RESPONDENTS State Of Victoria (Department of Human Services)

DECISION The complaint dated 9 February 1998 is dismissed as against all three Respondents.

On 9 February 1998 the Complainant Ms Meret Field lodged with the Equal Opportunity Commission ("the Commission") complaints against the following Respondents:

(i) the State of Victoria, Department of Human Services alleging discrimination in the provision of goods and services on the basis of religious belief;

(ii) Victoria Legal Aid alleging discrimination in the provision of goods and services on the basis of religious belief; and

(iii) the State of Victoria, Victoria Police alleging discrimination in the provision of goods and services on the basis of religious belief.

The Commission declined to entertain the complaints under section 108 of the Equal Opportunity Act 1995 ("the Act") because it considered they were vexatious, lacking in substance, and involved subject matter that had already been dealt with by a tribunal or court.

Under section 108 (2) of the Act, by her letter of 8 May 1998, the Complainant required the Commission to refer her complaints to the Anti-Discrimination Tribunal (now the Victorian Civil and Administrative Tribunal). Accordingly, pursuant to section 108 (3) of the Act the Commission referred the complaints to this Tribunal.

It should be noted that the complaints lodged with the Commission were purportedly also on behalf of the Complainant's daughter and her infant granddaughter as well as herself. The Commission required of the Complainant, before it would entertain the complaints on behalf of her daughter and granddaughter, some evidence that she was authorised to lodge them on their behalf. No evidence to the satisfaction of the Commission was forthcoming and the referral by the Commission to this Tribunal was only in respect of the Complainant's complaints. When this matter came before the Tribunal on 24 February 1999 the Complainant again asserted that the complaints before the Tribunal included complaints by her daughter and granddaughter, and that she was acting on their behalf with their authority to prosecute them. Deputy-President McKenzie, who heard the application on that day, did not reject the Complaint's submissions but before ruling on them, requested the Complainant to file and serve on this, or indeed any other matters, any further submissions or affidavits by 9 April 1999. Although the Complainant did file on that day further material, none was in support of her submission that she had authority to lodge complaints on behalf of her daughter and granddaughter and to prosecute them on their behalf.

When this matter came before me on 23 April 1999 pursuant to the Respondents' application under section 75 of the Victorian Civil and Administrative Act 1998 ("the VCAT Act") the Complainant failed to appear. Accordingly, the application proceeded as undefended on the basis that only the complaints of the Complainant were to be considered.

The Complainant filed with the Tribunal voluminous material in support of her case. That material has been appropriately labelled by the Complainant as Book I and Book II. Those books are a collection, in part, of correspondence to and from politicians and television personalities, selected extracts from written court decisions, formal Communications lodged with the United Nations Commission on Human Rights, diaries of complaints against various authorities and the Respondents, and legal submissions by the Complainant, together with histories of proceedings by the Complainant in various courts in Australia, including the High Court, the Full Court of the Family Court, the Federal Court, the Victorian Supreme Court and the Magistrates' Court. The Family Court has declared both the Complainant and her daughter vexatious litigants.

The background to the Complainant's history of litigation is as follows. The Complainant's daughter gave birth to a girl on 26 June 1990. The father of that child sought custody of her. He was ultimately successful. The Complainant and the child's mother disputed paternity, and alleged the child was at risk of abuse; principally it seems because the father is Roman Catholic. It is argued by the Complainant that, because there is a history of sexual and other abuse of children by Roman Catholics, the child is therefore at risk. Her concerns have been ignored, the Compliant argues, because authorities such as the Department of Human Services are dominated by an "informal" Roman Catholic culture and is therefore conspiring to ensure that the child remains with the father so that she is raised a Roman Catholic. From the material filed by the Complainant there appears to be a history of the Complainant and her daughter subjecting the child to numerous medical investigations in an endeavour to obtain the proof of their allegations against the father. Ultimately, the Family Court made adverse findings against the Complainant and the child's mother and determined that they be denied access to the child. The Complainant has endeavoured to right the perceived wrongs that centre on the allowed continued involvement of the child's father with the child, the failure of authorities to respond to her concerns over the child's welfare, the denial of access to the child and the denial of a Protestant upbringing for the child. The Complainant now has come to this Tribunal, it appears, in an endeavour to achieve what other courts have denied her.

