governor King, accused him of damaging employees' cars and that acting chief prison officer Pickering, threatened him with physical violence.

(C) Mr Cooper says that he served as sub-branch secretary of the Union at the Bendigo Prison. The dates on which he did this are unclear but it appears that they were between 1994 and February 1997.

[14] Mr Cooper says that because or substantially because of this industrial activity, the Departments directly discriminated against him by treating him less favourably than other employees or applicants for employment in similar circumstances.

[15] The respects in which he was treated in this way are these.

(A) He was treated as if he had fraudulently claimed sick leave in November 1992 while he was working at the Metropolitan Reception Prison at Pentridge. He says that he broke his elbow at work and took leave because of this and that the leave was supported by a medical certificate. He says that the prison governor rang him constantly at home to check on him and made fun of his injury and did not treat it seriously and also made disparaging comments about him and his autistic son.

(B) He says that correctional officers employed by the Departments deliberately did not deal with and denied receiving applications which Mr Cooper made in 1993 for a hostage negotiators course and for secondment to the Prison Investigation Unit.

(C) Mr Cooper says that in September 1994 at the time of the Pentridge picket line, no disciplinary action was taken against the prison officer who threatened him with physical violence although he requested that that action be taken.

(D) Mr Cooper says that the Departments have discriminated against him by attempting to institute disciplinary action against him in respect of an unfounded allegation that he had damaged employees' cars at the time of that picket line. He says that the attempt came to nothing because an officer who had been requested to sign a prepared statement, refused to sign it.

(E) Mr Cooper says that in October 1994 he was told by the governor of the Pentridge Prison to reactivate an earlier application made by him for transfer to Bendigo Prison. His claim is that he was effectively required to transfer from Pentridge to Bendigo.

(F) He says that he was subject to inappropriate surveillance by prison management while he worked at the Bendigo Prison and that there was a threat to get rid of him.

(G) He says that in February 1997 during a process involving the declaring vacant of custodial prison officer positions at the Bendigo Prison, and the offering of redeployment or retrenchment to those whose positions had been declared vacant, Mr Cooper was offered redeployment to a position at the Lodden Prison. He says that the Departments knew that he would be unable to accept that offer because the position required the use of a car.

He says that it was known that although he had a car, he was unable to use it for work purposes because it was required for use for transporting his autistic son. His claim is that by making him an offer redeployment, that they knew he would refuse, the Departments effectively enforced him to leave his employment and take the retrenchment offer.

(H) He says that he was not short listed or interviewed for several positions in the Victorian prison system for which he applied after his retrenchment during the period 1997 to 1999. This was despite what he says was his lengthy previous experience in the industry and his good performance as a prison officer.

(I) Mr Cooper says that he was not appointed to two positions in the Northern Territory Corrective Service. He applied for the first of these on 20 May 1997 and for the second in February 1999. He says that at his interview for the first position, an interview that occurred by tele-conference, one of the panel members who was a superintendent of Northern Territory Prisons, raised the blue file and said, "We know all about you".

[16] The Departments argued that claim (I) should be dismissed because the Equal Opportunity Act does not apply to conduct engaged in the Northern Territory. I agree. The Equal Opportunity Act does not expressly state that it has effect beyond Victoria. Nor do I think that there is anything in the Act that requires the necessary implication that the Act has that effect. As Winneke, P. President of the Victorian Court of Appeal pointed out in Spencer v. Darling [1996] VSC 51; (1997) 2 VR 127,

[17] The Equal Opportunity Act prohibits discrimination in relationships specified by the legislation. Examples are the relationship of employer and employee, service provider and recipient, and educational authority and student. At the heart of the concept of both direct and indirect discrimination is conduct by the discriminator. In the case of direct discrimination that conduct is constituted by treating the victim of the discrimination in a particular way. In the case of indirect discrimination, that conduct is constituted by the imposition of a requirement, condition or practice. (As to this see generally s.8 and 9 of the Act. For examples of the defined relationships see ss.14-37 and 42 of the Act. As to the extraterritorial effect of the Act see Read v. Jet Aviation Management VCAT 25 August 2000 and compare Brannigan v. The Commonwealth (2000) EOC 93-082, a decision of The Human Rights and Equal Opportunity Commission of the Commonwealth, affirmed on appeal by the Federal Court.)

[18] In a particular case there maybe a question as to whether the relevant conduct can be said to have occurred in Victoria. If it does occur within Victoria the Equal Opportunity Act will apply. Nevertheless there maybe some elements which are out of Victoria and some within Victoria which raise the question of where the conduct actually occurred.

[19] In this case there is no dispute that the applications for positions were made to the Northern Territory. The interviews, although conducted by tele-conference, were conducted by officers located in the Northern Territory and the applications and interviews were for positions with the Northern Territory Government and were located in the Northern Territory.

[20] This conduct is conduct within the Northern Territory and outside Victoria. The Equal Opportunity Act cannot apply to it. The claim therefore is manifestly hopeless and should be dismissed.

