although Telstra conducted the course and at the completion [Mr Drummond] would be working for [Telstra].

1. Mr Drummond attended Kellys premises at 459 Collins Street, Melbourne, on 21 September completing a number of forms to commence his training course on 24 September at the call centre at 301 Burwood Highway, Burwood.
2. There were 12 in Mr Drummond's class. Their teacher and facilitator was a Telstra employee, Ms Nicole Hicks. After a few days Mr Drummond was introduced to the proposed sales team leader, Ms Marie Dematis. Mr Drummond elected to sit on the far left of the whiteboard. He says however that Ms Hicks directed him to sit next to her desk 'which was to the right of the board'. Next to him was another trainee named Andrew who according to Mr Drummond failed to complete the course and was terminated.
3. On 3 October, Mr Drummond says he was the victim of an assault at Burwood Railway Station late at night. He was treated at the Alfred Hospital and furnished with a medical certificate declaring him unfit for work for seven days. Nevertheless, Mr Drummond says he resumed work on 4 October 2007 arriving late at 9.30 am. He said Ms Hicks reported to Kellys that he had arrived late but said nothing as to his having been injured. On Friday 12 October, Mr Drummond said he had successfully completed his module for the week.
4. On Thursday 11 October he had been late for work. He tried to send a message to Ms Hicks but her mobile phone was off and he therefore left a message. The problem was, he said, that he had been caught in a traffic jam at Camberwell Junction caused by a car accident.
5. In paragraph 19 of his particulars of complaint, Mr Drummond said:

During the afternoon of Thursday the 11 October 2008 the complainant received a mobile telephone call from Kellys. During the afternoon tea break the complainant telephoned Kellys and spoke to Angela Spalato. The complainant requested details and documentary proof of the complaint and the basis of the complaint to which Angela stated that the complainant would be contacted later with the details and the person or persons who were raising these issues about the complainant's performance.

1. Mr Drummond refers to himself in the document frequently in the third person as 'the complainant'. The paragraph is somewhat unclear. I take it mean that Mr Drummond returned a telephone call to Ms Angela Spalato of Kellys who told him that he was respondent to some type of complaint. He asked for details and was assured that they would be provided.
2. The following day Mr Drummond left the call centre to go to the toilet to re-arrange the surgical tape wrapped around his left knee 'that was too tight and was affecting the blood flow in his left leg'. He passed Ms Dematis both going and returning.
3. Mr Drummond was summoned to a conference with Ms Katherine Bishop of Kelly Services. The discussion centred around a document on Kelly Services letterhead marked 'confidential' and styled 'Performance Improvement Plan'. The 'performance issues' identified were as follows:

Not following instructions eg activity, learning modules.

Negative attitude - blame excuse, went missing off the floor

1. The last issue had a side note added 'this has improved since speaking with Nicole'.
2. Under the heading 'describe any training/instruction previously provided in respect of identified performance' the following appeared:

Verbal discussion of concerns with Angela Spalato (Kelly Services) on Thursday 11th October.

1. At Part 4 of the document headed 'Performance barriers or explanations offered by employee':

John disagreed with statements, felt group activities were 'crap'. It's just Telstra's perception of him.

1. The form then had a note subscribed at the foot:

Did not continue beyond this point - John elected to resign.

1. Later parts of the document which presumably had been completed by Ms Bishop before the conference began set out a time frame allowed for performance 'immediate' and stated 'possible future consequences discussed', 'termination of assignment'. An annexure presumably in Ms Bishop's handwriting stated as follows:

Met with John, spoke to him about the concerns that had been raised.

Told him I was giving him an opportunity to respond and that we would go through the process to move forward. John said 'maybe I should just leave'. I advised that it was his choice - we could go through the process or he could resign.

He asked for 10 minutes to think about it. When we met again he advised he would resign. 'If it's not working you move on - I've been married twice before so I know.'

Called later in the day to say that Telstra had requested from doctor to say he was fit for work as long as he could get up for breaks. Felt that he hadn't done anything wrong in this regard. I advised that if Telstra did not know where he was - effectively he was 'missing' and that was the concern.

