The matter did proceed on that day by a telephone link up with both the complainant and respondents and their representative in Ballarat.

At that hearing on 26 November I had before me all of the material referred to above, that is the parties written submissions and all annexures. The oral submissions were made by Mr Brian McCormick solicitor for the respondents (the applicants for the order to strike the matter out) and in response by Mr Hannah himself.

The relevant legislation is found as follows; the Equal Opportunity Act 1995, Sections 6, 8, 9, 14, 96, 97 and Section 102 and Victorian Civil and Administrative Tribunal Act 1998 Section 75.

3. Applications under Section 75 of the VCAT Act

Section 75 of the VCAT Act permits the Tribunal to dismiss strike out all or any part of a proceeding that, in its opinion, is frivolous, vexatious, misconceived, lacking in substance or an abuse of process. The order may be made on the application of a party or on the Tribunal's own initiative. If the Tribunal makes an order of this kind, it may also make an order to compensate any other party for costs, expense, loss, inconvenience or embarrassment resulting from the proceeding. The onus is on the applicant to satisfy the Tribunal that the grounds of the application are made out.

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Opportunity Act 1995 and which, in turn, is similar to the power gave in s44C(1) of the Equal Opportunity Act 1984 (now repealed).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.

* The application is for the summary termination of the proceeding. It is not the full hearing of the proceeding.

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

* If the Complainant indicates to the Tribunal that the whole of his or her case is contained in the material placed 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 or 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.

* 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. 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.

* 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.

* 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 it makes.

* 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.

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

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

* 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.

* 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 be proved before a Complainant can substantiate the complaint at a full hearing, then the Tribunal would be entitled to terminate the complaint summarily.

* 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 and Anor, ADT of Vic, 30 September 1997).

The differences between ss109 and 75 have been considered in Norman v Australian Red Cross Society (ADT Vic 27/11/98). The Tribunal held that it should continue to follow the test laid down by the Court of Appeal in Rabel's case.

4.1 In summary the submissions made on behalf of Mr Baker and the Music and Mechanical Workshop for an order under Section 75 of VCAT are as follows:

* Section 75 of the Act is satisfied because in broad terms the complainant's case must fail for any or all of the following points:

* The allegations of discrimination are all denied.

* The proceedings are an abuse of process. Mr Hannah is a vexatious litigant and has pursued claims in a number of venues including the Industrial Relations Commission, and through a number of complaints processes, all to no avail.

* The complainant's delay in lodging proceedings has rendered the complaint stale.

Specific Attributes on which discrimination is alleged to have been founded

* Age. The complainant has not put forward and can put forward no evidence to support discrimination on the grounds of his age (youth). He was specifically chosen to participate in the program because of his age and any comments made regarding his age compared with other participants in the program were either of a positive nature or comments on the extent of his experience rather than his age.

* There is no evidence put forward on which the complainant's allegations can be founded and on the other hand there is evidence to show that a departure package was negotiated with his union which was more favourable to him than his strict entitlements.

* There is no evidence alleged and can be no evidence to found a complaint on these grounds. The fact that a Workcover claim made by the complainant was duly rejected is not discrimination and there is evidence of positive steps taken to support the employee in what was seen as a stressful situation by the employer.

* Reliance was placed on Mr Baker's affidavit. The submission was that the claim of victimisation was denied and that there was no evidence on which it could be supported. The complainant had not been treated less favourably after he voiced his complaints to his employer and his complaints had been given proper consideration and response.

4.2 The complainant's submissions in reply are summarised broadly as follows:

The complainant's material is voluminous and covers a wide range of his concerns however it is extremely difficult to tease out from it the pertinent issues and relate them to the grounds of complaint which are covered by the Act.

* The material before the Tribunal is not a complete statement of the evidence on which the complainant would rely.

* The application was made a little more than 12 months after his resignation because Mr Hannah had been ill, was uncertain as to his rights and he had employment elsewhere for some of the time. The shortness of the delay has not prejudiced the respondents.

* Training opportunities were denied to Mr Hannah on the grounds of his age and other, older participants in the program received training which he was denied. Safety clothing was not issued generally to the youths involved in the program.

* Mr Hannah submitted that his involvement with his union regarding his complaints and the funding problems for the workshop, lead to different duties being offered to him. He subsequently resigned. Thus his union activities resulted in his loss of employment.

* Mr Hannah submitted that in December of 1997 and subsequently complaints made by him lead to comments made to him by Mr Baker and others which amounted to a threat of loss of employment.

* Mr Hannah submitted that comments made by Mr Baker in March of 1998 and the pressure put upon him to execute a new contract allegedly because of the funding pressures on the workshop in April of 1998, were discriminatory because he was suffering from stress and had been lied to about the proposed closure date of the workshop**.**

* The complainant alleges discrimination in employment on the basis of age, disability and industrial activity and victimisation in his employment because of complaints made by him regarding the other grounds.

