IS EVIDENCE REQUIRED AT THE SUMMARY DISMISSAL STAGE?

1. The respondents' submissions were that, although the application refers to five different statements attributed to the advisor, only the first (7 October 2023) was in evidence before VCAT and the application is limited to that statement. I noted that the complaint refers to additional statements and the following exchange occurred:

SENIOR MEMBER: But if I'm to assume that he can approve every assertion that he makes, don't I also assume that he can prove that she [reading from his application] has called Jews 'liars', called Zionists 'white supremacists', called Zionists 'garden variety racists' and questioned the rights of Israel to exist?

MS DAVERN: Two reasons, no, Senior Member. The first is, what the authorities say is not that the applicant's claims should be taken at their highest, but the evidence he has put on, should be accepted. So it - that is the point. That is the - the point of the authorities is, where there's material, you should take that at its highest.

1. This submission runs contrary to the above-stated principle that 'a proceeding should not be summarily dismissed if the ultimate fate of the proceeding depends upon disputed questions of fact that could be established by evidence yet to be adduced or tested.' (emphasis added) It is not usual that a VCAT hearing for summary dismissal would involve the calling of evidence.
2. In any event, the respondents' solicitor filed an affidavit from which the applicant was able to identify the other social media posts that formed the basis of these statements in his application and thus those posts were also 'in evidence'. The respondent having filed such evidence does not require the applicant to file evidence to join factual issue.[4]

SHOULD VCAT PROVIDE THE ADVISOR AN OPPORTUNITY TO RESPOND TO THE ALLEGATIONS?

1. Counsel for the respondents argued that the allegation made about the inclusion and diversity advisor is serious and therefore 'the Tribunal ought not ... make a finding in respect of an individual, even on a preliminary basis, without their opportunity to respond'. And:

MS DAVERN: - - - you ought not make a finding that she said anything other than that [the 7 October 2023 statement]. Because there's no evidence other than a bold assertion. And to make such a finding, even on a prima facie basis that she has said those things, posted those things, without the full context of whatever post they are, or without any opportunity to be involved in these proceedings - - - would be very damaging to any person.

1. Counsel referred to Ashby v Slipper[5] and the Lehrmann[6] case regarding the necessary care and caution that must be taken before making findings in relation to an individual that would expose them to opprobrium and scandal, bringing a person into disrepute, and seriously destroying their reputation. I noted that both cited decisions are substantive decisions. This is a preliminary proceeding and my only decision is whether the applicant has an arguable case. That does not involve me making any finding about the advisor or her actions. The determination of an application under section 75 does not 'contemplate a detailed consideration of the evidence'[7] and is 'not a mini-hearing on the merits'.[8]
2. As Deputy President Dwyer noted in Morrison v Stonnington,[9] forming an opinion that a matter should proceed to a hearing in no way establishes a 'de facto validation of the substance' of the proceeding. Further, my decision to allow the matter to proceed to hearing does not give any indication of the ultimate outcome after there has been a hearing on the merits.[10]
3. At the hearing, and now, I reject that any finding dismissing a summary dismissal application could have the stated effect or that I am limited in my ability to find that there is an arguable case because the advisor has not had an opportunity to respond.

1. The respondents urge a plain reading of the social media posts and the media statement. They say that the statements do not reach the very high bar of racial vilification. Counsel relied on relevant authorities to highlight the difference between saying something that is antisemitic and actions that amount to vilification.
2. The applicant says that the reading of posts and the media statement should be taken in light of the advisor's public profile and appointed position, the effect of her statements on a community with a long history of persecution, and the role of the respondents in protecting the whole community against fire and recent arson attacks on Jewish institutions.
3. Whether the actions of the respondents and their advisor reached the high bar that constitutes racial vilification is a matter of interpretation and degree. The applicant's arguments, when properly understood, are not abjectly hopeless, and he ought to have the opportunity to argue them at a hearing. I am satisfied that the applicant has articulated a justiciable case that is not frivolous, vexatious, misconceived or lacking in substance.

1. The respondents argued that the applicant is using the process for purposes of advocacy. The applicant readily agrees. The respondent argued that the legislation is not to be used for advocacy and that is an abuse of process.
2. The onus of proving an abuse of process is a heavy one and an order that a proceeding is an abuse of process is only to be exercised in exceptional circumstances where the applicant is using the proceedings for an improper purpose. In Goodrich v Racing Victoria Racing Appeals and Disciplinary Board[11] the Court stated:

The question whether the purpose of bringing a proceeding is improper must be assessed in the context of statements in the authorities that the legitimate purpose for bringing a proceeding is the protection or vindication of particular legal rights or immunities.

There is a distinction between bringing proceedings to a successful conclusion, so as to take advantage of an entitlement or benefit which the law gives the litigant in that event, and bringing proceedings when the purpose is not to prosecute them to a conclusion but to use them as a means of obtaining some advantage for which they are not designed or some collateral advantage beyond what the law offers.

1. Discrimination and vilification laws have long been used for advocacy purposes. Many important decisions and clarifications of discrimination and vilification laws have resulted from advocacy-based litigation, even when the applications fail.[12]
2. The respondents have not discharged their heavy onus to show that the applicant has any improper purpose in bringing the proceedings or that he is seeking some advantage other than the protection or vindication of particular legal rights.