1. On 28 March 2008 Mr Drummond lodged a complaint with the Victorian Equal Opportunity and Human Rights Commission alleging discrimination on the basis of race and age in the area of employment (contract work) under the Equal Opportunity Act 1995. The Commission advised by letter dated 22 May 2008 that the Commission had elected to decline to entertain the complaint. Four days later Mr Drummond required the matter to be referred to the Tribunal for hearing.
2. A mediation organised by the Tribunal was unsuccessful. In accordance with directions from the Tribunal, Mr Drummond filed particulars of complaint on 18 September 2008.
3. Telstra has applied under Section 75 of the Victorian Civil and Administrative Tribunal Act 1998 for the summary dismissal of Mr Drummond's complaint against it.

THE EQUAL OPPORTUNITY ACT 1995.

1. Section 15 of the Equal Opportunity Act 1995 prohibits discrimination against contract workers such as Mr Drummond was or aspired to be. The section provides as follows:
   1. Discrimination against contract workers

(1) A principal must not discriminate against a contract worker -

(a) in the terms on which the principal allows the contract worker to work;

(b) by not allowing the contract worker to work or continue to work;

(c) by denying or limiting access by the contract worker to any benefit connected with the work;

(d) by subjecting the contract worker to any other detriment.

(2) Subsection (1) does not apply to anything done or omitted to be done by a principal in relation to a contract worker that would not contravene this Act if done or omitted to be done by the employer of that contract worker.

contract worker means a person who does work for a principal under a contract between the person's employer and the principal;

principal means a person who contracts with another person for work to be done by employees of the other person.

1. Section 8 of the Act defines direct discrimination in the following terms:
   1. Direct discrimination

(1) Direct discrimination occurs if a person treats, or proposes to treat, someone with an attribute less favourably than the person treats or would treat someone without that attribute, or with a different attribute, in the same or similar circumstances.

(2) In determining whether a person directly discriminates it is irrelevant -

(a) whether or not that person is aware of the discrimination or considers the treatment less favourable;

(b) whether or not the attribute is the only or dominant reason for the treatment, as long as it is a substantial reason.

1. Section 9 of the Act defines indirect discrimination as follows:
   1. Indirect discrimination

(1) Indirect discrimination occurs if a person imposes, or proposes to impose, a requirement, condition or practice -

(a) that someone with an attribute does not or cannot comply with; and

(b) that a higher proportion of people without that attribute, or with a different attribute, do or can comply with; and

(2) Whether a requirement, condition or practice is reasonable depends on all the relevant circumstances of the case, including -

(a) the consequences of failing to comply with the requirement, condition or practice;

(b) the cost of alternative requirements, conditions or practices;

(c) the financial circumstances of the person imposing, or proposing to impose, the requirement, condition or practice.

(3) In determining whether a person indirectly discriminates it is irrelevant whether or not that person is aware of the discrimination.

1. Section 10 provides that where a person discriminates 'the person's motive is irrelevant'.
2. Included amongst the attributes on the basis of which according to Section 6 discrimination is prohibited are:

SECTION 75 OF THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL ACT 1998

1. Section 75 of the Victorian Civil and Administrative Tribunal Act 1998 authorises the Tribunal summarily to dismiss an application which is frivolous, vexatious, lacking in substance or otherwise an abuse of process. The section provides as follows:
   1. Summary dismissal of unjustified proceedings

(1) 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 -

(a) is frivolous, vexatious, misconceived or lacking in substance; or

(2) If the Tribunal makes an order under subsection (1), it may order the applicant to pay any other party an amount to compensate that party for any costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding.

(3) The Tribunal's power to make an order under subsection (1) or (2) is exercisable by -

(a) the Tribunal as constituted for the proceeding; or

(4) An order under subsection (1) or (2) may be made on the application of a party or on the Tribunal's own initiative.

(5) For the purposes of this Act, the question whether or not an application is frivolous, vexatious, misconceived or lacking in substance or is otherwise an abuse of process is a question of law.

1. Mr Drummond's particulars of complaint recited the history referred to above. He said that when confronted with the Performance Improvement Plan he told Ms Bishop that 'she was going through the plan as an excuse to get rid of [him] from Telstra'. He denied allegations that he was 'not blending with the team'. According to Mr Drummond he was:

Desperate to complete the course and be in full time employment as he is a single father of two young children.