In the complaint lodged at the Commission on 9 February 1998 and in the Particulars of Claim filed at the Tribunal on 7 August 1998 the Complainant alleges she (and her daughter and granddaughter) had been discriminated against in the provision of goods and services by the Respondents on the grounds of religious belief, cultural values and work status. "Work status" is not an attribute recognised by the Act; nor is "cultural values", save to the extent such cultural values are reflective of religious belief and activity.

From the voluminous material filed by the Complainant it is not easy to discern clear, structured and readily understood complaints relevant to the jurisdiction of this Tribunal. However, from that material the complaints against the respective Respondents appear to be as follows:

The allegation is that, although the Complainant made a notification to the Department about her concerns of abuse of her granddaughter by the child's father, the Department, through its employees, failed to provide her with help or advice, that they misled the courts in various proceedings about her and the child's mother, and that they adversely influenced the testimony of expert witnesses by misinforming them. The Department allegedly played an active role to work against her generally in her quest for the child and her battle against the father. It is also alleged that the Department failed to comply with an order of the Family Court. The reason proffered by the Complainant for the detrimental conduct of the Department's employees is that they were, and are, determined to ensure the child be brought up a Roman Catholic as opposed to a Protestant under the custodial care of her daughter and herself.

It is alleged that the Victoria Police refused to allow her daughter to make a statement about the alleged abuse of her granddaughter, and that the Police misled the then Minister for Justice over the investigation into the abuse. The Police are also alleged to have issued a directive that only Inspector Wills investigate allegations of abuse of the child. Again, the only explanation proffered by the Complainant for this alleged behaviour by the Police is that they too are part of the conspiracy to ensure the child is raised as a Roman Catholic contrary to the Complainant's desire to raise her as a Protestant.

In essence the allegations against Victoria Legal Aid ("VLA") centre on the withdrawal of aid in Family Court proceedings and the refusal to provide aid to initiate Supreme Court proceedings. Although the Complainant is less direct in tying the allegations against VLA to the Roman Catholic conspiracy, taking the general tenor of the material lodged into account and the fact that the Complainant has attempted to establish the link between the alleged discrimination to the "attribute" of her religious beliefs, for the sake of giving the most advantageous interpretation to the Complainant's material, I shall assume that the same Roman Catholic conspiracy applies to the complaints against VLA, and that all those complaints in that regard levelled at the other Respondents apply to this Respondent.

Equal Opportunity Act 1995

The relevant provisions of the Act which apply in this matter are as follows:

The following are the attributes on the basis of which discrimination is prohibited in the areas of activity set out in Part 3 -

(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 a substantial reason.

42. Discrimination in the provision of goods and services

(1) A person must not discriminate against another person -

(a) by refusing to provide goods or services to the other person;

(b) in the terms on which goods or services provided to the other person;

(c) by subjecting the other person to any other detriment in connection with the provision of goods or services to him or her.

(2) Sub-section (1) applies whether or not the goods or services are provided for payment.

(1) A person may discriminate if the discrimination is necessary to comply with, or is authorised by, a provision of -

(a) an Act, other than this Act;

(b) an enactment, other than an enactment under this Act.

(2) For the purposes of sub-section (1), it is not necessary that the provision refer to discrimination, as long as it authorises or necessitates the relevant conduct that would otherwise constitute discrimination.

102. Vicarious liability of employers and principals

If a person in the course of employment or while acting as an agent -

(a) contravenes a provision of Part 3, 5 or 6; or

(b) engages in any conduct that would, if engaged in by the person's employer or principal, contravene a provision of Part 3, 5, or 6 -

both the person and the employer or principal must be taken to have contravened the provision, and a complaint about the contravention may be lodged against either or both of them.

