Under section 75 of the Victorian Civil and Administrative Act 1998 the application is dismissed.

1. Mr Jovancevski made this claim as a direct application to the Victorian Civil and Administrative Tribunal, under section 122 of the Equal Opportunity Act 2010.
2. Mr Jovancevski's claim was that, between or about 2000 to 2004, he was discriminated against by the respondent, then called the LHMU. The LMHU became known as United Voice (Union) on 1 March 2011. Mr Jovancevski said that the respondent discriminated against him on the basis of the attributes of disability, physical features and religious belief, in the areas of goods and services and clubs. He said that the respondent failed to provide a service to him, although he was a member, and that this was discriminatory. He sought one hundred million dollars in damages.
3. The respondent applied under sections 75 and 76 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act) for the application to be struck out or dismissed.
4. I heard this application under sections 75 and 76 of the VCAT Act on 12 October 2012, and reserved my decision. In reviewing the documentation submitted that day, following the hearing, I identified a document dated 2 June 2003, addressed to the Equal Opportunity Commission and sent by Mr Jovancevski. For the reasons set out below, I sought further submissions from the parties about the effect of this letter, and, in orders made 4 December 2012 gave parties until 17 December 2012 to provide further evidence or submissions.

1. The issue arising from the letter dated 2 June 2003 is as follows. Mr Jovancevski wrote this letter to the Equal Opportunity Commission, as it was then called. He gave evidence on 4 December 2012 that he sent the letter, but said that he could not recall receiving a reply, and did not have a copy of any such reply. If this letter was received by the Commission, and was lodged as a complaint, and was not referred to the Tribunal under the Equal Opportunity Act 1995, then the Tribunal would not be able to deal with the application before it now. This is because section 194 (2) of the Equal Opportunity Act 2010 provides that a person may make an application to the Tribunal about an alleged contravention of the old Act (Equal Opportunity Act 1995) that occurred before the Equal Opportunity Act 2010 (new Act) commenced, if two conditions apply. These are that firstly, the person had not lodged a complaint under the old Act, and secondly, the alleged contravention would also have been a contravention of the new Act.
2. So if a complaint had been lodged in 2003, and not referred to the Tribunal under the old Act, the Tribunal would not have jurisdiction to consider this application now.
3. The issue therefore is this: did Mr Jovancevski lodge a complaint when he sent the letter dated 2 June 2003? For privacy reasons, the Victorian Equal Opportunity and Human Rights Commission was not able to provide this information to the Tribunal. Mr Jovancevski did not provide any further information to the Tribunal as to whether or not he had clarified the situation with the Commission.
4. The letter was sent; that much was clear. I do not know whether or not the letter was received at the Commission, and lodged as a complaint. Under these circumstances I am not satisfied that this occurred, and so find that I can consider this application. I find that it is more probable than not that the conditions set out in section 194 (2) of the Equal Opportunity Act 2010 are met, and that the section applies to this application.

The respondent's application for the proceeding to be dismissed under sections 75 and 76

1. Section 75 of the VCAT Act gives the Tribunal a discretion to dismiss or strike out a proceeding whether or not all the evidence has been heard. It can do so if in its opinion all or part of the proceeding is frivolous, vexatious, misconceived or lacking in substance, or is otherwise an abuse of process. There have been many cases about section 75.[1]
2. If the Tribunal is not satisfied that, on one of the grounds set out in the section, the case is untenable and cannot succeed, then the matter should go to a hearing so the applicant has the chance to have the complaint heard and so the evidence can be tested in the usual way. When the high bar set out above is not reached, and there is simply a dispute between the parties as to the complaint, the matter should go to hearing.
3. Section 76 of the VCAT Act gives the Tribunal a discretion to dismiss or strike out a proceeding for want of prosecution, whether or not all the evidence has been heard. Schedule 1 of the VCAT Act makes particular reference to this section with respect to the Equal Opportunity Act 2010. This is discussed below.