Because of his age he is not blending in with the sales group whose average age was younger.

1. Mr Drummond says he asserted his age was 'irrelevant to his ability to perform in a sales team'.
2. According to Mr Drummond he was one of only two Australians in the 12 member group of trainees which he said consisted of people

From Greece, Philippines, Somalia, New Zealand, Japan and India and other Asian/African countries. 83 percent of the group were from overseas.

1. He said that 91 percent of the group was younger than the complainant. Two were under 20, eight were under 30 and one was under 40. Mr Drummond was the oldest member. He said:

Nicole Hicks formed the view that because of the complainants (sic) age and different cultural background combined with the injuries sustained on 3 October suggested that he not continue or finish training, upon the complainant refusing to supposedly postpone the training to the next available course she then created some fiction the particulars contained in the performance plan.

thought that the workers from overseas countries were less likely to question any work practices as they felt intimidated and did not want to do or say anything that would jeopardise their employment. The worker from New Zealand had been in Australia for two weeks only. In contrast [Mr Drummond] being Australian by nature would speak up and did not feel intimidated in the workplace.

According to Mr Drummond this constituted direct discrimination.

1. According to Mr Drummond, Ms Hicks absented herself on private business including purchasing a new car and seeking positions with Vodafone or some other competitor company. He continued:

The fact that [Mr Drummond] knew Nicole's private activities supports the contention that [Mr Drummond's] age and background were used as the real reason for making up baseless allegations against the complainant. They [presumably Ms Hicks and Ms Dematos] did not wish Telstra to become aware of her [presumably Ms Hicks'] plans.

RESPONDENT'S SUBMISSIONS IN SUPPORT OF SUMMARY DISMISSAL APPLICATION

1. Mr Dalton of Counsel appeared on behalf of Telstra. He submitted that there was no discrimination disclosed by the applicant's particulars as set out in Section 15 of the Equal Opportunity Act. According to Mr Dalton:

At its highest, the complainant's case is that the Respondent raised concerns with Kelly about the complainant's performance that he would not believe or justify it. But there is no allegation that the respondent (as opposed to Kelly) subjected the complainant to any detriment.

1. According to Mr Dalton the detriment alleged by Mr Drummond was that he was required to participate in the Performance Improvement Plan meeting. He said this meeting was conducted by Kelly. He continued even if this could be attributed as an act of Telstra:

It did not amount to a 'detriment', especially in the circumstances where [Mr Drummond] resigned during that meeting.

1. He said that for there to be a detriment established for the purposes of a discrimination allegation, a disadvantage must be demonstrated and it must be one of substance assessed objectively. He referred to O'Callaghan v Loder [1983] 3 NSWLR 89, 105 and Damiano v Wilkinson [2004] FMCA 891 at [23]. According to Mr Dalton, any detriment that may have arisen:

was instantaneously supervened by [Mr Drummond's] decision to resign in that meeting.

Has no reasonable prospects of establishing that speaking up and not feeling intimidated are characteristics generally imputed to persons of [Mr Drummond's] race or nationality.

1. Nor he said does Mr Drummond have any prospect of establishing that:

Being less inclined to speak up and feeling intimidated' are characteristics generally imputed to persons of a race or a nationality other than [Mr Drummond].

1. Similarly he said these characteristics could not be established as characteristics generally imputed to persons of Mr Drummond's age nor could the opposite characteristics be generally imputed to younger persons.
2. He submitted that whilst Mr Drummond disagreed with a number of things that we put to him at the conference:

He has produced no particulars that tend to support that [Telstra] raised such concerns with [Mr Drummond's] employer as part of a civil conspiracy to get rid of him on the basis of his age.

1. Mr Dalton noted that in his particulars of complaint he said Ms Hicks 'suggested' that because of Mr Drummond's age he was not blending in with the younger sales group. Mr Dalton continued:

This use of the word 'suggested' is unsatisfactory. It indicates that [Mr Drummond's] extrapolations and assumptions about Ms Hicks' intentions as opposed to what Ms Hicks actually said to him.

