MEDIUM NEUTRAL CITATION: [2003] VCAT 377

Pursuant to sections 75, 80, 88, 89 and 109 of the Victorian Civil and Administrative Tribunal Act 1998 ('the VCAT Act') this Tribunal orders and directs-

1. That the Respondents' application under section 75 of the VCAT Act is dismissed.

2. That the parties costs in relation to the application are reserved. The parties may apply for those costs on reasonable notice to the Tribunal and each other.

3. The Complainant is to file with the Tribunal and serve on the Respondents amended Particulars of Complaint on or before 6 March 2003. Those particulars must address the following-

(A) the nature and extent of the impairment claimed by the Complainant.

(B) details of how the Respondents' alleged conduct was based substantially on that impairment;

(C) details of the nature of the comparator for the purposes of the Complainant's direct discrimination claim;

(D) details of the loss suffered by the Complainant and particulars of how that loss is alleged to have been suffered in consequence of the Respondents' alleged conduct.

4. The Respondents is to file with the Tribunal and serve on the Complainant particulars of defence on or before 27 March 2003.

5. This matter is listed for mediation at 55 King Street, Melbourne at 10:00 a.m. on a date to be fixed by the Principal Registrar between 28 March and 9 April 2003 (inclusive) and to be notified to the parties by the Registry. The Registry will advise the parties of suitable dates for mediation during that period and the parties will advise the Registry which of those dates are suitable for them. The Complainant and Respondents must attend in person. The legal representatives of the parties may attend.

6. The Complainant is to file with the Tribunal and serve on the Respondents witness statements on or before 10 April 2003.

7. The Respondents are to file with the Tribunal and serve on the Complainant witness statements on or before 29 April 2003.

8. The Complainant is to file and serve any material in reply on or before 6 May 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.

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

[1] I reserved my decision. I am now in a position to hand it down, and it is that this application by the Respondents is dismissed. I, however, propose to order further Particulars of Complaint be filed and served, and the nature of those orders will appear from the Reasons.

[3] On 13 May 2002, Mr Evans lodged with the Equal Opportunity Commission ("the Commission") a Complaint of impairment discrimination under the Equal Opportunity Act 1995 ("the Equal Opportunity Act"). The Complaint was lodged against six named councillors of the Brimbank City Council. The Commission declined the Complaint under s.108(1)A of the Equal Opportunity Act.

[4] That provision permits it to decline a Complaint which it considers frivolous, vexatious, misconceived or lacking in substance. Under the Equal Opportunity Act, Mr Evans then required the Commission to refer the Complaint to Victorian Civil and Administrative Tribunal. The Commission did so.

[5] The Respondent councillors have now applied under s.75 of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act") to dismiss or strike out this Complaint.

[6] The principles which this Tribunal follows in considering applications under s.75 are set out in Rabel v State Electricity Commission (1998) 1VR 102, and have been followed in numerous cases. (See, for example, Norman v Australian Red Cross Society (1998) 16VAR 243)

[7] Section 75 permits the Tribunal to strike out or dismiss a proceeding, in this case a Complaint, if it is satisfied that it is frivolous, vexatious, misconceived, lacking in substance, or an abuse of process.

[8] The Respondents apply on all these grounds. The principles to apply in this case are these. The Tribunal should be cautious before summarily terminating a Complaint under this section, and so depriving the litigant of the chance to have the proceeding heard in the ordinary course. It should only do so where the Respondent satisfies it that for one of the reasons mentioned in the section the case is manifestly hopeless, undoubtedly unsustainable, on no reasonable view can justify relief or is otherwise doomed to fail.

[9] In particular, if all that is raised is a number of issues of fact in dispute between the parties and the material before the Tribunal does not assist it to resolve their dispute, the case should go to a hearing where evidence as to those facts in dispute can be given and tested by cross-examination.

[10] I have before me the Complaint and Particulars of Complaint, and written and oral submissions from the parties.

