1. Proceeding dismissed pursuant to Section 75 of the Victorian Civil and Administrative Tribunal Act 1998.
2. Pursuant to Section 146 of the Victorian Civil and Administrative Tribunal Act 1998 the Tribunal directs that no person other than a party may inspect the affidavit of Emma Louise Murphy sworn 28 April 2010.

Mr Goubran of Counsel, instructed by Minter Ellison on behalf of the respondent (which did not submit to the Tribunal's jurisdiction)

1. Mr Gluyas has been diagnosed with Aspergers syndrome.
2. Mr Gluyas has noted the existence of a 'blog' entitled 'hatingautism' established by Mr John Best Jr of Londonderry, New Hampshire in the United States of America. Mr Gluyas says that this blog and certain others which specifically name him constantly abuse and vilify those on the autism spectrum. He says Mr Best has specifically vilified him, Mr Gluyas, using his name without Mr Gluyas's authority and plagiarising text from Mr Gluyas's own site or blog.
3. Mr Best's blog is established through the domain of Google Inc www.blogger.com. According to a complaint by Mr Gluyas to the Victorian Human Rights and Equal Opportunity Commission, this platform allows anyone with internet access to 'create their own blog'. Mr Gluyas observed that Google has a content policy which provides inter alia

users may not publish material that promotes hate towards groups based on race or ethnic origin, religion, disability, gender, age, veteran status, and sexual orientation/gender identity.

Mr Gluyas raised his concerns with Google Inc but according to his complaint to the Commission

they state that in matters that they regard as "Defamation, Slander and Libel" they do not remove allegedly defamatory content from www.google.com or any other United States or dot com domains unless the material has been found defamatory by a court, as evidenced by a court order. Furthermore, in matters where hate of a protected groups (sic) (such as disability) is apparent, it is only possible to follow a process to just report the blog as a hate blog and not detail the complaint. This process is completely inadequate and has been used multiple times for no effect.

1. As a result Mr Gluyas made a written complaint dated 24 June 2009 which he lodged with the Commission alleging against Google Inc that it authorised and assisted discrimination on the basis of impairment in the provision of goods and services. The complaint was lodged under the Equal Opportunity Act 1995 (Vic).
2. The Commission advised Mr Gluyas by letter dated 27 August 2009 that the Commission did not 'consider it reasonably possible that this complaint may be successfully conciliated'. Mr Gluyas then requested that this complaint be referred to this Tribunal for hearing, which the Commission did by a letter dated 18 September 2009.
3. Google Inc under cover of the statement that it does not submit to the jurisdiction of this Tribunal to hear and determine the complaint applied under Section 75 of the Victorian Civil and Administrative Tribunal Act 1998 for an order summarily dismissing the complaint against it.

1. Mr Gluyas's grievance as a member of the autism spectrum community against a blog entitled 'hatingautism' is obvious enough. Precisely how this grievance can fit within a complaint of discrimination under this State's Equal Opportunity Act is less obvious. Google has provided the facility to Mr Best to give utterance to his views on autism, in addition according to Mr Gluyas, it has enabled Mr Best to use Mr Gluyas's name and plagerise text from his own site or blog. Section 7 of the Equal Opportunity Act provides that discrimination may be direct or indirect. Direct discrimination is defined by Section 8 in the following terms

(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. The 'attribute' with respect to Mr Gluyas is presumably 'impairment' Section 6(b).
2. Indirect discrimination is defined as follows by Section 9 of the Act

(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.

Mr Gluyas's case appears to be that Google has authorised or assisted discrimination by Mr Best. Section 98 of the Act provides

A person must not request, instruct, induce, encourage, authorise or assist another person to contravene a provision of Part 3, 5 or 6.