1. Finally Mr Dalton submitted that the allegations made said to constitute indirect discrimination showed that this part of the case was clearly misconceived.

1. Mr Drummond's submission commenced with a series of objections to the form of the submissions filed on behalf of Telstra and spoken to by Mr Dalton at the hearing. He submitted that insofar as Mr Dalton's written submissions opened with what he said was a chronological survey of the facts, they were not submissions and should be rejected. He also complained of a lack of a signature, noting:

Every pleading must be signed by Counsel, if it has been settled by him, and if not, it must be signed by the solicitor for the party or by the party themselves ...

1. He was critical of what he said was defamatory material in the respondent's submissions such as 'this allegation is hopeless' and 'this claim is also hopeless' and 'is wholly misconceived'.
2. Next, Mr Drummond referred to authorities from the Supreme Court and the High Court of Australia showing that the power to dismiss a claim summarily should be used with the utmost of care and only in the clearest of circumstances. He said the hurdle to overcome under Section 75 is very high. Referring to Wood v Calliden Insurance Limited [2008] VCAT 1339.
3. Mr Drummond was critical of the failure of Telstra to put on any affidavit material dealing with the substance of his allegations. He noted the only affidavit filed which produced the record of Mr Drummond's interview with Ms Bishop was sworn by a person who had no personal involvement in the affair. Mr Drummond said:

No person from the respondent is prepared to swear on oath; why it is fearful of the consequences of cross-examination at the hearing stage. The Tribunal is being requested to dismiss the complainant's claim without any real or meaningful documentary from the respondent.

1. He submitted an adverse inference should be drawn against the respondent.
2. Mr Drummond said it was inappropriate as he said the respondent's submissions attempted to conduct a pre-trial assessment of Mr Drummond's evidence to determine whether he could prove his case. Mr Drummond said that Judge Harbison had made orders on 24 July 2008 requiring Telstra to produce certain documents. He noted that despite this order, Telstra had advised it was unable to find the attendance register for the team of which Mr Drummond was a member at the relevant time. He submitted an adverse inference should be drawn from Telstra's inability to provide this crucial evidence. This failure to produce the document showed bad faith on Telstra's part. Mr Drummond then referred to the equitable maxims that he who seeks equity must do equity and that one must come to equity with clean hands. Whilst he does not say so, it seems that Mr Drummond's submission on this point is based on the view that a summary dismissal under Section 75 of the Victorian Civil and Administrative Tribunal Act would be a piece of equitable relief.
3. The worth of Mr Drummond's case could not he said be judged until all the evidence was produced and at any rate with the absence of the attendance register his case was incomplete.
4. Mr Drummond was critical of threats which had been made to him about adverse costs orders. He said:

The application is a cost raising exercise by the respondent's solicitors ...

The costs involved in this vindictive and malicious exercise is to totally cripple the applicant financially.

1. He referred to pronouncements from the Tribunal that it in general and the Anti-Discrimination List in particular, are generally no cost jurisdictions.
2. If allowed to go to trial, Mr Drummond said he wanted to call the following persons as witnesses:

Until all necessary enquiries are made and relevant documents disclosed the complainants (sic) case is not ready for hearing and is therefore incomplete.

Norman v Australian Red Cross Society (1998) 14 VAR 243

The s.75 application is contrary to, or incompatible with provisions of the Charter of Human Rights and Responsibilities Act 2006. ... the following sections form the basis of this submission Section 15 Freedom of Expression, Section 24 Fair Hearing, Section 32 Interpretation, Section 38 Conduct of Public Authorities and Section 9 Legal Proceedings.

1. He said Section 75 diminishes if not extinguishes the complainant's rights to a fair hearing. He submitted that there was a total inequality between the parties. Telstra was 'represented by a high powered legal firm', he was unrepresented. He continued:

This imbalance of representation breaches the concept of a fair hearing stated in Section 24 of the Charter.