Evidence from and submissions on behalf of United Voice

1. Mr McKenna, for United Voice, submitted that there had been an excessive delay in bringing the application, and that to hear the application now would cause significant prejudice to the respondent. Dr Paul Sutton, Union Official, provided a statutory declaration stating that he had searched the respondent's database for information that might assist in responding to the application. As a result of his investigations, he described three categories of documents that related to Mr Jovancevski. Most records related to a WorkCover claim in 2001 and 2002. The official who assisted Mr Jovancevski was no longer employed by the respondent. The second category of records related to complaints Mr Jovancevski made about his employer in 2003. The official who assisted Mr Jovancevski was no longer employed by the respondent. The third category of records related to complaints made by Mr Jovancevski against the respondent. The officials who were involved in this matter were no longer employed by the respondent, and one was no longer a resident of Victoria.
2. Mr McKenna submitted that the application should be dismissed summarily because of:
   • the seriousness of the allegations,
   • the excessive delay
   • the lack of any reasonable explanation for the delay,
   • the fact that the people involved were not readily available and would be likely to have little recollection of long ago events.

1. Mr Jovancevski said that his application was late because he had not been well since 1985. He said that he did not wish to provide any further information about his health issues. Mr Jovancevski also said that he had not known the steps to take to bring an application to the Tribunal. He said that he was not provided with information about his rights, or what he could do to bring a claim of discrimination. He said that it would not be fair for him to be punished for not knowing the law.

1. In Garcia v Miles and Anor (Anti Discrimination (2012) VCAT 262 1 March 2012 Senior Member McKenzie said, referring to an earlier decision she had made, [2] that:

...in determining whether delay in lodging a complaint would amount to an abuse of process, the primary consideration was the interests of justice. Relevant factors to be considered included whether the delay was inordinate and unreasonable or inexcusable, any explanation for the delay and its adequacy, the nature of the proceeding, whether and to what extent the respondent was responsible for delay, prejudice to the respondent if the proceeding were to continue, the public interest, and the effect of the delay on the quality of justice (for example, whether the ability to conduct a fair hearing would be affected, whether the recollection of witnesses is likely to have faded, the extent to which delay would compromise the quality of evidence, whether key documents might have been lost or destroyed, and whether key witnesses might have become unavailable). All of these factors must be balanced against each other and no single one is determinative.

1. I have considered, and balanced against each other, all these factors in this case. The delay is considerable. The incidents were alleged to have occurred between twelve years and seven and a half years prior to the application. I am not satisfied that there is a reasonable explanation for the delay. I accept Mr Jovancevski's statement that he was not well, though he did not wish to provide evidence as to this, and also that he was not fully aware of his rights. It appears, however, that Mr Jovancevski was able to engage in lengthy correspondence, including, for example, in his letter to the Commission dated 2 June 2003. He was able to actively advocate for himself in this correspondence. There is no evidence that the respondent was in any way responsible for the delay. The recollection of the witnesses is likely to have faded, witnesses may not be available, and documents may no longer be available. On balance, I find that the interests of justice are not served by allowing this claim to be brought after this inordinate delay. I am satisfied that the application amounts to an abuse of process in accordance with section 75 of the VCAT Act.
2. Clause 18 of Schedule 1 of the VCAT Act gives the Tribunal a discretion to make an order under section 76 of the VCAT Act. Clause 18 of Schedule 1 states that the Tribunal may make an order summarily dismissing an application made under the Equal Opportunity Act 2010 in respect of an alleged contravention of Part 4, 6 or 7 of that Act (my emphasis) if the alleged contravention occurred more than 12 months before the application was made. It appears that Mr Jovancevski's allegations are of contraventions of the 2005 Act, not the 2010 Act. In any event, as I am satisfied that the grounds exist to dismiss the application under section 75 of the VCAT Act I have not addressed the question of whether or not this discretion applies. There is no need to do so.
3. Under section 75 of the VCAT Act I make the order set out at page 1.

[1] The cases include the following_: State Electricity Commission of Victoria v Rabel & Ors_ [1998] 1 VR 102; and the decisions of VCAT - Norman v Australian Red Cross Society (1998) 14 VAR 243; Towie v State of Victoria [2002] VCAT 1395; and Naylor v Oakley Thompson & Co Pty Ltd & Ors [2008] VCAT 2074.

[2] Burrows v State of Victoria (2002) VCAT 1655