Victorian Civil and Administrative Tribunal|2000-04-30

Dowie v Northey & Anor [2000] VCAT 823 (30 April 2000)

CATCHWORDS Anti-Discrimination - application to strike out complaint - whether hearing of complaint should be stayed because content of complaint also the subject of defamation proceeding in County Court - application by Complainant for Tribunal to withdraw leave for representative of Respondent's to continue to represent them - relevant principles - VCAT Act 1998 ss62, 75, 80, 97, 98 and 123.

THIRD RESPONDENT Allcopy Colour Printing & Copy Centre

DECISION Application to strike out complaint dismissed; representatives leave to represent Respondent company withdrawn; representatives leave to represent first Respondent continued subject to conditions; hearing of complaint stayed pending determination of County Court proceeding.

RESPONDENTS Mr Rigoli by telephone link up.D E C I S I O N

DEPUTY PRESIDENT: Having heard oral submissions yesterday and having received written submissions on these various matters before that I reserved my decision and I hand it down today.

The decisions are embodied in relatively complicated orders but, in broad terms, my decision in relation to the application to strike out or dismiss the complaint is that the application is dismissed. Then I have ordered that the hearing of the complaint be stayed until the County Court proceeding is finally determined or otherwise disposed of. But I've ordered that all the procedural steps which are necessary to prepare this matter for a hearing in this jurisdiction be complied with in the ordinary course. So that when the County Court proceeding is determined or disposed of the matter will be then in a position here to be brought on immediately for hearing.

As far as leave to be represented is concerned, I have withdrawn Mr Rigoli's leave to represent the respondent company on the basis that there's no authorisation and I have ordered that Mr Rigoli's leave to represent the individual respondent, Mr Northey, continues subject to a particular condition which I'll come to later.

Finally, I have set a timetable for the various procedural steps in relation to this complaint proceeding and as far as the complainant's application for costs is concerned I have set a timetable for that. Then at the end of the order I grant a general liberty to apply to the parties.

I now come to my reasons for this decision. This is an application by the respondents, Ian Northey and Northey Enterprises Pty. Limited, which I'll call the company, under s.75 of the Victorian Civil and Administrative Tribunal Act 1998, which I call the VCAT Act, to strike out or dismiss Ms Dowie's complaint.

At a Directions Hearing held on 18 February 2000 the Tribunal raised with the parties the fact that there are County Court proceedings on foot which relate to the allegations in this complaint and the question as to whether any stay of proceedings before this Tribunal would be appropriate.

Submissions have been made on both applications by the parties, both oral and written submissions. I have summarised what the decision of the Tribunal on these applications are and they are embodied in orders which will be sent to the parties.

The complainant has also asked the Tribunal to withdraw the leave it gave to Mr Rigoli to represent the respondents. Before dealing with these applications I need to deal with a procedural matter. At the Directions Hearing on 18 February the Tribunal made directions setting a timetable for the filing and service by the respondents of their application under s.75 of the VCAT Act and of submissions on that application. It also included in the timetable a time for written submissions by the complainant and for written submissions in reply.

The respondents' application was duly made in accordance with the timetable and was accompanied by written submissions. Ms Dowie was required to file and serve her submissions by 3 March. In fact they were filed on 9 March. Mr Rigoli for the respondents says that he didn't receive those submissions from the complainant on that date but did receive them from the Tribunal. The complainant's explanation for the late filing of submissions is first that it didn't receive the respondents' submissions until 28 February and second, pressure of work. Mr Rigoli for the respondent says that the delay prejudiced the respondents, leaving the respondents only a day in which to file their written submissions in reply. The time set according to the Tribunal's original timetable for those submissions was 10 March.

What in fact happened was that the Tribunal made further directions permitting Mr Rigoli to have further time in which to file submissions in reply. I'm satisfied in fact that there have been somewhat small delays in complying with the Tribunal's timetable, that the Tribunal's timetable was altered to take account of that fact and that none of the parties have been prejudiced because of what has happened. I take into account all the written submissions received and in addition all the oral submissions made. I point out that the Tribunal decides proceedings on their merits and with as little technicality as possible. In my view this decision follows this broad principle.

I now turn to the respondents' application under s.75 of the VCAT Act. I deal briefly with the application as it relates to the respondent company. That application should be dismissed. The Tribunal's directions of 18 February required Mr Rigoli to provide the Power of Attorney or other authority which authorised him to act on behalf of the respondents. He has provided two enduring Powers of Attorney signed by Ian Northey. One is dated 22 February 2000, the other is dated 24 August 1999. Mr Rigoli for the respondents asserts, and the complainant does not deny, that Mr Rigoli produced at the initial Compulsory Conference of 17 January 2000 that earlier Power of Attorney. Mr Northey was present via audio link at the Directions Hearing of 18 February 2000. He made it clear to the Tribunal that Mr Rigoli was his chosen advocate. I am satisfied that Mr Rigoli is

Mr Northey's chosen representative and appears with his authority.