APPROACH TO APPLICATIONS UNDER SECTION 75 OF THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL ACT

1. Section 75 of the Victorian Civil and Administrative Tribunal Act is the equivalent in the Tribunal of the powers of summary dismissal possessed by the Supreme and County Courts under Order 23 of their Rules. This power of summary dismissal is of long-standing in the legal system and has been considered on many occasions by courts of the highest authority. These statements of principle apply in the Tribunal. The operation of those principles in the context of the Tribunal was considered at length by Deputy President McKenzie in Norman v Australian Red Cross Society (1998) 14 VAR 243. Without going to the detail of Norman's case and the underlying authorities from the Supreme Court and the High Court, it is well established that a summary dismissal should be made only in the clearest of cases. No summary dismissal should be made in circumstances where the success or otherwise of the relevant claim depends upon disputed evidence. The resolution of evidentiary disputes is within the province of a trial procedure not a procedure for summary dismissal. The most typical example where a summary dismissal is appropriate is where assuming everything alleged by the plaintiff complainant or applicant is true, the proof of those matters would not as a matter of law give an entitlement to relief. As Deputy President McKenzie notes in Norman's case where the whole of a complainant's evidentiary material is before the Tribunal, a determination can be made as to whether that evidence makes out a case for relief; however where the whole of a complainant's evidence is not before the Tribunal one cannot conclude that the complainant's case is lacking in substance.
2. Informed by these principles I turn to the various elements of Mr Drummond's claim.

1. Mr Drummond's particulars of complaint do not identify what 'requirement, condition or practice' Telstra allegedly sought to impose upon Mr Drummond. The imposition of such a requirement, condition or practice that is more difficult for the possessor of a particular attribute to comply with is indirect discrimination, if the imposition is unreasonable. None of these matters are gone into in the particulars of complaint. I note that there appears to be no allegation of indirect discrimination in the statement of complaint which Mr Drummond lodged with the Victorian Equal Opportunity and Human Rights Commission. The allegation of indirect discrimination is an afterthought. It is misconceived. It cannot succeed, hence it is appropriate to affect a summary dismissal of that element of Mr Drummond's complaint.

1. I have not set out the full list of attributes enumerated in the Equal Opportunity Act, suffice to say that every person possesses some attributes as defined in the Act. Most people in one form or another possess most of the attributes. It is a frequent experience in this List that people who feel they have been unjustly dealt with whether in employment or other contexts identify what they see as unfair treatment and their possession of one or more attributes leaping to the allegation then that they have been the victims of direct discrimination.
2. If this mode of argument were acceptable every instance of unfair dismissal for instance would also be an instance of direct discrimination because every unjustly or allegedly unjustly dismissed employee possesses certain attributes. Logically no complaint of direct discrimination can be proven or be other than frivolous and lacking in substance, unless, to use the words of Section 8(2)(b) of the Act, the attribute is a 'substantial reason' for the detrimental treatment.
3. Here, the only evidence that what Mr Drummond alleges is detrimental or less favourable treatment of him had as a substantial reason for it, his status as an Australian is his identification of the ethnic diversity of the class of 12 of which he was a member. Every member of that class had some ethnic status and was a less favourable member of a particular race. If an Asian member of the group had been subjected to treatment, then he or she was the victim of racial discrimination according to Mr Drummond's reasoning.
4. During the course of the argument Mr Drummond asked rhetorically 'why is it that only Asian women are involved in cleaning up the rubbish at Caulfield Racecourse?' I asked him what his explanation for this phenomenon was. He said it was because 'Australian's don't like doing shitty jobs'. That response of course encapsulates a potential explanation for the ethnic make-up of the class of 12, namely that call centre employment is not particularly popular and recent arrivals in Australia who have to 'start at the bottom' are disproportionately represented amongst applicants to the substantial exclusion of native Australians. This is of course all speculative. The problem is that in identifying the ethnic make-up of his class, Mr Drummond can do no more than invite the Tribunal to engage in speculation. There is no substantive proof of any type that Mr Drummond was singled out for less favourable treatment by Telstra or by Kellys by reason of his race. Mr Dalton on behalf of Telstra was prepared to concede for the sake of the argument that reference to the missing attendance register would show the allegations against Mr Drummond to have been unfounded. A supervisor may treat an employee or a contract worker unfairly for a variety of reasons none of which may have anything to do with discrimination. For instance, the supervisor may simply be too lazy or too hasty to give proper consideration to a reasonable excuse or exculpation advanced by the employee. The supervisor may have been irritated or annoyed by some extraneous issue in his or her personal life. A supervisor may act without proper regard to appropriate process in disciplining or dismissing an employee because of a desire to save money or trouble either for himself/herself or a corporate employer. Again, this might be unfair but it is not discrimination.
5. Mr Drummond has stated an intention to call a variety of witnesses all of whom are one might think in the Telstra camp. I told him that if he called these individuals as witnesses he would have to accept their evidence. He would not be able for instance to say 'I put it to you that that is a lie'. He replied rather airily that he would have them declared hostile witnesses. The fact is that Mr Drummond has no idea what any of these people would say. The chances that they would give to non-leading questions answers implicating themselves in unlawful discrimination seems to be fairly remote. Moreover, there is nothing in the material placed before me which suggests there is the slightest likelihood that such evidence would be forthcoming assuming that they answered Mr Drummond's questions with utmost candour. It may well be that a full scale hearing of this proceeding would demonstrate that Mr Drummond has been unfairly treated; but that in itself is not enough to make out a case for racial discrimination.
6. There is no substance in the allegation of racial discrimination hence it is lacking in substance and is appropriate for summary dismissal.

