Proceeding dismissed pursuant to Section 75 of the Victorian Civil and Administrative Tribunal Act 1998.

1. This proceeding relates to an improvement notice issued by Inspector De Luca as an inspector under the Occupational Health and Safety Act 2004. The inspector issued the notice to Holmesglen Institute of TAFE, requiring remedying of a contravention of the Occupational Health and Safety Act 2004 which she found existed. The contravention was to be remedied by 13 June 2012. The inspector in her notice said:

I reasonably believe that HOLMESGLEN INSTITUTE OF TAFE is in contravention of section 21(1) of the Occupational Health and Safety Act 2004.

She elaborated a number of paragraphs as to the basis of her belief.

1. Her inspection took place after the applicant in this proceeding Mr Sky Crompton made a complaint to the respondent Victorian WorkCover Authority operating in this case under its name WorkSafe Victoria.
2. Without going into the detail of the matter, Mr Crompton complained of harassment and bullying in his treatment as an employee of the Institute. The inspector found, inter alia:

I was not satisfied that Holmesglen followed its equal opportunity policy and grievance resolution procedure.

I therefore have formed the reasonable belief that Holmesglen Institute of TAFE has failed so far as is reasonably practicable to provide and maintain for employees of the employer a working environment that is safe and without risks to health.

1. In this respect she was tracking the words of Section 21(1) of the 2004 Act. The operative part of the improvement notice was as follows:

Holmesglen Institute of TAFE must provide and maintain, so far as is reasonably practicable, a working environment that is safe and without risk to health. One means of compliance would be to engage an external party to mediate or arbitrate the matter in order that a resolution be achieved. This would include interviewing the complainant and respondents, speaking to any identified witnesses, convening a mediation or arbitration with the parties, making determinations of fact, and recommend how the parties can better communicate in the future.

1. The Institute took the matter up with WorkSafe's internal review unit which set the improvement notice aside. It is from the Internal Review Unit's determination setting that notice aside that Mr Crompton has brought this proceeding in the Tribunal seeking a review of the Internal Review Unit's determination.
2. In his application he stated the following:

The decision of the Internal Review Unit is in error in its findings of fact, the chain of events relating to the complaint and its understanding of these, its application of the facts of the events in relation to legislation and its reading of statements in relation to the complaint.

I wish the Internal Review Unit's decision to be overturned and the original decision of Inspector Stacey De Luca to be reinstated.

Further support documents will be provided in due course following discovery of WorkSafe's files and other related documents.

1. The Tribunal gave initial directions and a compulsory conference was conducted between the parties in 2012. That compulsory conference did not resolve the dispute, but arising out of it there was apparently a suggestion that a mediation should be conducted between the parties. This mediation was arranged privately and took place in February of this year. I have not been told of what transpired at the mediation, quite properly for a variety of reasons, however, the fact that we are here now with this proceeding continuing, allows me to infer that the mediation did not resolve matters. Now, the respondent Victorian WorkCover Authority has brought the present application under Section 75 of the Victorian Civil and Administrative Tribunal Act 1998. It seeks orders for a summary dismissal of the proceeding on the basis that it is frivolous, vexatious, misconceived or lacking in substance. Mr Crompton appears on his own behalf to oppose the making of any such order.
2. It is appropriate at the outset to consider the rules which govern the making of any summary dismissal orders and consideration of whether any such order should be made. These rules are well established. The words in Section 75 are an adaptation of a long hallowed formulation that is to be found in its present form in Order 23 of the Rules of the Supreme and County Courts. Whilst the words 'frivolous and vexatious' are very pejorative in their popular meanings, in this technical context they mean no more than that a proceeding is doomed to fail and if it is doomed to fail it is pointless to press it on to a complete hearing and determination. Therefore, no application for summary dismissal should be made if the outcome of the proceeding would turn in any way on any disputed question of facts. Indeed, for the purposes of an application such as this, the person resisting the application is presumed to be right and any facts which he or she alleges are true. The person seeking the summary dismissal must in effect establish, even if all that the applicant or plaintiff says is true, that the claim or proceeding is nevertheless doomed to fail. This means applications should succeed only in the clearest of cases. If a Court or Tribunal is left in any doubt as to what the outcome of an application might be, that doubt should be resolved in favour of not making the summary dismissal and therefore, not depriving an applicant in the case of a Tribunal's decision with the opportunity to have a full ventilation of his or her grievances and case.
3. These principles are exemplified as established by well known authorities such as State Electricity Commission of Victoria v Gravel [1998] 1 VR 102 and Forester v Aims Corporation [2004] VSC 506; (2004) 22 VAR 97. Also in the decision of Kyrou J in Howe v State of Victoria [2008] VSC 177; 2008 19 VR 640.
4. The principle that no summary dismissal should be made unless the Court or Tribunal is satisfied that there is no real question to be tried is to be found in the High Court's determination in Fancourt v Mercantile Credits Pty Ltd [1983] HCA 25; 1983 154 CLR 87, 89. Nevertheless, it is established that to demonstrate what is necessary to justify a summary dismissal sometimes argument of a fairly elaborate kind may be necessary, but if, following that argument, the necessary clarity is achieved, then the summary dismissal may nevertheless be made. So much is stated by Sir Garfield Barwick CJ, in his well known analysis of these matters in General Steel Industries Inc v Commissioner of Railways [1964] HCA 69; (1964) 112 CLR 125 (New South Wales). Informed by these principles, therefore, I turn to the present application.
5. Whilst Ms McKenzie did not frame her client's case in quite this way, what I think I understand her to be contending is that the proper descriptor for this proceeding and the one which she says could justify a summary dismissal is that it is misconceived. This is one of the adjectives or participles if you will referred to in Section 75(1)(a) of the Victorian Civil and Administrative Tribunal Act as justifying a summary dismissal. She observes that, according to the narrative that I have given, what is stipulated in the improvement notice which Mr Crompton seeks to have reinstated has already occurred, albeit in a somewhat different context of the one which the inspector conceived, that is, there has been a mediation between the parties, albeit that that mediation has not been successful. As far as that mediation is concerned, Mr Crompton says that it did not really meet what he sought from the proceeding. He says that he seeks validation. He seeks an examination of his grievances and favourable findings of fact as to the harassment and bullying that he says he was being subjected to. A mediation of the classic type is inherently incapable of doing that. On the other hand, Ms McKenzie observes that the words of the improvement notice appears to provide a range of options. Implicitly, she says, it was for the employer to whom the notice was addressed to choose from the various options given. The employer chose the mediation and, according to the terms of the notice, could not be obliged to choose the alternative procedure identified by the notice as arbitration. It would, one conceives, be the procedure which would entail interviewing the witnesses and making a finding of fact.
6. Ms McKenzie says, therefore, nothing is capable of being achieved in the restoration of the improvement notice which has already been complied with, albeit that it has been complied with late. As I understood her, she went further and said that the hearing in the Tribunal, within the confines of the legislation in which we are dealing, would not be calculated to provide the examination and validation process that Mr Crompton was seeking. She referred me to Section 111(1) of the 2004 statute which is the provision which empowers the issue of improvement notices. Sub-section (1) provides:

If an inspector reasonably believes that a person -

(a) is contravening of a provision of this Act or the regulations; and

(b) has contravened such a provision in circumstances that make it likely that the contravention will continue or be repeated

The inspector may issue to the person an improvement notice requiring the person to remedy the contravention or likely contravention for the matters or activities causing the contravention or likely contravention

1. Sub-section (2) provides the requirements for the form of the notice including statement of the basis for findings of fact. Sub-section (3) states:

An improvement may include directions concerning the measures to be taken to remedy the contravention or likely contravention or the matters or activities causing the contravention or likely contravention to which the notice relates

There follow two paragraphs for particular forms of directions that may be made.

1. She says that the focus of the improvement notice is on the future rather than upon the past, and upon systemic matters rather than individual matters, though necessarily the systemic problem is identified from particular events involving particular individuals. Here, as I understood her contentions, she says the focus which Mr Crompton seeks to bring is a focus upon his individual situation rather than upon the systemic issues which are properly the subject of improvement notices. Again, whilst she did not use quite this language, I understood the substance of what she submitted to be that for this reason the proceeding was misconceived and therefore one proper for a summary dismissal.
2. Mr Crompton said however, that there could be and was a proper systemic focus on his grievances. He referred to action taken by WorkSafe for the Australian Capital Territory with respect to the Canberra Institute of Technology where that body stipulated the doctrine of a new set of procedures to deal with issues of harassment and bullying.
3. Ms McKenzie conceded that, insofar as this Tribunal, in accordance with the model laid down for administrative reviews in the Victorian Civil and Administrative Tribunal Act 1998, would exercise, and was indeed obliged to consider the exercise of, all the powers vested in the original decision-maker, in this case the Internal Review Unit and indirectly the WorkSafe inspector, it would be competent for the Tribunal to, on review, frame an Improvement Notice which was, if you will, more appropriately targeted than the one that came to grief before the Internal Review Unit. She agreed that this was at least a theoretical outcome which might derive from a Tribunal hearing. She said, however, that as a matter of practical reality this was not the likely outcome of this proceeding if it were allowed to continue.
4. Mr Crompton referred to the example of the Canberra Institute of Technology. In his submissions he said that the Tribunal would be invited to exercise its full range of powers in dealing with an administrative review under Section 51 of the Victorian Civil and Administrative Tribunal Act 1998. I asked him to indicate in precise terms what order he would be seeking the Tribunal make following a final hearing which was determined in his favour but he was unable to formulate a precise order which he might seek the Tribunal to make.
5. What, then, is the proper disposition? In my view, this is the sort of case referred to by Sir Garfield Barwick in the General Steel Industries case. That is, an application for summary dismissal which requires elaborate argument and analysis but which, following that elaborate analysis and argument, ultimately is revealed as one proper for summary dismissal. I agree first, that in the circumstances it would be pointless, and it is inconceivable that the Tribunal would, however persuasive Mr Crompton's case might be, simply reinstate the improvement notice which was made by the inspector; first, because in my view the improvement notices are, in accordance with Section 111, required to have a systemic focus, yet this improvement notice seems to be aimed at stipulating a procedure to quell a particular controversy. An application which simply seeks to reinstate that order would, for that reason, be misconceived because it would seek to have the Tribunal do what the 2004 Act does not conceive should be done either by inspectors, Internal Review Units or by the Tribunal; that is, turn the improvement notice regime into one for the quelling of individual disputes. It remains possible in theory for a wider regime to be stipulated, a new system for dealing with harassments and bullying. Mr Crompton held a very large wad of paper in his hand. He told me that what he was holding were prints of the existing regime for the treatment of issues of harassment and bullying. The inspector's finding was not that these very extensive procedures or any local version or supplements at the Holmesglen Institute were inadequate, but rather, that they had not been implemented. Because of that factual context in which the matter comes forward and because it is simply as a matter of practical reality inconceivable that a body such as the Tribunal could reformulate so vast a body of material, the thought that the Tribunal could in this proceeding take a step along the lines of the one taken by the WorkSafe authorities in the Australian Capital Territory was simply inconceivable. To the extent that this proceeding supposes that such a thing could occur, it is in my view misconceived likewise.
6. The result, therefore, is that the requirement for a summary dismissal have been made out. Accordingly I propose making the order of summary dismissal under Section 75.