[11] The parties in their submissions have clarified the cases that they will put forward if the matter goes to a full hearing. I now summarise the material before me. I then deal with the relevant law and its application.

[12] In March 2000, Mr Evans was elected councillor for the Padleigh Ward of the Brimbank City Council. Mr Evans says that from about 22 November 2001 onwards he suffered from severe work related stress. His work was then as a reporter with Fairfax Community Newspapers. He was thereafter certified by his treating doctor as unfit for work. The Respondents, for the purposes of this proceeding, take Mr Evans' case at its highest. They assume that he will be able to prove what he asserts, although I should say that they deny various assertions made by him.

[13] On 27 November 2001, while attempting to attend a meeting of the Brimbank City Council, which I call "the Council", Mr Evans collapsed and could not continue with the meeting.

[14] On 11 December 2001, Mr Evans' solicitor wrote to the Council's Chief Executive Officer, Ms Duncan, advising that Mr Evans could not attend the Council meeting scheduled for that evening. It is alleged by Mr Evans that his solicitor, in conversation with Ms Duncan, offered to provide a medical certificate if this was necessary. The Respondents do not dispute that the provision of the medical certificate was not at this time required in respect of leave of absence from that meeting, and that the Council granted leave of absence from that meeting to Mr Evans.

[15] The next ordinary Council meeting was scheduled for the evening of 12 February 2002. On that day, Mr Evans wrote to Ms Duncan saying that he did not feel up to deliberating upon statutory business and would not be attending that meeting, on the advice of his doctor, and asking to be noted as an apology from that meeting. There was no dispute that Mr Evans did not provide a medical certificate in respect of his absence from the meeting on that date, and was not required by the Council to provide one.

[16] The Council granted him leave of absence from that meeting and noted his apology.

[17] Another ordinary meeting of the Council was scheduled for 26 February 2002. On that date, Mr Evans wrote to Ms Duncan, saying that he remained unable to face the challenges of deliberating upon statutory business and, on the advice of his doctor, asking that he not attend that meeting, and also requesting that he be listed as declining all official invitations sent via the Municipal Offices until further notice.

[18] He again asked that he be noted as an apology for that meeting. There is no dispute that the Council refused to grant him leave of absence from this meeting by vote of six to two, with the six councillors voting for that resolution being the six Respondent councillors to this Complaint. The Respondents say that during the meeting and after discussion between them, the Respondents decided that Mr Evans should be required to produce medical evidence to support any continued absence from Council meetings, and that the then Mayor, Councillor Suleyman, was to write to Mr Evans advising him of this decision.

[19] The Respondents concede that there was no resolution of Council as to this issue. The Respondents say that they voted to deny Mr Evans' request for leave in respect of this meeting for two reasons.

[20] First, they were concerned by Mr Evans' inability to attend to the ward in respect of which he had been elected councillor and to his functions as a councillor. They needed medical evidence as to how long that inability would continue.

[21] Second, they say, that since Mr Evans continued to engage in vigorous public debate on various municipal issues, they believed that he ought to be able to perform his functions as councillor. They say that they did not believe he was medically unfit to perform those functions.

[22] The Respondents do not dispute that the past practice of Council had been not to require councillors to provide supporting evidence for the reasons for requesting leave of absence from Council meetings.

[23] They say that the decision to require medical evidence from Mr Evans came about because he had, by this time, been absent from three consecutive ordinary meetings of Council, including that of 26 February 2002.

[24] On 7 March 2002, Mayor Councillor Suleyman wrote to Mr Evans noting the concern of a number of councillors in relation to his continued absence from Council meetings, and from the performance of other Council duties, and stating that, should he be unable to attend further meetings, the Council would require evidence, perhaps in the form of certificate or letter from his treating doctor, as to the nature of his medical condition, how it affected his ability to perform his Council duties, and an indication as to when he would be able to resume those duties.