1. The situation with respect to age discrimination is different however. In his particulars of complaint Mr Drummond states:

Nicole suggested that he [that is Mr Drummond] would not blend in with the team because he did not appreciate the questions during the Quiz, to which [Mr Drummond] replied this allegation had no basis as he was on top or second top team up until the injuries sustained on 3 October 2008 ... Nicole suggested that because of his age that he was not blending in with the sales group whose average age was younger.

1. Mr Dalton said that by referring to Ms Hicks as having 'suggested' these things, Mr Drummond indicated that he was not recording what she told him but rather extrapolating what he thought she believed. Mr Dalton may well be correct on this point. In accordance with the principles described above however, it would be wrong to effect a summary dismissal on the basis merely of what was probably correct. This is a matter to be elucidated by cross-examination at trial.
2. Merely to show however some link between Mr Drummond's age and the manner in which he was treated without more would not make out a claim for direct discrimination. Mr Dalton it will be recalled submitted that upon the material placed before me no detriment had been shown. Mr Dalton relied upon a decision of Mathews DCJ sitting in the Equal Opportunity Tribunal of New South Wales in O'Callaghan v Loder [1983] 3 NSWLR 89, 105 where having reviewed the authorities, the learned Judge stated that the word 'detriment' in anti-discrimination legislation should be seen as:

Requiring that a complainant has been placed under a disadvantage in comparison with employees of the opposite sex.

The disadvantage must be a matter of substance; the legislation is not directed to trivial distinctions in the treatment afforded to men and women. Subject to that, it is difficult to define the limits of a concept which is, as Brandon LJ said, essentially a matter of fact to be determined in each individual case.

1. This approach was adopted by Federal Magistrate Baumann in Damiano v Wilkinson [2004] FMCA 891. I am content to accept that as a proper formulation of what is required to demonstrate direct discrimination. I note that Section 8(1) uses slightly different language, speaking of discrimination occurring when a person was treated 'less favourably'. I accept however that whether one uses the word detriment or refers to less favourable treatment what is necessary to be shown is something of substance rather than something which is merely trivial. Mr Dalton conceded that in the industrial jurisdiction of the Federal Court it has been accepted that the administration of a formal warning to an employee does constitute a detriment because it is a 'black mark' on his record, the equivalent of an accrued demerit point. Here as I understood Mr Dalton's submission, since Mr Drummond resigned forthwith, the question of whether there was a 'black mark' on his record either with Telstra or Kellys was irrelevant once he ceased to be an employee. I reject that submission.
2. The interview in which Mr Drummond participated was by its very nature painful and humiliating. In making that finding I am not to be taken as finding that Ms Bishop or anybody else proceeded in a way that was unfair or unjustified. Whatever the fairness or justification for what she did was, the interview by its nature was painful and humiliating. I am prepared to infer that as a result of this process if Mr Drummond were to seek employment from Telstra in the future, he would have a black mark against him. Even in the absence of that consideration I regard the experience of the interview as sufficiently unpleasant to be regarded as a detriment of substance or as some form of less favourable treatment. Assuming that it can be linked as having his possession of his age attribute as a substantial reason for it, it might constitute age discrimination.
3. Mr Dalton also questioned how any detriment or unfavourable treatment to which Mr Drummond might have been subject could have been regarded as caused by Telstra. The allegation apparently reflecting on Mr Drummond's age is put by him in the mouth of Ms Hicks, a Telstra employee. Moreover as I understood it, at the hearing it was accepted by Mr Dalton that the process that led to the interview with Ms Bishop was set in motion by a Telstra employee who made complaint to Kellys.
4. The application under Section 75 for summary dismissal of the allegation of direct discrimination on age grounds is therefore unsuccessful.