Under s.62(7) para.a of the VCAT Act a person who is not a professional advocate, and I may summarise that term as meaning either a lawyer, a person with qualifications in law or a person with advocacy experience in proceedings of the relevant kind. So, a person who is not a professional advocate and who wishes to represent a body corporate must give the Tribunal a certificate from the body corporate authorising that representation. Mr Rigoli has not given to the Tribunal any certificate of this kind from the company. I'm not satisfied that this application is in fact made with the company's authority. Insofar as the application relates to the company I therefore dismiss it.

I now turn to the application insofar as it relates to Mr Northey. I am satisfied, as I have said, that

Mr Rigoli is authorised to represent him. In brief, this complaint alleges that in January 1999 Ms Dowie began to work with the company which was owned and managed by

Mr Northey. The company traded under the name of Allcopy Colour Printing and Copy Centre. She worked on probation for a month. She alleges that until the end of January Mr Northey made positive comments about her work performance. She alleges that in February Mr Northey made a number of comments unfavourable to Aboriginal people and that when she told him her boyfriend was an Aboriginal he asked why she was, and I quote from the complaint, "hanging around" with him. She alleges that on 8 February Mr Northey made further comments critical of Aboriginal people during a conversation in which he mentioned that her probation period was coming to an end. There was a disagreement between Ms Dowie and Mr Northey on the subject of Aboriginal people during which

Mr Northey expressed concern, so the complainant alleges, that if Ms Dowie was seen by the shop's customers during the weekend in the company of Aboriginal people he would lose half his customers. Ms Dowie alleges that

Mr Northey also told her that her job could be at risk.

Ms Dowie alleges that she went home and has not worked with the company since. The complaint includes a statement by Ms Dowie's mother setting out an alleged conversation between herself and Mr Northey after

Ms Dowie had returned from work on 8 February. Both the statement by Ms Dowie and the statement by her mother allege that Mr Northey said that he had not had Aboriginals in his shop until Ms Dowie began to work there. Ms Dowie claims discrimination on the basis of her personal association with an Aboriginal person, that is her boyfriend. She also claims that the respondents have contravened s.98 of the Equal Opportunity Act 1995. That section prohibits among other things a person from instructing, inducing or encouraging another person to contravene a provision of Part 3,5 or 6 of the Act.

Ms Dowie claims that the respondents' contravened this provision by encouraging or instructing her to discriminate against Aboriginal people who came into the shop. That is to discriminate against them on the basis of their race in the provision of the services of that business. The claims are made against Mr Northey directly and against the company as the principal or employer of Mr Northey. Section 102 then of the Equal Opportunity Act appears to be the basis for the claim against the company.

Mr Northey denies encouraging or instructing race based discrimination. He maintains that Shepparton, in which the shop is situated, is a society of many diverse races and that his shop provides services to customers irrespective of their race. He asserts that he did not terminate or threaten to terminate Ms Dowie's employment. Ms Dowie, he says, resigned voluntarily. In any event he also says that Ms Dowie would not have been kept on after her probation period because her work, personal presentation and language were unsatisfactory. He asserts that the complaint is a fabrication and is made for the sole purpose of getting money from Mr Northey. He also denies the claim of discrimination based on personal association with a person identified by race, saying that Ms Dowie's boyfriend at the relevant time was not an Aboriginal person.

The complainant disputes all these assertions. Under s.75 of the VCAT Act the Tribunal may dismiss or strike out a claim if satisfied that it's frivolous, vexatious, misconceived, lacking in substance or otherwise an abuse of process. The Tribunal in construing this provision has adopted a similar interpretation to the interpretation of s.109 of the Equal Opportunity Act 1995 and the now repealed s.44(c) of the Equal Opportunity Act 1984. See the cases of Rabel v. State Electricity Commission (1998) Vol.1 V.R. p.102 and Norman v. Australian Red Cross Society, a decision of VCAT dated 27 November 1998.

The propositions in these cases which are relevant to this application are these. This is an application to summarily terminate a proceeding. The Tribunal should be cautious before depriving a litigant of the chance to have a case heard in the ordinary course. It should only do so where satisfied that the claim is manifestly untenable or obviously hopeless either in fact or law. Here there is a clear dispute as to almost every fact in issue between the parties. These disputes can only be resolved after evidence has been given and tested through cross-examination. It is inappropriate to resolve these disputes on a summary basis such as this where evidence is not normally given. The dispute at issue should go to a full hearing.