[25] At about this time on 5 March 2002, Mr Evans alleges that Councillor Apap, one of the Respondent councillors in this proceeding, was reported in a newspaper stating that the Council would not accept any more apologies from Mr Evans.

[26] On 8 March 2002, a representative of Councillor Evans wrote to Councillor Suleyman stating that no medical information would be provided.

[27] The next ordinary meeting of Council was scheduled for 12 March 2002. On that date, Councillor Evans wrote to Ms Duncan, saying that he was still certified medically unfit for work, and apologising for not attending the meeting, and saying that this was on the advice of his doctor.

[28] At the meeting of Council, a majority of six to two, the majority again being the six Respondent councillors, voted not to grant Councillor Evans leave of absence from the meeting. The Respondents say they did so for the same reasons for which they refused leave in respect of the meeting of 26 February 2002, and also because Councillor Evans had refused what they considered their reasonable request for medical information.

[29] On 5 April 2002, Ms Duncan wrote to Councillor Evans advising him of the provisions of S.69 of the Local Government Act 1989, under which the position of a councillor who, without the Council's leave, is absent from four consecutive ordinary meetings of Council automatically becomes vacant and an extraordinary vacancy is created. She draws attention to the fact that Councillor Evans had been absent without leave from two ordinary meetings of Council.

[30] On 9 April 2002, another ordinary meeting of Council occurred. On that day, Councillor Evans wrote to Ms Duncan, requesting that the Council grant him leave of absence from that meeting, as he was still certified unfit for work by his medical practitioner.

[31] The Council refused that request, again by a majority of six to two, with the majority again being the six Respondent councillors.

[32] The Respondents say that the request was refused for the same reasons as it had been refused in respect of the 12 March meeting.

[33] The next ordinary meeting of Council occurred on 23 April 2002. There is no dispute that Councillor Evans did not arrive at the meeting venue until after the meeting had ended. Councillor Evans' material contains an explanation of his absence from that meeting, but it is unnecessary for present purposes for me to set that explanation out here.

[34] On 24 April 2002, Ms Duncan wrote to Councillor Evans advising him that since he had been absent without leave for four consecutive ordinary meetings of Council, his position as councillor had become vacant and an extraordinary vacancy had been created. A by-election occurred in July 2002. The then former Councillor Evans was a candidate at that election, but was not elected.

[35] Mr Evans' claim is clarified in the material before me as that the Respondents directly discriminated against him on the basis of his medical condition of stress by refusing to grant him leave of absence for the Council meetings of 26 February, 12 March and 9 April 2002, and by requiring him to provide medical evidence supporting his requests for that leave.

[36] He says that he was treated less favourably than councillors without that impairment, who requested leave for other reasons, were treated; for example, for the reason that a councillor was required to work interstate for a period. These other councillors, he says, were not required to provide supporting evidence for the request for leave, and their requests for leave were granted.

[37] Under S.8 of the Equal Opportunity Act, when applied to this case, the Respondents would discriminate against Mr Evans, a person with the attribute of impairment, if they treated him less favourably than they treated or would treat a person without that impairment in the same or similar circumstances, and the impairment were a substantial reason for the treatment. S.8 does not require the impairment to be the sole or dominant reason for the relevant treatment.

[38] Among other things, S.67 of the Equal Opportunity Act prohibits a councillor of a municipal council from discriminating against another councillor of that council in the performance of his or her public functions.

[39] The Respondents first say that the Complaint is incapable of constituting direct discrimination because their conduct was not based on Mr Evans' impairment, even assuming that he is able to prove that at the relevant time he suffered from such impairment.