1. Mr Drummond's submission as I understand it is that the very concept of a provision for summary dismissal is inconsistent with the assurance of a fair hearing to parties to civil proceedings given by Section 24 of the Charter of Human Rights and Responsibilities Act 2006. That section provides:
   1. Fair hearing

(1) A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

(2) Despite subsection (1), a court or tribunal may exclude members of media organisations or other persons or the general public from all or part of a hearing if permitted to do so by a law other than this Charter.

For example, section 19 of the Supreme Court Act 1986 sets out the circumstances in which the Supreme Court may close all or part of a proceeding to the public. See also section 80AA of the County Court Act 1958 and section 126 of the Magistrates' Court Act 1989.

(3) All judgments or decisions made by a court or tribunal in a criminal or civil proceeding must be made public unless the best interests of a child otherwise requires or a law other than this Charter otherwise permits.

1. In their work 'An Annotated Guide to the Victorian Charter of Human Rights and Responsibilities'(2008)' Mr Pound and Ms Evans say of the right to a fair hearing:

The right provides protection only against procedural bars or restrictions and not against the operation of substantive rules of law ... It would not, for example, affect the summary dismissal of proceedings where they are found not to disclose a cause of action or to be frivolous or vexatious or otherwise an abuse of process.

1. Section 32 of the Charter requires us to construe Victorian legislation in a manner which is consistent with the terms of the Charter. In my view no Charter issue is properly engaged. The effect of Section 32 of the Charter is I think to apply the principle that no summary dismissal of a proceeding should be made other than in the clearest case with even greater rigour than otherwise might be.
2. Mr Drummond made reference to Section 32 of the Charter. In my view it has the operation which I have just described and hence again no Charter right is engaged. Mr Drummond also made reference to Section 15 of the Charter - Freedom of Expression; Section 38 - Conduct of Public Authorities and Section 39 - Legal Proceedings. It is not clear to me how the freedom of expression right is engaged. The other sections referred to appear in one way or another to turn upon whether the conduct of a public authority is involved. The definition of public authority in the Charter is to be found in Section 4. Without rehearsing the detail of that definition I do not believe that a company limited by shares carrying on a commercial business as Telstra does is to be regarded as a public authority for the purposes of the Charter, hence these other provisions have no application.
3. Nor in my view does the fact that Mr Drummond is unrepresented and Telstra is represented by a large law firm and Counsel in itself deprive him of the fair trial that Section 24 of the Charter guarantees. Section 24 of the Charter guarantees a fair hearing to a party to a civil proceeding. Section 25 gives certain rights in criminal proceedings to persons charged with criminal offences amongst those certain specific rights to legal aid referred to in Section 25(2)(d) and (2)(f). This indicates that whilst the Charter has certain guarantees with respect to legal aid, those guarantees extend only to criminal proceedings and not to civil proceedings. More generally in Ogawa v University of Melbourne [2005] VCAT 197; (2005) 22 VAR 344, Morris J then President of the Tribunal considered that the nature of Tribunal proceedings did not necessitate the provision of legal representation for a proceeding in the Tribunal despite the fact that the respondent to the proceeding was a large organisation represented by Counsel and a national law firm. The allegation therefore that the representation of the respondent by a large law firm and Counsel and the applicant's having to represent himself in themselves infringed the Charter must be rejected.

1. I have heard no submissions on the question of costs and so I will reserve them.