The complainant must satisfy the provisions of Sections 8 and 9 and sections 14 and 97 of the Act. He must be able to show not just that he was less than satisfied with some aspects of the way in which the program was operated, or that he did not like Mr Baker, or the way Mr Baker spoke to him. He must show discrimination against him which is covered by the Act.

* The complainant does not concede that all material presently on the file represents the entirety of evidence on which he would rely on a hearing on the substantive merits of the case but identified only one witness, a Mr Gaylard from the Australian Services Union who it was said would be a witness to some of the circumstances surrounding Mr Hannah's resignation from the workshop.

The Equal Opportunity Act 1995

* Section 6 of the Act sets out the attributes on the basis on which discrimination is prohibited in employment (amongst other activities). These attributes include:

Section 8 of the Act describes direct discrimination as occurring

"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".

Section 9 describes indirect discrimination as occurring 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

Sub-section 2 of Section 9 deals with whether or not a requirement condition or practice is reasonable. It

"depends on all the relevant circumstances of the case including:

(a) The consequences of failing to comply with the requirement condition or practice

(b) Cost of alternative requirements, conditions or practices

(c) The financial circumstances of the person imposing or proposing to impose the requirement, condition or practice.

Part 3, Division 1 of the Act deals with discrimination in employment.

The employer must not discriminate against a person in determining who should be offered employment or the terms under which employment is offered or by denying a person access to a guidance program, apprenticeship training program or other occupational training or retraining programs. An employer must not discriminate against employees after their employment by denying or limiting access to opportunities for promotion, transfer or training or other benefits connected with the employment or by dismissing the employee or otherwise terminating employment or by denying the employee access to a guidance program, an apprenticeship training program or other occupational training or retaining program or by subjecting the employee to any other detriment.

The complainant must therefore show that because he had one or more of the attributes on which he relies, he was treated less favourably than a person without those attributes (or any of them) in the same or similar circumstances or that the employer unreasonably imposed requirements or conditions upon him that someone with the relevant attributes could not comply with or that most people with those attributes could not comply with. He must show that such requirements or conditions as were imposed were unreasonable having regard to the relevant circumstances of the case including costs of alternative requirements, the financial circumstances of the employer and the consequences of failing to comply with the requirement or condition.

Section 97 of the Act describes victimisation. Victimisation according to that provision arises if a person is subjected to or is threatened to be subjected to any detriment because of action taken under the Act (the Equal Opportunity Act 1995) or because of an allegation which has been made activities of a kind which could be a contravention of the Act. The complainant here would have to prove that the nature of the complaints he made in December 1997 related to activities which could have been interpreted as being discrimination in employment rather than general complaints about conduct of the work place or personal differences. He would then have to show that as a result of making those complaints, he was subjected to a detriment or treated less favourably than others who did not make such complaints.

The Tribunal must follow the test set out decision in Rabel, applied in De Vos v Kingston City Council to determine the success or otherwise of an application under Section 75 of the VCAT Act. The Court of Appeal in Rabel looked generally at the intention of the section (Section 109) and the meaning of the words "frivolous", "vexatious", "misconceived" and "lacking in substance" as a whole. The Court likened the application to strike out a complaint to an application under Order 23 of Chapter One of the Supreme Court Rules, to summarily terminate a proceeding. The intention of the provisions is to prevent abuse of the Tribunal's process. The Court set out a different and more stringent test than had previously been applied. It held that a complaint will be frivolous, vexatious, misconceived and lacking in substance if it so hopelessly, so clearly untenable, so unsustainable in fact or in law that it should not proceed to a hearing and should be summarily terminated. Tadgel JA used the words "obviously hopeless or obviously undeserving of relief". He expressed the view that a complaint would be properly struck out if "no reasonable view of what a complainant desires to advance as a case would justify relief under the Act". Ormiston JA said that it must be "very clear indeed that the action is "absolutely hopeless" or "so clearly untenable that it cannot possibly succeed" or that the complaint must "be undoubtedly shown to be hopeless".

In De Vos, the Tribunal summarised the test to be applied as whether the complaint was "obviously hopeless or on no reasonable view would justify relief" or the complaint is "obviously unsustainable in law or in fact, ... or is obviously untenable ... or undoubtedly hopeless". The Tribunal expressed the view that this would include but would not be limited to situations where a complaint disclosed no reasonable cause of action or where the respondent could show a good defence sufficient to warrant the summary termination of proceedings.

