CZZ v Bailey (Human Rights) [2021] VCAT 1238

1 The application under section 75(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) for summary dismissal of unjustified proceedings is granted.

2 The application made by the Applicant against the Respondent under the Equal Opportunity Act 2010 is dismissed.

3 Under section 146(4)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the Tribunal directs that no person other than a party to the proceeding or their legal representatives may inspect the Tribunal file.

The Victorian Civil and Administrative Tribunal is providing these written reasons with the names of certain persons anonymised. Section 121 of the Family Court Act 1975 (Cth) prohibits the publication of an account of proceedings or any part of proceedings that identifies a party to those proceedings, a person related to or associated with a party to the proceedings or a witness in the proceedings.**

1 This proceeding concerns an application made by the Applicant under the Equal Opportunity Act 2010 (EO Act) dated 26 March 2021. The Applicant claims discrimination against him as a father of a student, in the area of education.

2 The Respondent has made an application for summary dismissal of unjustified proceedings under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act).

3 A hearing of the section 75 application was held on 5 October 2021 before me, where I heard oral submissions and then reserved my decision.

4 Section 75(1)(a) of the VCAT Act states that, at any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion - is frivolous, vexatious, misconceived or lacking in substance.

5 The Tribunal's role in determining an application under section 75 of the VCAT Act is not to examine the evidence relied upon by the Applicant but to proceed on the basis that the Applicant will be able to prove all the allegations made in the claim. In an application under section 75, it is appropriate to assume the Applicant will be able to prove each fact alleged in the claim.[1]

6 The Tribunal should not order summary dismissal in circumstances where the outcome of the case might depend on findings of fact based on contested evidence.[2] In considering an application under section 75 of the VCAT Act, the Tribunal must take the Applicant's case at its highest.

7 In his application under the EO Act, the Applicant claimed discrimination against him as a father of a student, in the area of education, because he has been refused a copy of his daughter's school report. The Applicant stated he has a legal right to his daughter's school report that cannot be removed without written authorisation.

8 In his written submissions provided prior to the hearing and his oral submissions made during the hearing, the Applicant stated he has a legal right to his daughter's school report, and that in refusing to provide the school report the Respondent has discriminated against him on the basis of him being a parent.

9 The Applicant refutes the Respondent's position that he does not have a right to the school report. He also refutes the Respondent's claims that his application is analogous to a previous application he made, and is an attempt to continue to contact, coerce or perpetrate family violence against his daughter and her mother.

10 The Applicant raised a number of concerns about who made the decision to refuse to provide him with a copy of the school report, and concerns about bias by the Respondent and the principal of the college. The Applicant noted previous schools had eventually provided him with school reports. He also stated previous proceedings he has made under the EO Act have dealt with different claims. The Applicant refutes his application under the EO Act is frivolous, vexatious, misconceived or lacking in substance, or an abuse of process.

11 The Respondent provided copies of Court orders to the Tribunal including an Interim Intervention Order naming the Applicant as the respondent, and his daughter and her mother as protected persons. The Respondent also provided a copy of a Federal Circuit Court Order confirming the Applicant does not have parental responsibility for the child.

12 The Respondent stated the Applicant does not have parental responsibility for his daughter as a matter fact and law. The Respondent submitted the Applicant has no prima facie parental rights to information going to the education of his daughter, and that the Respondent had formed the belief that the Applicant's request for the school report may be an attempt to control and coerce his daughter and her mother. The Respondent referred to a previous application against the college with analogous claims of discrimination, and noted the Tribunal had ruled against the Applicant.

13 The Respondent submitted that given the current proceedings in the Magistrates' Court of Victoria, and the existing Federal Circuit Court Order, the Respondent had acted prudently and reasonably with consideration to his obligations to the child and her mother in refusing to provide the Applicant with a copy of the school report.

14 The Respondent submitted that the application may be appropriately characterised as vexatious, and is misconceived and an abuse of process under section 75 of the VCAT Act.

15 The principles that guide the Tribunal when considering an application for summary dismissal are well established. The Tribunal should exercise caution before summarily dismissing a proceeding because such action will have the effect of depriving a litigant of the opportunity to have his or her case decided in the ordinary course. This is of particular importance where the Applicant is self-represented.

16 The Tribunal should only make an order summarily dismissing or striking a proceeding when satisfied that, because of one of the grounds in section 75 of the VCAT Act, the case is obviously hopeless, unsustainable in fact or in law, or on no reasonable view can justify relief, or is bound to fail.[3]

17 During the hearing I raised my concerns about what I considered a threshold issue; whether the claims made by the Applicant, even if taken at their highest, could be considered prohibited discrimination as proscribed by the EO Act.

18 As discussed during the hearing, the EO Act prohibits discrimination against a person, on the basis of an attribute, in an area of activity covered by the EO Act.

19 The Applicant has claimed discrimination against him as a father of a student in the area of education, because the Respondent has refused to provide him with a copy of his daughter's school report.

(1) An educational authority must not discriminate against a person

(a) in deciding who should be admitted as a student; or

(b) by refusing, or failing to accept, the person's application for admission as a student; or

(c) in the terms on which the authority admits the person as a student.