1. Section 99 renders a person who authorises or assists a contravention, subject to the Act's process.
2. Mr Gluyas has alleged that there has been discrimination against him in the provision of goods and services.
3. Insofar as the alleged principal offender in the present circumstances would appear to be Mr Best, it is not immediately obvious how Mr Best is discriminating against Mr Gluyas in the provision of goods and services. Mr Best is not, so far as can be ascertained, providing services to Mr Gluyas at all, nor so far as I can ascertain, is Google providing services to Mr Gluyas.
4. Google it seems is engaging in no direct discrimination prohibited by the Act against Mr Gluyas, nor is Mr Best. Hence insofar as Google could be regarded as assisting Mr Best, it cannot be regarded as having engaged in direct discrimination.
5. As I understood, in Mr Gluyas's submission he contends that he was the victim of indirect discrimination. The Equal Opportunity Act does not prohibit discrimination at an abstract level. It defines discrimination at a higher level of abstraction, but only prohibits discrimination in certain relationships such as employment, provision of services and facilities, decisions as to who should be made a partner in a firm of five or more partners etc. It is not evident to me that in his relationship either with Google or with Mr Best, Mr Gluyas falls within any of the categories wherein discrimination is prohibited by the Victorian Equal Opportunity Act. Where Section 9 in defining indirect discrimination requires to the imposition of a requirement, condition or practice, it does so in the context such as an imposition of a requirement, condition or practice in an employment relationship as a condition of being able to purchase certain goods, or to enrol at a particular educational institution. Mr Gluyas's complaint is that he and his fellow sufferers in the autism spectrum are being subjected to 'hate speech' by Mr Best. That is not a requirement, condition or practice for the purposes of Section 9. It follows that as Mr Gluyas's complaint is now framed I have difficulty seeing that it could amount to prohibited direct or indirect discrimination under the Victorian Equal Opportunity Act.
6. Again, on the evidence before me, Google Inc has no corporate existence in Victoria. The Supreme Court of Victoria, under Order 7 of its rule, makes provision for the service of its process outside Victoria and also outside the Commonwealth of Australia. These provisions do not apply to this Tribunal. The Service and Execution of Process Act 1992 (Cth) under Part 4 authorises in certain circumstances the service of Tribunal process outside the home state in another state or territory of the Commonwealth. As I understand it Google has no corporate existence in any other state or territory of the Commonwealth. There is no provision for the service of this Tribunal's process outside the territorial limits of the Commonwealth of Australia. Where there is no voluntary submission to the Tribunal's jurisdiction the problems of service of initiating process appear to be insoluble (though there may be some ground for treating the proceedings under the Equal Opportunity Act from ordinary civil proceedings because they are initiated by referral, rather than by the issue and service of an application filed in the Tribunal.).
7. Google does not rely either upon the difficulties of characterising Mr Gluyas's grievance as unlawful discrimination under the Victorian Act, nor the difficulties of bringing it as a foreign corporation without a corporate presence in Australia under the Tribunal's jurisdiction by service of process. Rather it contends that what it has done, or has not done with respect to Mr Gluyas, is entirely outside the State of Victoria and is therefore not governed by the provisions of the Victorian Equal Opportunity Act 1995 at all.

1. Google was represented by Mr Goubran of Counsel, who as previously noted stated that its client did not submit to the Tribunal's jurisdiction. He noted first that this Tribunal is not a superior court of record and therefore has no implied or inherent jurisdiction rather as a statutory Tribunal it had the jurisdiction bestowed on it by its constituent Act, the Victorian Civil and Administrative Tribunal Act 1998 and other statutes defined in the Victorian Civil and Administrative Tribunal Act as enabling enactments.
2. He submitted that the Equal Opportunity Act 1995 has no extraterritorial operation. He said the ordinary presumption attaching to the general words of an enactment of a parliament such as Victoria's was that it intended to govern only matters within Victoria's territory. He referred to Jumbunna Coal Mine NL v Victorian Coal Miners Association (1908) 6 CLR 309, 363 per O'Connor J; Boath v Wyvill (1989) 85 ALR 621, 636. This principle was, he said, codified by Section 48 of the Victorian's Interpretation of Legislation Act 1984, which he said provided that in construing a Victorian statute 'a reference to a ... matter or thing should be construed as a reference to such ... matter or thing in and of Victoria'. He submitted that the general words of the Victorian Statute should not be construed as extending to matters governed by foreign law. He referred to Wanganui-Rangitikei Electric Power Board v Australian Mutual Provident Society [1934] HCA 3; (1934) 50 CLR 581, 601 per Dixon J.
3. He said these principles were exemplified with respect to the anti-discrimination jurisdiction in this Tribunal by two decisions of Deputy President McKenzie which applied the same principle, mainly Cooper v State of Victoria [2003] VCAT 589 and Reid v Jet Aviation Management AG [2000] VCAT 1848. The latter case, he said, indicated that a matter could fall beyond the reach of the Victorian Act even where certain elements of the dispute occurred within or were connected with Victoria. He said according to Deputy President McKenzie it was the treatment of the complainant by the alleged discriminator which was the key issue in determining whether the Victorian Act applied or not.
4. According to Mr Goubran the allegedly prohibited conduct occurred entirely within the United States. He said his client was incorporated in Delaware and had its central management and control in the State of California, it had no servers in Victoria, the contractual arrangements between Google and its customers such as Mr Best were not governed by Victorian law.
5. Mr Goubran submitted the complaint should be summarily dismissed.