The legislation relevant to the Respondents' application to have the proceeding summarily dismissed is as set out below:

The VCAT Act

75 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

(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.

4. Applications pursuant to section 75(1) of the VCAT Act

In Norman v Australian Red Cross Society (Anti-Discrimination List Complaint No 142 of 1998) Deputy President McKenzie canvassed relevant authorities regarding applications under s 75, and concluded as follows:

"It is possible to set out a number of propositions about the provision and applications under it: -

(1) The scope or the power given by s75 to the Tribunal is similar to the power given to the Tribunal under s109(1) of the Equal Opportunity Act 1995 and which, in turn, is similar to the power given in s44C(1) of the Equal Opportunity Act 1984 (now repealed). Sections 109(1) and 44C(1) also use the words "frivolous, vexatious, misconceived or lacking in substance". Although they do not use the words "abuse of process", the Supreme Court has held that in s109(1) of the Equal Opportunity Act 1995, the words "frivolous, vexatious, misconceived or lacking in substance" include the notion of abuse of process (Al-Hakim v Armstrong and Anor, Sup Ct of Vic, Byrne J, 22 October 1997). The principles set out in Rabel v State Electricity Commission of Victoria [1998] 1VR 102) in relation to s44C(1) of the Equal Opportunity Act 1984 also apply to s75 of the VCAT Act.

(a) The application is for the summary termination of the proceedings. It is not the full hearing of the proceeding.

(b) The Tribunal may deal with the application on the pleadings or submissions alone, or by allowing the parties to put forward affidavit material or oral evidence. The Tribunal's procedure is in its discretion and will depend on the circumstances of the particular case.

(c) If the Complainant indicates to the Tribunal that the whole of his or her case is contained in the material place before the Tribunal, the Tribunal is entitled to determine whether the complaint lacks substance by asking whether, on all the material placed before it, there is a question of real substance to go to a full hearing. However, if a Complainant indicates to the Tribunal that there is other evidence that he or she can call to support the claim and the Tribunal, on the application, does not permit that evidence to be called, then the Tribunal cannot determine the application on the basis that the Complainant's material contains the whole of his or her case.

(d) An application to strike out a complaint is similar to an application to the Supreme Court for summary dismissal of civil proceedings under RSC r23.01 (see also commentary on this rule by Williams, Civil Procedure Victoria). Both applications are designed to prevent abuses of process. However, it is a serious matter for a Tribunal, in interlocutory proceedings which would generally not involve the hearing of oral evidence, to deprive a litigant of his or her chance to have a claim heard in the ordinary course.

(e) The Tribunal should exercise caution before summarily terminating a proceeding. It should only do so if the proceeding is obviously hopeless, obviously unsustainable in fact or in law, or on no reasonable view can justify relief, or is bound to fail. This will include, but is not limited to a case where a complainant can be said to disclose no reasonable cause of action, or where a Respondent can show a good defence sufficient to warrant the summary termination of the proceeding.

(f) On an application to terminate a complaint summarily, the Tribunal must clearly distinguish between the complaint itself and the evidence which is to be given in support of it. A complaint cannot be struck out as lacking in substance because it does not itself contain the evidence which supports the claims.

(g) The test for determining whether a complaint is frivolous, vexatious, misconceived or lacking in substance is different from that applied in other Australian Anti-Discrimination jurisdictions where the legislative context is different from Victoria. It is similar to that applied by the Supreme Court in civil proceedings for the purposes of RSC r23.01

(h) The Tribunal should not apply technical, artificial or mechanical rules in construing a complaint or coming to a view about the case a Complainant wishes to advance.

(3) In a number of cases, the ADT has set out some additional propositions in relation to s109(1). In my view, these also apply to s75 of the VCAT Act. They are -

(a) Where the material before the Tribunal indicates that the parties are in dispute as to a fact or facts in issue, and the material does not assist the Tribunal to resolve that dispute, the Tribunal ought not to terminate the complaint summarily for lack of substance.

