MEDIUM NEUTRAL CITATION: [2002] VCAT 733

1. Application pursuant to s.75 of the VCAT Act 1998 by Respondents Mike Green and Andrew Tallentyre dismissed and they remain as Respondents.

2. Application pursuant to s.75 of the VCAT Act 1998 by Respondents Cummins Inc, Steve Chapman and Tim Solso upheld and proceedings against them struck out.

For the Applicant: Mr M Irving instructed by Ryan Carlisle Thomas

For the Respondent: Mr D Galbally QC with Mr P Burchardt instructed by Browne and Co.

1. This is an application by various of the respondents to have a complaint against them pursuant to the Equal Opportunity Act 1995 summarily dismissed or struck out pursuant to s.75 of the Victorian Civil and Administrative Tribunal Act 1998. The respondents in question are Messrs Green and Tallentyre and what could be referred to collectively as the American respondents, namely Cummins Inc, Steve Chapman and Tim Solso. No such application is made on behalf of Cummins Engine Co Pty Ltd or Gino Butera.

2. The background to this application is to be found in employment. Ms Klona claims that she has been discriminated against, essentially on the grounds of sex and of lawful sexual activity, in an employment situation. She alleges her employment was terminated following the discovery that she was having an affair with one Mr Gordon Lea, an executive with the same employer. There is no argument but that her employer at all relevant times was Cummins Engine Co Pty Ltd. She was not employed by Cummins Inc, which is an American entity, and the "owner" of Cummins Engine Co Pty Ltd, which is incorporated in Australia. The alleged discrimination took place in the State of Victoria. Green, Tallentyre and Butera are employees of the local or Australian entity. Solso resides in the USA and is the Chief Executive Officer of Cummins Inc. Chapman also resides in the USA and is Vice President International of Cummins Inc.

3. Mr Irving of counsel, on behalf of Ms Klona, directed me to various authorities as to the test to be adopted in relation to an application such as this. In particular, he referred me to decisions such as, State Electricity Commission v Rabel (1998) 1 VR 102 and Norman v Australian Red Cross Society (1998) 14 VAR 243. I accept that the onus is on the respondents to make out their case under s.75, and that caution should be exercised before summarily terminating a proceeding and that this should only be done if the proceeding is, amongst other things, obviously unsustainable in fact or in law. I also accept that it is the factual allegations that are to be assessed, rather than a consideration of the weight, accuracy or availability of any supporting evidence.

4. I say at the outset that I do not interpret these requirements as meaning that a bald allegation without any detail is sufficient. To simply allege, for example, "I was discriminated against by Cummins Engine Co Pty Ltd on the basis of sex", and complain of nothing more, would, in my view be insufficient. If Mr Irving is so arguing, and at one stage it appeared to me that he was, I am against him. To rule otherwise would be to render useless the provisions of s.75 of the VCAT Act. Whilst it is the allegation, as opposed to the evidence, that is important, the Tribunal is required to investigate whether or not s.75 operates - whether the proceeding is entirely or in part frivolous, vexatious, misconceived, lacking in substance or otherwise an abusive process. If it is sufficient for an applicant to complain by way of a bald allegation or by simply repeating the words of the Act, no "strike out" application could ever succeed unless there was a failure to complain or recite with accuracy. That in turn smacks of arguments concerning pleadings. With the exception of two affidavits to which I shall turn in a moment, this particular case proceeded solely on the basis of submissions which in turn related to the complaints of the applicant. These complaints, whilst repetitious, are detailed. In my opinion, it is necessary for me to look not just at the fact that a complaint or allegation has been made, but at the substance of the allegation, and assume that the facts in it can be proved, in arriving at a conclusion as to whether the proceeding is one which falls within s.75. It does not seem to me to be enough to recite, in a pro forma way, a type of pleading without any or any sufficient substance or detail.

5. In relation to the affidavits referred to above, these were sworn by Messrs Chapman and Solso and had been placed on the Tribunal file. Mr Irving argued that no reliance should be placed on these affidavits and that they should not be tendered, because no direction had been given concerning the filing or tendering of such material and because the deponents had not been available for cross-examination. Mr Galbally QC, on behalf of the respondents, confirmed that reliance was indeed placed upon the affidavits. Given that, pursuant to s.98 of the Victorian Civil and Administrative Tribunal Act, I can inform myself as I think fit, I do intend to include the affidavits amongst the material to be considered in arriving at a decision. However, I am certainly bearing in mind that the deponents have not been cross-examined and that their evidence is untested, and I reduce the weight to be attached to the affidavits accordingly. Each deponent essentially deposes that Cummins Inc does not interfere with or in any way directly control the day to day operations of Cummins Engine Co Pty Ltd and that each deponent had nothing to do with the termination of employment of the applicant and was not aware of it until after it had occurred.

6. I turn now to my rulings in this matter. I shall deal firstly with the "strike out" applications by Green and Tallentyre. In relation to Green, I am of the opinion that the application fails. Bearing in mind the test to be applied, and bearing in mind that it is allegations rather than evidence which are being considered, I am of the view that it has not been demonstrated by the respondent Green that the proceeding is obviously hopeless, obviously unsustainable in fact or law, or is bound to fail. I refer in particular to the allegations contained in paragraphs 5, 6, 7, 11 and 12 in addition to the general allegations.