(2) An educational authority must not discriminate against a student -

(a) by denying or limiting access to any benefit provided by the authority; or

(c) by subjecting the student to any other detriment.

21 In response to the concerns raised, the Applicant stated he chose the area of education because it happened in an education environment/sector.

22 The Applicant submitted a parent was entitled to a school report, and a business manager should not make the decision to refuse to provide the school report. The Applicant stated that denying him the school report was based on his attribute as a parent.

23 He submitted that as a parent he had a legal right to the school report. He referred to the Education and Training Reform Bill 2006 and to information on Department of Education webpages.

24 The Applicant submitted that it must be specially stated in Family Court Orders or an Intervention Order that he was not entitled to the school report. It cannot be a vague interpretation, and this needs to be resolved through a hearing.

25 The Applicant stated he was still fighting for contact with his daughter, and he was not in attendance when the Interim Intervention Order was made. He stated that there had been no final order made, and he would be resisting the application when it returned to Court. He stated there had been no violence.

26 The Applicant noted previous schools had eventually provided him with school reports, and he submitted he was entitled to receive the school report and that his complaint was not vexatious or frivolous.

27 The Applicant questioned how asking for the school report could be construed as violence against his daughter. He submitted he just wanted to know how his daughter was going academically. He noted he was unable to attend the hearing of the Interim Intervention Order and would be resisting the order when it came to the substantive hearing. He submitted there was no chance a further order would be made as there had been no violence and he had not seen the mother since 2015. He stated he was just seeking access to his daughter's school report, and his complaint needed to go to a hearing, because parents are entitled to school reports. After the hearing the Applicant also filed a Family Report written by Sue Buckley.

28 I have taken all the material, evidence, and submissions into account in making my decision in relation to the application for summary dismissal under section 75 of the VCAT Act.

29 While the Applicant believes he has a right to his daughter's school report, and wishes to enforce or pursue that right, and the Respondent refutes the school is required to provide the school report, and denies they have discriminated against the Applicant, the application for summary dismissal under section 75 of the VCAT Act has been finalised based on the threshold issue I raised during the hearing.

30 I note the Applicant has not claimed he has been discriminated against in relation to being admitted as a student, or that his application for admission as a student has been refused or failed to be accepted, or that there have been discriminatory terms for him to be admitted as a student.

31 Therefore, on the evidence before me, I have concluded that the Applicant's claims do not relate to or allege discrimination against a person as proscribed in subsection 38(1) of the EO Act.

32 I have also concluded that the Applicant's claims do not relate to or allege discrimination against a student as proscribed in subsection 38(2) of the EO Act.

33 Therefore, even if the complaint is taken at its highest, the complaint is bound to fail as a complaint of prohibited discrimination in the area of education under the EO Act.

34 I have also considered whether the claims raised by the Applicant could relate to any other areas of prohibited discrimination proscribed in the EO Act.

35 VCAT has previously considered the question of whether a claim relating to the refusal to provide information about a student to a parent could be considered prohibited discrimination in the area of goods and services.

36 The decision in Tarpey v State of Victoria[4] found that such a claim could not come within the ordinary meaning of the term "goods", and that the term "services" as defined in the EO Act, specially excluded education and training in an educational institution.

37 That decision was made under the Equal Opportunity Act 1995 (Vic), but deals with the same wording in the corresponding sections of the current EO Act.

38 While a previous decision of the Tribunal does not bind me in the current matter, I find the reasoning sound and persuasive. I do not consider the claims raised by the Applicant relate to prohibited discrimination in the area goods and services.

39 After considering all the other areas, I do not consider the claims raised by the Applicant relate to any of the areas of prohibited discrimination proscribed by the EO Act.

40 While the Applicant's application form refers to conduct of discrimination, failure to make reasonable adjustments and victimisation, based on the attribute of marital status, parental status or status as a carer, personal association with someone who has or is assumed to have one of these personal characteristics, the Applicant specified his compliant as discrimination against a father of a student in the area of education.

41 After taking into consideration all the material, evidence and submissions provided, I have concluded the Applicant's claims do not relate to or allege prohibited discrimination in an area of activity covered by the EO Act, or a failure to make reasonable adjustments or victimisation, as proscribed by the EO Act.

42 While I accept that the Applicant believes he has a right to his daughter's school report, and he wishes to enforce or pursue that right, I consider his application made against the Respondent under the EO Act is bound to fail.

43 Therefore, in my opinion, the Applicant's proceeding under the EO Act is misconceived.

44 The application under section 75(1) of the VCAT Act for summary dismissal of unjustified proceedings should be granted, and the application made by the Applicant against the Respondent under the EO Act dismissed.

[1] Owners Corporation No. 1 PS537642N v Hickory Group Pty Ltd (Building and Property) [2015] VCAT 1638, referring to Noonan v Owners Corporation No. 2 PS409115E [2011] VCAT 1934 [17].

[2] Campagnolo v Benalla and District Football League Inc [2009] VSC 228 [41].

[3] State Electricity Commission of Victoria v Rabel [1998] 1 VR 102.

[4] Tarpey v State of Victoria - Department of Education and Early Childhood Development & Ors (Anti-Discrimination) [2009] VCAT 410 (13 March 2019).