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[2003] VCAT 1293
respondent. Pursuant to s75 VCAT Act the complaint was struck out as bound to fail because the age-based cessation of weekly payments was authorised by the Accident Compensation Act s93F; no order as to costs...
The complainant's workers compensation payments stopped when he turned 65. He complained of age discrimination. The insurer successfully applied to strike out the complaint because the Tribunal held the Equal Opportunity Act permits discrimination that is authorised by another Act. The Accident Compensation Act expressly provides that workers are not entitled to weekly payments after attaining retirement age (defined as occupation's normal retirement age or age 65). Because the cessation at 65 was authorised by that statute, the Tribunal concluded the complaint could not succeed and struck it out under its summary dismissal power; no costs were ordered.
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1,792 words · generated 18/08/2026
Mr Carlo Finamore, the complainant, sustained a workplace injury in 1999. His workers compensation insurer, Mercantile Mutual (trading as QBE Mercantile Mutual Worker's Compensation), assessed his impairment at 13% and paid him weekly payments for just over 12 months [1]. On 20 November 2000 the insurer informed Mr Finamore that the payments would cease because he had reached retirement age, he turned 65 on 17 November 2000 [1]. Mr Finamore lodged a complaint alleging unlawful age discrimination with the Equal Opportunity Commission. The Commission declined to exercise conciliation and, at Mr Finamore’s request, referred the matter to the Victorian Civil and Administrative Tribunal (VCAT) [2].
3 cited instruments linked from this judgment.
The respondent applied to VCAT to strike out the complaint under s75 of the Victorian Civil and Administrative Tribunal Act 1998, on the grounds the complaint was frivolous, vexatious, misconceived or lacking in substance and therefore bound to fail [2, 5]. The strike-out hearing was conducted before Senior Member B. Steele on 15 September 2003 and the Tribunal published written reasons on 19 September 2003.
The Tribunal accepted that the insurer had made its decision on the basis of age [9]. However, the respondent relied on a statutory authorisation: the Accident Compensation Act 1985 (ACA) provides that, subject to s93E, a worker is not entitled to weekly payments after attaining retirement age (s93F) [10], and the ACA defines 'retirement age' as whichever is earlier of the occupation's normal retirement age or age 65 (s5) [12]. The Tribunal held that because the statutory scheme authorised the cessation of weekly payments at retirement age, the conduct complained of was permitted by the Equal Opportunity Act's own saving provision (s69) which allows discrimination if authorised by another Act [9-14]. Accordingly, the Tribunal concluded the complaint could not succeed and struck it out under s75; no order as to costs was made [19; Orders].
Two statutory provisions drove the decision.
First, s69 of the Equal Opportunity Act 1995 provides that a person may discriminate if the discrimination is necessary to comply with, or is authorised by, a provision of an Act other than the Equal Opportunity Act. Subsection (2) expressly states the other Act need not use the language of 'discrimination' so long as it authorises or necessitates the conduct that would otherwise constitute discrimination [9].
Second, the Accident Compensation Act 1985 contains the operative provision: s93F says that, subject to s93E, a worker is not entitled to weekly payments after attaining retirement age [10]. The ACA defines 'retirement age' (s5) as the earlier of a normal retirement age for the occupation and age 65 [12]. On these statutory texts the insurer’s termination of weekly payments when the complainant reached 65 was an act authorised by the ACA.
VCAT's strike-out jurisdiction under s75 of the VCAT Act permits summary dismissal where a proceeding is frivolous, vexatious, misconceived or lacking in substance, or otherwise an abuse of process [5]. VCAT is required to exercise caution before summarily terminating proceedings; it should do so only where the claim is 'obviously hopeless' or 'bound to fail' (a principle adopted from Norman v Australian Red Cross Society and quoted at length in the reasons) [6-7]. Applying that framework, Senior Member Steele concluded the complaint was bound to fail because the Equal Opportunity Act's saving provision (s69) and the ACA's s93F together remove any arguable unlawful discrimination in the facts pleaded: the employer/insurer acted pursuant to a statutory rule that displaces the Equal Opportunity Act prohibition; therefore no relief could be justified in the Tribunal [14-15, 19].
The Tribunal also emphasised institutional limits: it would not re-adjudicate or reform statutory policy choices about when workers compensation ceases; such matters are for Parliament and for the review process provided in s207 of the Equal Opportunity Act, not for the Tribunal in this complaint [15-16]. Finally, the Tribunal clarified that other grievances the complainant raised about impairment assessments were not before the Tribunal and, even if they had been, the mere fact a decision concerns impairment does not of itself amount to unlawful discrimination [18].