7. In relation to the respondent Tallentyre the allegations seem to me to be more flimsy and perhaps relate to occurrences that are almost after the event, but, again bearing in mind the test to be applied, the application by the respondent Tallentyre also fails. I refer in particular to the allegations in paragraphs 17 and 18 in addition to the general allegations.

8. I turn now to the American respondents. In relation to them, arguments were advanced on two fronts. There are the arguments that could be described as relating to the merits. There is also the jurisdictional argument.

9. I shall now deal with arguments relating to the merits. In that regard, I shall deal firstly with the complaint against Cummins Inc.

10. It is to be remembered at the outset that these are complaints relating to discrimination in employment. Cummins Inc was not the applicant's employer. This was admitted by Mr Irving on behalf of the applicant, and understandably so. Cummins Inc and Cummins Engine Co Pty Ltd are separate legal entities, and it is the latter that employed the applicant. Accordingly, whilst, as I understand it, not abandoning any allegation of direct discrimination, the thrust of Mr Irving's argument as against Cummins Inc has its foundation in s.98 of the Equal Opportunity Act. That reads:-

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

"If, as a result of a person doing any of the things specified in s.98, the other person contravenes a provision of Part 3, 5 or 6, both persons must be taken to have contravened the provision and a complaint against the contravention may be lodged against either or both of them."

12. Mr Irving argues that the allegations, for the purpose of this application, establish that the behaviour of Cummins Inc falls within s.98, that as a result there was contravention by others of provisions of Part 3, 5 or 6, and therefore Cummins Inc must be taken to have contravened the provision.

13. I am against Mr Irving in relation to these submissions. If the substance of the allegations against the respondent Tallentyre were just sufficient to satisfy the test, in my opinion the substance of the allegations against Cummins Inc fall a considerable distance short of what is required. The complaint against Cummins Inc is essentially identical with that against the other respondents. The clear references to Cummins Inc within the complaint are few. Despite the argument of Mr Irving that, in paragraph 10 of the complaint, the reference to "reviewed" in the sentence "termination actions against myself and Mr Lea reviewed and supported by Senior Management at Cummins Inc" could mean a review before the fact of termination of employment, when read in context this is straining the plain language of the complaint to a degree which twists its obvious meaning. Mr Irving in argument emphasised that the complaints cannot be read as if they were legal documents and interpreted in a technical fashion. I agree with that. However, the plain reading of the complaint against Cummins Inc, particularly as set out in paragraph 10 of the complaint, makes it clear that any conduct by that entity which is there referred to occurred after the event of termination. This reinforces the matters deposed to in the affidavits of Chapman and Solso, even allowing for the reduced weight which they are given. This is so whether one is considering the behaviour of Cummins Inc through its servants and agents generally, or solely through Chapman and Solso. The only other clear or substantial reference to matters occurring in America seems to me to be that in the second last paragraph on page 5 of the complaint. There is there a reference to an alleged tape-recording discussion in which managers admit their discriminatory acts and confirm involvement of Chapman and Solso. I appreciate that I am to look at allegations and not evidence. However, this is simply too vague. Without entering into arguments about hearsay, it is not clear whether this allegation relates to discriminatory behaviour on the part of Chapman and Solso, and there is no identification of what such behaviour might have been, or when it occurred. I appreciate that evidence does not have to be produced, but this is altogether too remote and uncertain. Mr Irving referred me to the decision of Deputy President McKenzie in Norman v Australian Red Cross Society 14 VAR 243, and in particular at 248. Amongst other things, Deputy President McKenzie there said, "If the Tribunal is satisfied that a complaint lacks substance ... then the Tribunal would be entitled to terminate the complaint summarily". Whether that principle be applied or the test referred to earlier be used, it seems to me that the application against Cummins Inc, or for that matter against Chapman and Solso, should be struck out.

14. The allegations contain nothing of substance in relation to direct discrimination against the applicant. Turning to ss.98 and 99 of the Equal Opportunity Act, they contain no allegation of any substance that Cummins Inc, or for that matter Chapman or Solso, requested, instructed, induced, encouraged, authorised, or assisted any person to contravene the provisions of the Act. As for the requirements of s.99, the available material points in exactly the opposite direction - namely that any alleged contravention which may have occurred in Australia specifically did not result from any behaviour on the part of the American respondents. I am quite satisfied that, on the material before me, there is not even an allegation of any substance, if an allegation at all, that those in America knew of the termination of the applicant's employment until after the event. There is no allegation of any substance that they in any way breached the provisions of the Act.

15. Given the above ruling, I do not need to consider the argument concerning jurisdiction, which seems to me to present its own considerable complexities.

16. Accordingly, the applications of the respondents Green and Tallentyre for the "striking out' of the complaint against them are dismissed, and they remain respondents to the principal action. I uphold the applications of Cummins Inc, Steve Chapman and Tim Solso and, pursuant to the provisions of s.75 of the Victorian Civil and Administrative Tribunal Act, the application contained in proceedings No. A87/2002 are struck out.