[40] They say that they were unaware that Mr Evans had an impairment and that it was because they believed that he did not have an impairment that compelled his absence from council duties that they required him to provide supporting medical evidence for requests for leave. Mr Evans makes a contrary submission. He says the Respondents must have been informed by the Council's Chief Executive Officer, Ms Duncan, of Mr Evans' solicitor's statement concerning his medical condition and of his willingness, if necessary, to provide supporting medical certificates; that the Council had not required supporting evidence for requests for leave in the past, and that the Respondent councillors only refused his request for leave of absence and required him to provide supporting medical information when it became apparent to them that his absence because of illness would be lengthy.

[41] I am not prepared to say that Mr Evans' illness is incapable of - or alleged illness is incapable of being a factor in the Respondent's conduct so that it could be said that Mr Evans' case is manifestly incapable of constituting impairment discrimination. In my view, it can be said on the material before me that the issue of the existence and/or the extent of any impairment suffered by Mr Evans was in the mind of the Respondents when they acted as they are alleged to have done.

[42] The impairment, it must be remembered, need only be a substantial reason for the relevant treatment. There are clearly a number of reasons which actuated the Respondents, and the matter should, in my view, go to a full hearing where evidence as to both the conduct and the reasons for it can be given and tested through cross-examination.

[43] The Respondents next say that, even assuming, which they deny, that they discriminated against Mr Evans, the discrimination is so inconsequential that on no reasonable view could it justify relief. The contrary submission is made for Mr Evans. I do not accept the Respondents' submissions. There is no doubt that the orders which the Tribunal could make if this matter went to a full hearing and the claims were found proved are somewhat limited.

[44] It could not, in my view, order the reinstatement of Mr Evans as councillor. There is no dispute that his position as a councillor became automatically vacant by virtue of the operation of s.69 of the Local Government Act 1989, and particularly because of s.69(1)(g) which deals with absence without leave from four consecutive ordinary meetings of Council.

[45] The Tribunal cannot reverse a result worked by the operation of statute. The operation of that statute was triggered by Mr Evans' absence from four consecutive ordinary Council meetings. For the first three of these meetings, he requested but was refused leave of absence. His absence from the fourth of these meetings was because of his own and not the Respondents' conduct.

[46] It is not clear from the Particulars of Complaint what is the nature of the loss or damage claimed by Mr Evans. It may well be difficult for him to claim loss arising from the creation of the extraordinary vacancy, because that occurred by virtue of the statute I have just mentioned. That occurred automatically. It arose when Mr Evans was absent from the fourth of the consecutive ordinary Council meetings.

[47] His absence from the fourth of those meetings was due to his own and not the Respondents' conduct.

[48] On the other hand, that absence, it might be said, would not have given rise to an extraordinary vacancy, had it not been for the three earlier consecutive ordinary meetings from which he was absent without the leave of the Council, in circumstances where the Respondent councillors, he says, discriminated against him by refusing that leave.

[49] But it may also be that Mr Evans claims that the refusal of the leave itself was less favourable treatment of him, in that it was a denial of what was in practice a virtual entitlement allowed to other councillors. I am not prepared to say that the claim is so inconsequential that on no reasonable view could it justify relief, at least as far as an order for compensation is concerned.

[50] I note that there are many disputes of fact in this case. In my view they should proceed to a full hearing where they can be the subject of evidence which is tested through cross-examination. However, also in my view the Particulars of Complaint are clearly deficient. Because of this I order that the complainant file and serve the following further Particulars of Complaint:

(a) Details of the nature and extent of Mr Evans' impairment at the time of the alleged discrimination;

(b) Details of how the Respondents' alleged conduct was substantially based on that impairment;

(c) Details of the relevant comparator of the purposes of the claim of direct discrimination;

(d) Details of the loss suffered by Mr Evans and how that loss was suffered in consequence of the Respondents' alleged conduct.

[51] Finally, I should say that a number of matters were raised which I consider irrelevant to the present application and therefore have not dealt with. They included whether certain conduct breached the Local Government Act 1989, and the nature of certain groups or factions within the Brimbank City Council at the time when this discrimination is alleged to have occurred.