1. Mr Gluyas placed the decision of the High Court of Australia in Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 at the forefront of his submission.
2. Mr Gluyas did not dispute the proposition that the Equal Opportunity Act 1995 ought not be regarded as applying to action taken outside the territorial limits of the State of Victoria.
3. He contended however that in the circumstances Google had engaged in discriminatory behaviour in Victoria in the same way as Dow Jones in the Gutnick case was found to have published defamatory material in Victoria by placing it on the internet via a server in New Jersey with the text being downloaded by third parties in Victoria.
4. Mr Gluyas complained that his intellectual property rights had been invaded by Mr Best's employment of his (Mr Gluyas's) name without Mr Gluyas's authority and further by appropriating text from Mr Gluyas's site or blog without Mr Gluyas's permission. He said that he and other members of the autism community were the victims of hate speech. Google should have taken the sites down and should be ordered to do so by the Tribunal.
5. He submitted it was not to the point that Google was not the author of the material. It was sufficient he said to render Google liable for the publication of the material that it provided the platform for its publication on the internet and failed when requested to do so to take the material down. He referred to a decision of Morland J as a trial judge in the Queens Bench Division on the High Court of Justice in England in Godfrey v Demon Internet Ltd [1999] EWHC QB 244; [1999] 4 All ER 342.

1. In reply, Mr Goubran submitted it was important to distinguish between the statutory claims under the Equal Opportunity Act and the common law right of action for defamation. He noted that the High Court had recently and repeatedly emphasised the importance of being guided by the text of the relevant enactment rather than by analogies or commentaries as to its meaning.
2. Even if there was some connection with Victoria, Reid's case dealing with an employment contract showed that some connection with Victoria was not necessarily enough to subject a person to the provisions of the Victorian Equal Opportunity Act. In that case, he noted a letter of termination of employment was transmitted by facsimile transmission to a location in Victoria yet this Tribunal concluded that what had occurred was beyond the territorial reach of the Equal Opportunity Act.
3. He said the essence of Mr Gluyas's complaint was that Google had failed to take down the offending site. Given it was common ground that the server or servers in question were located outside Victoria, this was necessarily a complaint of an omission to act outside Victoria and hence was beyond the scope of the Victorian Equal Opportunity Act.
4. He said any invasions of Mr Gluyas's intellectual property rights were beside the point and were not comprehended by the Equal Opportunity Act.