Before this decision: the statutory framework already existed. The Equal Opportunity Act contained s69 which permits discrimination authorised by other Acts. The Accident Compensation Act contained s93F and a definition of retirement age in s5. The legal tension was procedural and interpretive: where a complainant alleges age discrimination that mirrors a legislative entitlement or disqualification under another statute, does the Equal Opportunity Act permit a Tribunal to adjudicate the complaint, or does s69 render that conduct lawful?
After VCAT's decision in Finamore: the Tribunal applied the existing textual scheme in a straightforward manner, holding that where the ACA unambiguously disqualifies weekly payment after retirement age, s69 of the Equal Opportunity Act makes that disqualification an authorised exception to the prohibition of age discrimination. Practically, Finamore confirms that a complaint to VCAT that challenges a statutory entitlement or disqualification will be vulnerable to a strike-out application where the other statute plainly authorises the impugned conduct and no other arguable cause of action is shown.
This decision is not a new statutory interpretation that alters the text of either Act; rather it is an application of the statutory exemption to the pleaded facts and an exercise of VCAT’s strike-out power when a claim is bound to fail.
VCAT's strike-out power (para 5):
Caution before striking out (para 7):
The Equal Opportunity Act saving (para 9):
The Accident Compensation Act rule (para 10):
Tribunal’s conclusion (para 19):
This decision will be directly relevant where:
In such factual circumstances, Finamore shows VCAT will consider whether, on any reasonable view, relief could be obtained; if not, the proceeding is apt for summary dismissal.
This written decision does not report subsequent appellate treatment or later cases within the reasons. The reasons cite and follow VCAT authority (Norman v Australian Red Cross Society) on the principles for strike-out applications [6-7]. The judgment itself applies statutory texts (Equal Opportunity Act s69; Accident Compensation Act s93F and s5). The reasons do not assert any new hierarchy of authority or overrule other decisions. Therefore, as recorded in this decision, there is no discussion of subsequent judicial treatment in the reasons themselves.
Scope of s69 when a statutory provision is arguably ambiguous
Interaction with human-rights or charter-type protections
Procedural limits on piecemeal complaints
Parliamentary remedy route under s207
Extent to which insurers' discretionary impairment decisions can attract discrimination claims
Note: the above deep dive is grounded entirely in the Finamore judgment (reasons paragraphs cited) and the statutory provisions quoted therein. It does not introduce external case law beyond the Norman decision cited in the judgment.
This is general legal information about the judgment, not legal advice. I can make mistakes. Before you rely on, act on, or use any part of this analysis, get a qualified Australian lawyer to check it.
Equal Opportunity Act 1995 section 69(1) and (2); Accident Compensation Act 1985 section 93F; Victorian Civil and Administrative Tribunal Act 1998 section 75(1); Norman v Australian Red Cross Society (1998) 14 VAR 243; strike out application.
Mercantile Mutual Worksure Ltd t/as QBE Mercantile Mutual Worker's Compensation
1. Pursuant to section 75 of the Victorian Civil and Administrative Tribunal Act 1998, the
REASONS FOR DECISION (Revised from tape of oral reasons given at hearing)
1. The background to this matter is that the Complainant, Mr Carlo Finamore, sustained injuries in the course of his work in 1999. His workers compensation insurer, which is the Respondent, assessed his disability at that stage at 13% impairment and paid him a weekly amount for just over 12 months. On the 20th of November 2000, the Respondent informed him that these payments would cease as of that date as he had turned 65 on 17 November 2000.
2. Mr Finamore complained to the Equal Opportunity Commission, alleging unlawful discrimination on the basis of age. The Equal Opportunity Commission decided to decline the complaint and at Mr Finamore's request referred it to the Tribunal. The Respondents apply for the complaint to be struck out on the basis that it is frivolous, vexatious, misconceived or lacking in substance.
3. There were some directions made in the course of preparation for this hearing. The Respondent submitted that Mr Finamore did not comply with the directions made on 1 August this year and I have already said in the course of hearing of these submissions that I will not strike the matter out on the basis of that non compliance, because I consider that to some degree Mr Finamore has complied with those directions.