Mr Northey also asserts that the complaint is vexatious in the sense of being fabricated and made not for the purpose of having rights and obligations under the Equal Opportunity Act determined but for a collateral and improper purpose. There is also a dispute about this issue; it too must go to a full hearing for determination. I conclude that Mr Northey's application under s.75 of the VCAT Act should be dismissed.

I now deal with the question as to whether the hearing of this complaint should be stayed until the disposition of the County Court proceeding. On the material I am satisfied that in September 1999, that is after the lodgement of this complaint but before its referral to VCAT, Ian Northey and his wife Jenny Northey and the company issued a writ in the County Court naming as defendant Ms Dowie and claiming defamation in the form of libel and seeking aggravated and exemplary damages for damage to character and personal and professional reputation. The statement alleged to constitute the defamation is Ms Dowie's statement of complaint to the Equal Opportunity Commission. That is the same complaint which the Equal Opportunity Commission has referred to this Tribunal. It is that referral which invokes this Tribunal's jurisdiction.

It is submitted for Ms Dowie that this Tribunal should not stay the hearing of this complaint until the County Court proceeding is disposed of because the County Court proceeding, it is said, is manifestly untenable and there's no reasonable cause of action. It is said that the statement of complaint attracts absolute privilege either because it is a complaint to a statutory body or because it is a document filed with a statutory body or because it is a document which constitutes the initiating process in a quasi-judicial Tribunal or because it is an essential step in an investigative of quasi-judicial process of a statutory body. Reliance is also placed on what was said to have been the protection given to people who lodge complaints by s.211 of the Equal Opportunity Act. The reference should have been to s.210 which in fact gives that protection, but the extent of that protection is a matter of interpretation. The section relevantly provides: "If (a) a complaint has been lodged a person is not personally liable for any loss, damage or injury suffered by another person by reason only of the lodging of the complaint." There is also the immunity which a party before VCAT has under s.143(3) of the VCAT Act.

The position as to applications to stay proceedings before this Tribunal is broadly the position that I'm about to set out. This relates to the position where the stay is required because another civil proceeding is on foot. As to this see the cases of Minks v. Toral Pty. Limited & Anor., a decision of VCAT dated 28 July 1999. Schwerin v. City of Sale, a decision of the Anti-Discrimination Tribunal dated 12 June 1997 and Philippine Airlines v. Goldair (1990) V.R. p.385.

In my view VCAT has power to stay proceedings. This power is given by a combination of various sections. There is s.80 which is the power, among other things, to do whatever is necessary to facilitate the fair hearing of proceedings. There is the Tribunal's obligation under s.97 to act fairly. There is the Tribunal's power to regulate its own procedure under s.98(3). The principles that ought to be applied in relation to stays are the principles, in my view, which courts apply in the same circumstances.

Those principles are these, applying them to these proceedings. Prima facie a complainant is entitled to have his or her complaint heard in the ordinary course of the procedure and business of the Tribunal. It is a grave matter to interfere with this entitlement by a stay of proceedings which must be justified on proper grounds. The respondent, or the person who seeks the stay, needs to show that it is just and convenient that the complainant's ordinary right should be interfered with. The Tribunal's task is to balance justice between the parties having regard to all relevant factors. Each case must be judged according to its own circumstances. The effect of the stay on both complainant and respondent must be weighed. In appropriate cases proceedings may be allowed to proceed to a certain stage and then stayed.

I am not willing, when I consider the application for this stay, to consider the merits of the County Court proceeding. That consideration, it seems to me, is properly the role of the County Court, not this Tribunal. I note that Ms Dowie would be able to seek before the County Court either the striking out of the current action or the early hearing of the current action. I note that no such application has been made at this time. The current status of the County Court proceeding is that the writ, as I have said, was issued in September, that the defence has been filed and that the court is to hold a Directions Hearing in relation to the matter in June.

Ms Dowie's complaint is the subject of the proceeding before this Tribunal and the proceeding before the County Court, although the causes of action are different. Before the Tribunal the facts in issue are in dispute and there is an allegation that the complaint is fabricated. Therefore, the credit of the complainant and probably of Mr Northey will play a major role in the Tribunal's findings in relation to the complaint. If the Tribunal hears this matter before the County Court hears the defamation action there may be a danger of conflicting findings as to credit in relation to the Tribunal and the court. There also may be a danger that the later hearing of the County Court action will be prejudiced because of the findings as to credit which the Tribunal might make and because of the publicity which these findings will or might attract.