1. Since it is common ground that a Victorian Act framed in general terms is not to be regarded as purporting to regulate activities outside the State of Victoria, it is unnecessary for me to canvass the authorities establishing this proposition.
2. Again, whilst Section 2(1) of the Australia Act 1986 empowers Victoria's Parliament to legislate extraterritorially, so long as the extraterritorial legislation can be seen as for the peace, order and good government of Victoria, nevertheless no party has contended that enacting the Equal Opportunity Act 1995 the Victorian Parliament was purporting to legislate extraterritorially in exercise of their power granted and conferred to it by Section 2(1) of the Australia Act.
3. The question for determination here is whether there has been discriminatory behaviour by Google against the applicant within the State of Victoria.
4. At first blush the answer would appear to be 'no'. Once one focuses upon the activities of Mr Best or Google, the action appears to have occurs outside Victoria. Mr Best has placed his material on the internet so far as can be ascertained from his place of residency in Londonderry New Hampshire in the United States of America. Similarly, Google has enabled that process by maintaining its blog or site with the server or servers located outside Victoria. Mr Gluyas contends however that discriminatory conduct has occurred in Victoria by the publication in Victoria to, amongst other people himself, of the offending material emanating from Mr Best. This view of things obviously invites comparison with the High Court's decision in Gutnick's case. In that case, Mr Gutnick sought to sue Dow Jones Inc in the Supreme Court of Victoria alleging it had placed material defamatory of Mr Gutnick on its site by the use of a server in New Jersey. A jurisdictional challenge by Dow Jones was unsuccessful both before the trial judge Hedigan J and before the High Court of Australia. Their Honours concluded that each download of the allegedly defamatory material constituted a publication and to the extent that the material was downloaded in the State of Victoria, the allegedly defamatory material was to be regarded as having been published in Victoria, thereby creating a tortious liability judged in accordance with Victorian law as the lex loci delicti (and also the lex fori). In deciding as it did, the High Court was conscious that a person wishing to publish defamatory material worldwide could insulate himself from liability by locating the relevant server in the most defendant friendly territorial jurisdiction. In fact, by reason of the operation given to the First Amendment to the United States Constitution, with its guarantee of free speech, a defamation plaintiff is far less likely to succeed in a United States jurisdiction than he or she would be within one of the Australian States.
5. In my view, Mr Goubran correctly characterised the gravamen of Mr Gluyas's complaint as being Google's apparent refusal to take down the offending site or blog. The action necessary to effect that take down (it was not suggested by Mr Goubran that such a take down would be technologically impossible for his client) would occur where the relevant server or servers were located outside Victoria. Hence the discriminatory act or omission alleged against Google occurred outside Victoria. The discriminatory actions alleged against Mr Best appear to have occurred in New Hampshire. As Deputy President McKenzie observed in Cooper v The State of Victoria [2003] VCAT 589 at [17] 'At the heart of the concept of both direct and indirect discrimination is conduct by the discriminator'. For conduct to be properly regulated by the Victorian Act it must have occurred within Victoria. For the reasons already given I do not believe that Google's action (or omission) in not taking down this material can be regarded as having occurred in Victoria. Similarly, if the process of putting the material up in the first place were regarded as the determining factor and if it could be regarded as something in which Google assisted for the purposes of Section 98 of the Equal Opportunity Act, that too occurred outside Victoria.
6. In Godfrey v Demon Internet Ltd the plaintiff sued an internet provider which refused to remove allegedly defamatory material originating in the United States from its server in England. Demon claimed to be entitled to a defence under the English Defamation Act 1996 Section 1 someone who is neither the author, editor or publisher of the statement complained of who took reasonable care in relation to its publication and did not know and had no reason to believe that it had caused or contributed to the publication of the defamatory statement. Morland J held that in the circumstances Demon was to be regarded as having published the material. His Lordship said that Demon was in the same situation as a bookseller who sold a defamatory book or the operator of a circulating library which provided books to subscribers. He struck out the defence under Section 1 of the Defamation Act. Mr Goubran however observed that since Demon's server was located in England, his Lordship did not have to consider whether in the circumstance allowing access in England to material 'put up' by a subscriber on an overseas server could be regarded as publication in England.
7. It may be that if a publication of offensive material such as is complained of here could be regarded as constituting direct or indirect discrimination contrary to the Equal Opportunity Act 1995, a person such as Mr Best or Dow Jones, the author of the material launched onto the internet, could be regarded as having engaged in discrimination in Victoria. Where the involvement of the person such as Google is purely passive, providing a platform on the internet without encouraging offensive material, but merely failing to take it down, it is a different matter. This was the conclusion reached by Eady J in Metropolitan International Schools Ltd v Design Technica Corporation & Others [2009] EWHC 1765 (QB) with respect to Google, as the operator of a search engine. Google's role in the present as the provider of the site or the blog is significantly different, but nevertheless in my view ultimately a relatively passive one and one which could not see it regarded as having published the offending material in Victoria.
8. It is unnecessary in the circumstances before me to canvass the authorities on the meaning and operation of Section 75 of the Victorian Civil and Administrative Tribunal Act 1998. It authorises the dismissal of whole or part of a claim where the claim is found to be frivolous, vexatious, misconceived, lacking in substance or otherwise an abuse of process. The conduct complained of is proven to have occurred outside of the territorial ambit of the Equal Opportunity Act. A claim made against a party such as Google is doomed to fail and it is appropriate for summary dismissal.
9. I am fortified in this view by the thought that even independently of the territorial issue, which affect Mr Gluyas's claim, there are serious questions as to whether what he alleges could possibly constitute direct or indirect discrimination. Given that this was not fully ventilated or ventilated to any great extent at all in the course of the application before me, it would be inappropriate however to place ultimate reliance on any of these further matters and so I refrain from doing so.