4. Mr Finamore, the Complainant, is correct in saying that age is one of the attributes on the basis of which discrimination is prohibited under the Equal Opportunity Act 1995. That Act however has a number of exemptions and exceptions and it was the Respondent's submission that this Complaint falls within one of the exceptions and therefore it would be impossible for Mr Finamore's Complaint to succeed.
5. Section 75 of the Victorian Civil and Administrative Tribunal Act 1998 is the basis of the Respondent's application for this matter to be struck out. It says in sub section (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
6. The Tribunal has decided a number of cases about section 75. In Norman v the Australian Red Cross Society (1998) 14 VAR 243 the Tribunal sets out a number of the principles to be taken into account when the Tribunal is deciding on an application under section 75 and this is such an application.
"...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.
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 complaint 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."
8. I note particularly that it is a serious matter to strike out a Complaint in an interim procedure such as this application. The Tribunal must give careful consideration to an application such as this and I am mindful of this. I am aware that it is a serious matter to say to someone that there is no possibility of this Complaint succeeding in this Tribunal. It amounts to a finding that the Complaint is obviously hopeless, obviously unsustainable in fact or in law and really is bound to fail. That is my view.
9. The reason for this view is that the discrimination in question is not prohibited. The Respondent does not deny that it has made its decision on the basis of the complainant's age. It says that is exactly the basis for its decision, but it goes on to say that there is an exemption under the Equal Opportunity Act 1995 which applies to it. The Respondent refers to section 69 of that Act which says:
"(1) A person may discriminate if the discrimination is necessary to comply with or
is authorised by a provision of an act other than this act...
(2) For the purpose of subsection (1) it is not necessary the provision refer to
discrimination as long as it authorises or necessitates the relevant conduct that
10. The Act which the Respondent company refers to as authorising it under section 69(1)(a) is the Accident Compensation Act 1985 under which it is an insurer. Section 93F of that Act says:
"Subject to section 93E a worker is not entitled to weekly payments after attaining retirement age."
11. Section 93E in fact deals with the situation where somebody is injured within the year before they reach retirement age which is not the case here.
12. The Accident Compensation Act 1985 defines retirement age, it says in section 5:
a) if there is a normal retirement age where the workers in the occupation in which the worker was employed at the time of the injury at that age or
13. So under that Act, workers compensation payments cease when a person reaches 65 years of age. It may be earlier if there is a normal retirement age in the relevant industry. That is not the case here, the Complainant has already gone to the maximum, which is 65.
14. In my view section 93F then completely answers the claim and there is no point in it being given any further hearing.
15. Mr Finamore in his submissions raised a wider issue about workers compensation in general. He says in effect that it is not fair that workers compensation payments should cease when somebody reaches the age of 65. It is not the Tribunal's business to make any finding or decision or say anything about that. On the complaint before me I simply decide that the discrimination is not prohibited, so can not be the subject of a successful complaint. I add that the matter has already been dealt with by Parliament in Victoria which clearly says that the cut off point is 65 years age and clearly says that its not unlawful discrimination for that cut off point under the Accident Compensation Act 1985 to be applied to a particular person.
16. There is also in the Equal Opportunity Act 1995 provision for various acts to be assessed by the responsible Minister to see whether they actually do comply with the legislation. That is section 207 which says:
"The Minister must cause a review of all acts and enactments to be undertaken for the purpose of identifying provisions which discriminate or may lead to discrimination against any person".
17. I point that out merely for completeness, to show that the Parliament has set out a procedure by which government can assess whether legislation is discriminatory in a way which is prohibited.
18. Finally Mr Finamore has said that he is unhappy with other decisions made concerning him, by the Respondent, to do with his impairment. Those decisions are not before me. They were not part of the complaint. For the sake of completeness again, I say that simply because a decision is to do with someone's impairment does not mean that it amounts to unlawful discrimination. It seems to me that insurers under the Accident Compensation Act 1985 are required to make decisions about impairment all the time. That is not in itself unlawful discrimination.
19. I repeat my decision again for the benefit of the Complainant. His Complaint is struck out and the reason for that decision is that it would not be possible for this Tribunal to find that the Respondent has discriminated against the complainant unlawfully.
Finamore
QBE Mercantile Mutual Worker's Compensation [2003] VCAT 1293
Pursuant to s75 VCAT Act the complaint was struck out as bound to fail because the age-based cessation of weekly payments was authorised by the Accident Compensation Act s93F; no order as to costs (Orders; paras 14-15, 19).