1. The first respondent argued that the Fire Rescue Victoria Act 1958 (Vic) provides him immunity under section 17. The applicant argues that the immunity under section 17 is limited to Fire Rescue Victoria's functions that relate to emergency powers, not to administrative communications issues.
2. This is a defence that should be tested at hearing and section 17 is not so obviously applicable to the issuing of a media statement that I should strike out or dismiss the claim against the first respondent.

1. At the start of the hearing, the applicant complained of late notice regarding a list of authorities and asked for more time to research and respond to those authorities, suggesting an adjournment of the proceeding. We had this exchange:

SENIOR MEMBER: I think, I mean, given the onus is on the respondent, and that's a fairly heavy onus, given the authorities around, you know, reluctance to strike-out if there's any arguable case - - -

MR GOLDBERG: Yes.

SENIOR MEMBER: - - - why don't we let them make their submissions today, refer to those authorities. And if I think they've reached that onus, then you could have time to prepare a written response on the basis of the authorities. But, I'm hoping, you'd be in a position to respond to what they say today, so I can hear both sides' submissions.

MR GOLDBERG: Yes.

SENIOR MEMBER: But then I give you an opportunity to have some days afterwards to make notes as to what those authorities - yes, whether those authorities have been misconstrued or are not relevant or if there's another part of the authority that - - -

MR GOLDBERG: Yes.

SENIOR MEMBER: - - - would elucidate an issue.

1. When the hearing concluded, I made some oral directions to facilitate the applicant making those submissions. I said:

SENIOR MEMBER: And I don't want repeat submissions on today. I just want you to comment on the authorities and how you say they are or are not relevant.

1. However, with the benefit of considering the arguments over night, I decided that the respondents had not discharged their onus and it was futile for the applicant to go to the effort and expense of making submissions about the authorities, which would require the respondents to respond. I issued the order cited at the opening of these reasons on Friday, 8 August 2025. Apparently, the respondents did not receive the order until Monday, 11 August 2025.
2. The respondents wrote to VCAT on 11 August 2025:

The Respondents also ask that they are urgently provided with a copy of the reasons of Senior Member Smith, so the Respondents can consider their rights in relation to a potential appeal.

1. The respondents wrote again to VCAT on 14 August 2025:

Are we able to please get an estimate on when we can expect to receive Senior Member Smith's reasons? I note the time period to appeal is running and the reasons are critical for the Respondents to consider their rights.

1. VCAT referred the respondents to section 117 of the VCAT Act. The respondents wrote yet again on 19 August 2025:

I refer to my emails of 11 and 14 August 2025.

The Respondents request that Senior Member Smith urgently provide the parties with the reasons for the order set out at paragraph 2(a) of her orders dated 7 August 2025 (Orders).

The Respondents are presently considering their rights to appeal and cannot do so without the Senior Member's reasons. Under the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the Respondents have only 28 days to seek leave to appeal a decision by the Tribunal. It has now been eleven days since Senior Member Smith has delivered her orders, which were not provided to the parties until 11 August 2025, four days later.

1. Each of these emails was brought to my attention by registry. On 22 August 2025, VCAT responded:

Please refer to section 148(4) of the VCAT Act. Although the Member assumed she would give a brief statement of reasons, VCAT will treat your correspondence as a request for a statement of reasons and time for appeal will run from the date that the statement of reasons is given.

1. I include this unusual correspondence for two reasons. First, to ensure that the respondents are not outside of time limits to appeal. Second, I would like the respondents' representatives to consider whether this form of correspondence is consistent with their professional obligations to the Tribunal and whether it is respectful and appropriate.

1. At its highest, the respondents' submission is that on the material currently before VCAT, the applicant may fail to adduce evidence substantiating an essential element of the complaint. As noted above in paragraph 3 above, that is not enough to invoke the section 75 power.
2. The application for summary dismissal is dismissed.

[1] Chopra v Department of Education and Training [2019] VSCA 298 at [134].

[2] [2020] VCAT 190 where he summarised the decision of Owners Corporation No. 1 PS537642N v Hickory Group Pty Ltd (Building and Property) [2015] VCAT 1683 and several of the authorities discussed in Pizer's 'Annotated VCAT Act' (6th ed.).

[3] There is no section 11. I presume this ground relates to section 17 of that Act.

[4] In Salvato v Dean et al (Human Rights) [2019] VCAT 819 at [36] SM Steele stated: The Third Respondent's choice to produce sworn evidence in support of its application does not require the Applicant to then produce sworn evidence in reply at a summary hearing. In another forum that might be the situation, but in this proceeding no orders were made requiring the Applicant to do so. The orders merely permitted 'any submissions'.

[5] [2014] FCAFC 15.

[6] Lehrmann v Network Ten Pty Limited [2024] FCA 369.

[7] Wood v Calliden Insurance Ltd [2008] VCAT 1339 at [15].

[8] Morrison v Stonnington [2011] VCAT 1325 at [14].

[10] See Hannah v Music and Mechanical Workshop Inc [2000] VCAT 415.

[11] [2020] VSCA 110 at [45]- [46].

[12] For example, Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92, Waters v Public Transport Corporation [1991] HCA 49; (1992) 173 CLR 349, I W v City of Perth [1997] HCA 30; (1997) 191 CLR 1, and X v Commonwealth (1999) 200 CLR 177.