[21] The Departments then argue that the Complaints should be dismissed as an abuse of process. The Complaint, the Departments say, relates to incidents the first of which is alleged to have occurred in 1990.

[22] The Complaint was not lodged until 23 May 2002. No acceptable explanation is given by Mr Cooper for the delay.

[23] As far as claims (A) to (G) are concerned, I agree with this submission. There is no adequate explanation by Mr Cooper as to why he delayed so long in making these claims. The delay is five years for the newest of the allegations and some 12 years for the oldest or earliest of the allegations.

[24] Mr Cooper does give an explanation as to why he delayed making the claim (H) which concerns the post February 1997 applications for employment to both Victoria and the Northern Territory. That explanation is that he was trying through the prison personnel officers, the relevant minister, the Freedom of Information Act including applications for review to VCAT and the ombudsman, to obtain more information about the reasons for the refusal of his applications for employment.

[25] He says that this process was not finalised until 2001 after the ombudsman had made a report dated October 2000 and there had been a number of meetings with the Departments' officers. He says that material discovered on his file during that process resulted in the making by his Union on his behalf of an application for certain entitlements to the Australian Industrial Relations Commission and that this application was finalised in November 2001.

[26] In my view this is a sufficient explanation for the delay in pursuing claim (H). A Complainant is not required where there is a choice of proceedings which he or she may take, always to choose first to commence the Equal Opportunity proceeding. It is not unreasonable for this Complainant to try to seek further information as to the reasons for the Departments' alleged conduct or to follow up other issues which arose from the results of that search.

[27] I now come to claim (H). The Departments said that I should dismiss this claim for two reasons. First they say that it is brought for a collateral purpose and is vexatious. Mr Cooper they say is bringing this proceeding to try to obtain documents which he could not obtain under the Freedom of Information Act. He is attempting to obtain evidence to support a case which would otherwise be baseless.

[28] Second, they say the case is manifestly hopeless because there is incapable of being a link between Mr Cooper's claim of industrial activity and the Departments alleged conduct, even taking his case at its highest and assuming that he can prove what he asserts. Since the Departments' officers did not state expressly that his applications for employment were refused because of his industrial activity, Mr Cooper must persuade the Tribunal to infer from the primary facts, that this was a substantial reason for the Departments conduct. Such an inference, say the Departments, is not open to the Tribunal.

[29] I deal with the second matter first. As far as the inference not being open is concerned, I disagree with the Departments' submission. In my view Mr Cooper's case is this. He has a long history of union related activity, known to the State Correctional Services and prison management. Their attitude to this activity is shown by a series of hostile actions to him over a long period.

[30] I pause here to say that because of my conclusions as to claims (A) to (G), these alleged actions cannot be the subject of specific claims of discrimination but they can be evidence of the Departments' awareness of an attitude to Mr Cooper's industrial activity. Mr Cooper is saying that this hostility persisted and was the reason why his job applications were refused from 1997 to 1999. He is saying that the Tribunal should not accept alternative explanations offered by the Departments.

[31] The Tribunal he says in determining what weight to give these explanations should take into account the way in which he says the Departments suppressed part of his personnel file and did not include in it relevant material supporting him.

[32] I am not prepared at this relatively early stage and before witness statements have been filed and served, to say that such an inference would not be open to the Tribunal. Whether at the full hearing the Tribunal would make such an inference is for the Tribunal to decide at that time and on the material then before it.

[33] As far as the claim of a vexatious Complaint is concerned, the Departments have not satisfied me that the claim is vexatious. Mr Cooper through various avenues, as he is entitled to do, has tried to seek more information about why his applications for employment were refused. He clearly regards the material he got as unsatisfactory and incomplete. He clearly believes the decisions to have been discriminatory and has sought redress for this under the Equal Opportunity Act. This is not enough to prove his claim is made for a purpose other than seeking the redress provided for by that Act.

[34] I conclude the claims (A) to (G) and (I) are dismissed and claim (H) therefore survives. Mr Cooper must file amended Particulars of Complaint to reflect that only that claim now survives. The Particulars should explain what the relevant industrial activity is; how the Departments are said to have treated Mr Cooper less favourably, substantially because of that industrial activity; what is the relevant comparator, that is how Mr Cooper was treated less favourably than what group of people in similar circumstances; and which parts of s.13 of the Equal Opportunity Act are relied on.

[35] The Particulars will need to be more specific about dates; for example, the dates of the relevant industrial activity and of the job applications and their refusal. They will need to state the nature of the positions applied for. I will set a timetable for the filing and service of both Particulars of Complaint and Particulars of Defence.

[36] I should add that if the state proposes to rely on different versions of events or reasons for its conduct other than those alleged in amended Particulars of Complaint it should say so in its Particulars of Defence. Broad denials in Particulars of Defence are not in my view enough, unless this is in fact all that the Respondent intends to rely on at hearing. Just as Particulars of Claim are meant to tell the Respondent the case that the Respondent will have to meet so also are Particulars of Defence the means by which the Respondent makes the Complainant aware of the Respondent's case.