The fact that an application to strike out a complaint may fail in whole or in part does not of course indicate anything of the ultimate outcome of the complaint at a hearing on the merits. That would depend on the evidence presented at the hearing and whether after hearing the submissions and considering the evidence, the Tribunal considered the complainant had discharged the onus on him or her of proving the complaint on the balance of probabilities. Even if a complainant succeeds, an appropriate remedy may not be practical or available or the complainant may not be able to show any loss or damage arising from the discrimination. The fact that at the time of hearing a strike out application the evidence so far available is or appears to be insufficient to discharge that onus is not, in all cases, grounds for striking out the application. The Tribunal has previously pointed out that the fact that the respondent disputes assertions made by the complainant does not automatically discharge the respondent's onus of satisfying the Tribunal that the application (to strike out) should succeed. It does not mean that the complaint is unsustainable in fact. The fact that issues are in dispute may be a clear indication that the matter is appropriate for a full hearing where evidence can be called and tested.

It has also been argued that a complaint is vexatious or an abuse of process if the person making it has previously complained in another arena or forum about the same issue. For example a complaint to the Ombudsman was made in the case of Al Hakim v Monash University and to the Administrative Appeals Tribunal for a review in Rein v The Nurses Board of Victoria and Owen v Department of Human Services and Others. These arguments have generally been rejected on the basis that proceedings were in fact of a different nature or considered different issues or sought different relief. The mere fact that a complaint has been the subject of an investigation or review process by the employer against whom the complaint is made, will not satisfy the test of showing an abuse of process or that proceedings are vexatious. The very circumstances, conduct and outcome of the employer's review may be the subject matter of part of the complainant's application. In this case the respondents listed a number of other Tribunals or agencies to which Mr Hannah has complained or sought relief since his resignation. The pattern of complaints does show that Mr Hannah is from time to time very taken up with his views of the treatment he alleges he received from the respondents, but, by itself does not amount to vexatious litigation. On the other hand the respondents have been put to expense through lost time and obtaining legal advice which is significant for what is (or was) an agency involved in the provision of a community service, dependent primarily upon government funding for its survival. The Workshop has been closed since March of 1999 and the Committee of Management was formally dissolved in June 1999, through lack of funds,.

The respondent's have submitted that the Tribunal take into account the delay between the time when the complainant resigned from his employment and the lodging of the complaints. Although under Section 108(1) the Commission may decline to entertain a complaint if it considers that it relates to an alleged contravention that took place more than 12 months before the lodging of the complaint (Section 108)(1)(c), the Tribunal itself is not so limited. The `delay' is not the period between 12 months from the resignation and the lodging of the complaint but the whole period elapsed between the resignation and the complaint.

In Hines' case (ADT of Vic 31 December 1996) and Gaweda's case (ADT of Vic 29 Nov 96) the Tribunal in the light of these provisions in the Equal Opportunity Act 1995, has doubted whether the delay in lodging a complaint can alone form the basis to strike out a complaint as lacking in substance. It has said that excessive and unexplained delay might be a factor to be taken into account in determining lack of substance, if the Tribunal has first come to the view that the allegations in the complaint are of a trivial nature. In this case Mr Hannah has given a number of reasons for the delay in issuing a complaint to the Equal Opportunity Commission. Apart from the fact that he was otherwise employed for at least part of the time, they are reasonable and relevant, if time in fact. However, the delay of a period of more than 12 months, during which time Mr Hannah was able to take other courses of action in relation to his complaints must be looked at as part of the overall case. Having regard to the fact that for practical purposes the Agency has been defunct since June of 1999 at the latest, and had closed its operations in March of 1999, the complainants delay in acting in this jurisdiction has resulted in a situation where any remedy he may seek - which remedy is not clearly defined in his material, - is probably unavailable in practical terms, and the respondents are placed in an invidious position in dealing with the allegations of events now approximately two years old and in meeting any possible claim.

I find that the material relied upon by the complainant although massive, does not in fact disclose sufficient or real substance to justify proceeding to a full hearing in relation to the complaints alleging discrimination or victimisation. Mr Hannah refers to events, or his belief as to events or behaviour which he did not like, or which he thought were unfair. He had views as to how the program operated by the Agency should run which were to some extent different from the Agency's practice. Those issues do not amount to incidents of discrimination. It is with difficulty that the complainants material can be sifted to produce even a partially clear allegation of behaviour which is in fact covered by the Act. Many of the complaints raised by Mr Hannah do not fall within the provisions of the Act, were not alleged even to have been directed against him or are of a trivial nature. Furthermore, having regard to the time which elapsed from his resignation in April of 1998 to the lodging of his complaint in May of 1999, and the intervening activities undertaken by Mr Hannah to pursue complaints in other forums, the respondents are now prejudiced by continuing these proceedings. The status of the Music and Mechanical Workshop is also relevant to these considerations. It has no continued legal existence and no successor in title and apparently no funds. I find that the chance of Mr Hannah succeeding on any of these complaints against either the Mechanical and Musical Workshop or Mr Baker is hopeless and on no reasonable view can justify relief.

Consequently I order that the complaints lodged by Mr Hannah on 4th and 5th May 1999 against the music and mechanical workshop and Mr Wayne Baker be struck out pursuant to Section 75 of the Victorian Civil and Administrative Tribunal Act 1998.