After balancing the complainant's entitlement to have the complaint heard in the ordinary course and the interests of justice involved, and taking into account the matters I've mentioned, I consider it appropriate to stay the hearing of this complaint until the County Court proceeding is disposed of, whether this occurs by hearing or in another way. However, I can see no reason why all the other procedural steps before this Tribunal should not be completed in the ordinary course so that the matter can be ready to go on for hearing as soon as the County Court proceeding is disposed of. The Tribunal could then be asked to give the hearing of this matter priority.

I should also add that I have considered whether all the factors I have mentioned would be outweighed by any disadvantage to the complainant caused by the delay in hearing. I have taken into account that an early hearing in the County Court could be requested and priority before this Tribunal could also be requested when the matter is disposed of. I have decided that the disadvantage to the complainant does not outweigh the other factors I have mentioned.

I therefore conclude that the hearing of the complaint is stayed but the other procedural steps will take place.

Ms Downie now asks the Tribunal to withdraw leave given to Mr Rigoli to represent the respondents. On the basis that the leave given by the Tribunal to Mr Rigoli to represent the company depended on his providing a certificate from the company authorising that representation and that that certificate was not provided, I withdraw the leave given to him to represent the company before this Tribunal.

Ms Downie's application for the Tribunal to withdraw leave given to Mr Rigoli to represent Mr Northey was based on what the complainant says is the unreasonable way in which Mr Rigoli has conducted this proceeding. It is argued from Ms Dowie that Mr Rigoli has misled the Tribunal as to the existence of a Power of Attorney from Mr Northey and the company in favour of

Mr Rigoli that this misleading of the Tribunal occurred knowingly, that Mr Rigoli treated the Tribunal with disrespect and failed to recognise its authority, that

Mr Rigoli has made unprovoked and unjustified attacks on the integrity and honesty of Ms Dowie and her solicitor, and that he has behaved unprofessionally.

It is true that at the Directions Hearing on 18 February 2000 Mr Rigoli interrupted the Tribunal on a number of occasions and made unjustified criticism of

Ms Dowie's solicitor. It is also true that in some of his letters to the Tribunal he criticises the Tribunal for what he alleges is its partiality and indicates an unwillingness to comply with its directions.

Against these considerations I must balance others. First, I do not accept the submission made on behalf of Ms Dowie that Mr Rigoli has knowingly misled the Tribunal as to the existence of Powers of Attorney given to him by the respondents. I accept Mr Rigoli's explanation that he filed a Power of Attorney signed by Mr Northey and dated 22 February 2000 because he couldn't find the earlier one that had been given to him, that he had shown that earlier Power of Attorney to the Tribunal at its initial Compulsory Conference on 17 January and that as soon as he found the earlier Power of Attorney he provided it to the Tribunal.

I am satisfied that to Mr Rigoli, who is not a lawyer, there is no distinction between a Power of Attorney from Mr Northey, who he considers the owner of the photocopying business, and from the company.

Secondly, although Mr Rigoli's behaviour during the earlier part of this proceeding has involved unjustified criticism of the complainant's solicitor and the Tribunal, his behaviour during oral submissions on the application had markedly improved.

Thirdly, I am satisfied that Mr Rigoli has been chosen by Mr Northey as his advocate. There is a medical certificate in the material before me which suggests that Mr Northey has a long-standing condition, the symptoms of which are depression and anxiety. In these circumstances he may need an advocate. It is a grave matter, given these factors, for me to deprive him of his chosen advocate.

On balance I have decided to make the continued leave, which I give to Mr Rigoli to represent Mr Northey, conditional on his maintaining proper standards of behaviour towards the complainant's solicitor and the Tribunal.

Ms Dowie has applied for costs. I have reserved my decision in relation to costs and I have, in my order, set out a timetable for written submissions on this matter. I have, as I have said, also set out a timetable for the further procedural steps prior to this matter coming on for hearing.

Finally, I have given parties liberty to apply so that, for example, if any variation to these timetables is needed a relevant application can be made.

That concludes my reasons for decision. As I said, I'll obtain transcript and send a copy to the parties together with the orders. Thank you very much.

Civil and Administrative Tribunal Act 1998

Opportunity Act 1995

Opportunity Act 1984

Dowie v Northey & Anor [2000] VCAT 823

At a glance

Court

Decision date

Source

Judgment (54 paragraphs)

Dowie v Northey & Anor [2000] VCAT 823 (30 April 2000)

Parties

Legislation Cited (4)