(b) If the Tribunal is satisfied that a complaint lacks substance or is misconceived in respect of an element which, under the Equal Opportunity Act 1995, is required to prove before a Complainant can substantiate the complaint at a full hearing, then the Tribunal would be entitled to terminate the complaint summarily.

(c) If it is sought to terminate a proceeding summarily on the basis that the Respondent has a good defence, the Tribunal should not summarily terminate the proceeding on that basis unless satisfied that the defence so completely answers the claim that the claim is manifestly hopeless and untenable (Brooks & Ors v State of Victoria & Anor, ADT of Vic, 30 September 1997).

(4) There are some important differences between s109 of the Equal Opportunity Act 1995 and s75 of the VCAT Act which the Tribunal should bear in mind. They are -

(a) Section 109 of the Equal Opportunity Act 1995 is confined to the striking out of complaints. Section 75 of the VCAT Act applies to any proceeding, including a complaint referred to VCAT. "Proceeding" is defined to mean a proceeding in the Tribunal, and to include an enquiry, Compulsory Conference or mediation, but to exclude a referral under s156 of the Equal Opportunity Act 1995 (VCAT Act s4). A proceeding in the Tribunal is commenced by an application being made, or a matter being referred, to the Tribunal, or the Tribunal's jurisdiction being invoked in any other way authorised or required by legislation (VCAT Act ss43 48 67 69). This application concerns a complaint under the Equal Opportunity Act 1995. That complaint has been referred under that Act to this Tribunal. Once the Tribunal's jurisdiction is invoked by the referral, its function is to hear the complaint referred, rather than to hear the referral. Similarly, under s75, where a party applies to have a proceeding which was commenced by the referral of a complaint summarily terminated, the application is to terminate the complaint rather than the referral of the complaint.

(b) Section 109 was amended by the Miscellaneous Amendments Act. In its form before that amendment, it only permitted a Respondent to apply to have a complaint struck out where the complaint was not being conciliated by the Commission, and before the Tribunal commenced to hear the complaint. In its amended form, it is even more limited. It applies only to complaints under the Equal Opportunity Act which have not been referred to the Tribunal. Section 75 of the VCAT Act is wider. It only applies to a proceeding. In the context of the Equal Opportunity Act, this means that it only applies to an application made, or a complaint referred, to the Tribunal under the Act. However, apart from this limitation, it applies at any time in the course of the proceeding, even in the course of the hearing.

(c) Section 109 only permits a complaint to be "struck out". In Rabel's case, it was suggested that this meant "dismissed" because the complaint was the initiating document in the proceeding. Section 75 of the VCAT Act permits the proceeding to be dismissed or struck out. In my view, these words would permit the Tribunal either to terminate the complaint simpliciter, or terminate it with a right of reinstatement.

(d) I have considered whether the differences between ss109 and 75 mentioned in paragraphs (b) and (c) indicate that the Tribunal should, in applications under s75 which relate to the Equal Opportunity Act 1995, follow the test formulated by Wilson P in Assal v Department of Health Housing and Community Services [1992] EOC 92-409 and Eames J in Rabel v SEC [1995] EOC 92-743). That test was: does the material establish that there is a case to answer which should go to a full hearing? In my view, the Tribunal should continue to follow the test laid down by the Court of Appeal in Rabel's case. The Court of Appeal reversed the decision of Eames J. Although s75 is closer in its terms to the terms of Commonwealth Anti-Discrimination legislation, it still uses the same words as s109(1) of the Equal Opportunity Act. If Parliament had intended to change the test laid down by the Court of Appeal, it would have indicated this more clearly than it has.

(e) Under s75, the Tribunal may summarily terminate a proceeding on application by a party or on its own initiative. Under s109, it may only summarily terminate a complaint on the application of the Respondent. Section 75(1) permits the Tribunal to terminate a complaint summarily if "in its opinion" the complaint is frivolous, vexatious, misconceived, lacking in substance or an abuse of process. In Rabel's case, the Court of Appeal indicated that the onus to satisfy the Tribunal under s109(1) was on the Respondent. I have considered whether the different wording of s75 changes this onus. In my view, the correct position is that, if the Tribunal initiates the order, it must consider all the material before it. If a party applies for the order, the Tribunal must also consider all the material before it, but the onus is on the applicant to satisfy it that the application is made out."

The Respondents in their submission in support of the application under s75(1) of the VCAT Act argued that the complaints against the Department of Human Services and the Victoria Police were misconceived. In that regard it was argued that the Respondents did not provide services to the Complainant within the meaning of s42(1) of the Act.

The Department relies on Owen v Department of Human Services (Anti-Discrimination Tribunal, 21 March 1997 at pp 18-19) and distinguished the more recent decision of Kalinkara v State of Victoria (VCAT, 24 July 1998), which case concerned a complainant's right of access to children who were in the custody of the Department. It was argued that the Complainants case against the Department is misconceived in that it does not disclose a cause of action as no service was provided by this Respondent to the Complainant. (See State of Victoria v Rabel [1998] 1 VR 102 at 109/8) With this I agree.

The Victoria Police it was submitted did not provide a service to the Complainant. Police do provide a service to the victims of crime (See Farah v Commissioner of Police [1998] QB 65 at 78F and 83G) However, the Police do not provide a service to individuals simpiciter. The Police fulfil a public duty to investigate crime but they do not provide a service to any individual such as the Complainant in the circumstances of this case where the Complainant is not a victim of crime or where there is a duty owed to protect her. (See Farah, at 78F, 84H-85A). Again it follows that the case against the Victoria Police is misconceived as it does not disclose a cause of action.

The Respondents' submission in respect of VLA, put simply, was that it was authorised, and indeed obligated, by s49(1) of the Legal Aid Act, in conjunction with a funding agreement between the State of Victoria and the Commonwealth, not to extend aid beyond a monetary cap of $10,000 in respect of Family Court matters. As VLA had advanced $14,000 already to the Complainant, its refusal to provide any further funding, it was argued, was in compliance with, and authorised by s49(1) of the Legal Aid Act. If there was a limit of $10,000 on funding, it begs the question of how and why $14,000 was extended in the first instance. It might be a question of timing, but the material filed does not provide an adequate explanation. However, for reasons outlined below, there is no need to make a determination of the merit of this submission.

The last submission on behalf of all Respondents was that the complaints against them were "lacking in substance". The Complainant in order to bring her complaints within the jurisdiction of this Tribunal has to establish she suffered discrimination because of an attribute. The only attribute she claims is that of "religious belief and activity". She argues that the discrimination she complains of by three independent government instrumentalities is based upon being treated less favourably because she is a Protestant. She argues the Respondents have an "informal" Roman Catholic religion that has acted, and presumably continues to act, to prevent the child being exposed to her Protestant religion through contact with her. She believes the Respondents have acted to ensure the child's continue Roman Catholic indoctrination. Besides the strong expression of her belief in this, the Complainant has not produced any evidence whatsoever to substantiate it. The Complainant's case in this regard is obviously hopeless, obviously unsustainable and has failed to disclose any reasonable cause of action. I have no hesitation in finding, therefore, that the complaints lack substance. In any event, the Respondents have provided reasoned and reasonable explanations for their conduct which constitute a good defence to the claims.

The remedy sought from this Tribunal by the Complainant is ill defined. It is not unreasonable, however, having regard to the history of this matter and the nature of the material filed by the Complainant, to draw the inference that the Complainant desperately hopes through this Tribunal to set aside orders made in Courts of competent jurisdiction, the end result of which, she no doubts hopes, will see the custody of her grandchild given to her, and the father punished. In that context I also find the proceeding vexatious. The complaints I find are brought for a purpose other than that for which proceedings under the Act are properly designed and exist. (See Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 528.)

For the above reasons, I found the Respondents had satisfied their onus of proof under s75(1) of the VCAT Act and accordingly made orders on 23 April 1999 dismissing the complaints lodge on 9 February 1998.