1. On 17 December 2013, the Tribunal received an application to the Human Rights List from Mr Harry Kyriakidis. The application was in respect of alleged discrimination by Constable Lisa McDougall, who was described as an arresting police officer. In these proceedings, the respondent is named as the State of Victoria (Victoria Police). The application was brought pursuant to the Equal Opportunity Act 1995 (Victoria) ('EO Act').
2. In his complaint, the applicant stated that he was discriminated against because of a disability. In the original application, he did not nominate a particular area in which the alleged discrimination occurred, but in his Particulars of Claim dated 28 February 2014, he alleged that indirect discrimination had occurred against him in the context of services being provided to him by the police.
3. The events to which the complaint gave rise were alleged to have taken place on 5 February 2010 at the Moonee Ponds Police Station. The applicant had been arrested by the police at which time he claimed that he was sick, unwell and having a panic attack. He stated that repeatedly asked for a doctor and alleged that the arresting officer ignored his request. He was particularly upset at the alleged conduct because there was a note written at the time of the arrest in the notes by the arresting officer observing that he had "possible psych issues". He was of the view that this should have put them on notice as to his disability. Further, he alleged that he was held in police custody and interviewed for a period of some hours without any medical or other professional attention or assistance.
4. In support of his application, the applicant filed with the Tribunal copies of what appear to be the notes of the arresting officers taken at the time of his arrest, a letter from a consultant psychiatrist dated 22 March 2011 and letters from his GP. These letters advised that the applicant suffered from stress and required ongoing treatment, it was said as a result of his experiences at the time of his arrest by the police.

1. On 3 April 2014, the respondents made an application pursuant to section 75(1) of the Victorian Civil and Administrative Tribunal Act 1998, to strike out the Applicant's claim. For purposes of clarity in these reasons, I will continue to refer to the applicant and respondent in those terms, notwithstanding that the present application was brought by the respondents.

1. The primary reason given for the respondent's application was that the alleged conduct forming the basis of the applicant's claim did not constitute the provision of a "service" for the purpose of the EO Act.
2. The respondent also submitted that the conduct complained of by the applicant could not constitute unlawful discrimination in breach of the relevant provisions of the EO Act, and further, that there had been significant delay in bringing the claim, which constituted an abuse of process. It was also submitted that the Particulars of Claim of the applicant were vague and embarrassing so as to prevent the respondents from properly responding to the claims against them.
3. On 7 July 2014, the respondent filed material in support of its application, which set out in further detail the basis for the application pursuant to section 75 of the Victorian Civil and Administrative Tribunal Act 1998 and the respondent's submissions in support.
4. In response, the applicant provided further material to the Tribunal in support of his claim. This included a letter from a treating GP, a series of documents in relation to an application for a family violence intervention order, and statements by the applicant detailing some apparent efforts to communicate with the police who had been involved in his arrest. He also handed up to the Tribunal at the hearing of the application further documentation, which included handwritten statements setting out the grounds upon which he believed the present application should not succeed. He also included an affidavit from Family Court proceedings in which he set out further the reasons he believed the police had discriminated against him. By way of these documents, he submitted that the police had put the wrong address in some of his court documents, and it seemed that this was to support his claim that they acted in a discriminatory manner.
5. At the hearing of the application the primary submission of counsel for the respondent referred to the applicant's claim as being based upon the actions of arresting police officers, and was made pursuant to sub-ss 42(1)(b) and (c) of the EO Act. As such, the claim relates to "services" provided by the police in carrying out the arrest. The submission of the respondent was that in arresting an individual as claimed by the applicant, and in carrying out the various actions in relation to the arrest, the police were not providing a "service" within the meaning of the EO Act.
6. Counsel for the respondent directed the Tribunal to a number of authorities which deal with this point, some of which I will refer to below.
7. In reply, the applicant stated that in his submission if someone is unwell then the police have a duty of care, especially in these circumstances when, he submitted, they were aware that he had a mental illness and was unwell at the time of the arrest. He told the Tribunal that he had suffered great stress since the arrest incident occurred and had at times been homeless (it was presumed as a result of a family violence intervention order which had been made). With respect to the respondent's submission that the police did not provide a "service" under the meaning of the Act, the applicant stated that the police had not provided him with a service, and that they had had an obligation to do so knowing that he was a disability pensioner. His submission seemed to be that the arresting police should have been providing him with services in the form of medical attention and professional assistance and failed to do so.

1. Section 75 gives the Tribunal 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.
2. There have been many cases about section 75 and the law about how to approach the section is clear.[1] The Tribunal is required to exercise caution before summarily terminating a proceeding. It should only do so if the proceeding is obviously hopeless or 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 an application 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. If the applicant indicates to the Tribunal that the whole of his or her case is contained in the material before the Tribunal, the Tribunal may consider whether, on all of that material, there is a real question of substance, which should go to a full hearing. However, where an applicant indicates that there is other evidence to be called, unless that evidence is heard, the Tribunal cannot determine the application on the basis of the material then before it.[2]
3. If the Tribunal is not satisfied that the proceeding should be summarily dismissed, 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.
4. In considering an application under section 75, the Tribunal must take the applicant's case at its highest. For a matter to be struck out, the respondents must show that there is no arguable case, which should proceed to a full hearing to be heard. Therefore, I am conscious of the fact that striking out a case should only be done with caution.
5. In the present case, the provision of further evidence by the applicant will not assist him in responding to the submissions of the respondents. The determination of the application will turn upon whether the police, in arresting the applicant and in their subsequent actions, were providing a "service" to him, as defined in the EO Act. If the applicant's claim does not meet the criteria set out in the Act in which a claim can be made, then it cannot succeed.

1. "Services" are defined in section 4 of the EO Act as including "without limiting the generality of the word"

services provided by a government department, public authority, State owned enterprise or municipal council

1. It is clear that police generally would be considered as part of that class described in 4(f). As to whether their activities constitute a "service" has been considered in a number of cases, involving alleged discrimination by members of the police force. In the case of Rainsford v Victoria[3], a decision of the Federal Court, Sundberg J, at 17, made a distinction between various government functions and stated the proposition that not all government functions are services. The relevant question was whether the acts constituting the service were helpful or beneficial to the relevant class of persons to which the person alleging discrimination belongs. The acts of an arresting police officer would not be characterised as being helpful or beneficial to the individual being arrested.
2. In another decision of the Federal Court, Robinson v Commissioner of Police[4] , the Court discussed the need, in deciding whether to characterise an activity as a "service" to focus on whether the services are being provided or refused to that person in particular - that is the person claiming discrimination. It has been acknowledged in several of the cases that there are circumstances in which it could conceivably be argued that the police do provide services in the sense envisaged by the EO Act, such as to victims of crime, as referred to in the case of Farah v Commissioner of Police[5]. This distinction was approved in a decision of this Tribunal[6]. In this particular case, the Tribunal went on to dismiss the claim alleging that police were involved in a conspiracy against the applicant. The Tribunal held that in fulfilling their duty to investigate crime, the police do not provide a service to any individual.
3. In the present case, in light of the above authorities, it is not possible to construe the activities complained of by the applicant as "services" being provided to him, and I respectfully agree with the conclusions on this point in these cases. However, even approaching the term "services" in its everyday meaning, it does not seem possible to characterise police activities, as complained of by the applicant as fitting into this definition, even as they may be services to the community at large.
4. The submission of the applicant appears to have been that the police in these circumstances should have provided him with the services, which he claimed to have needed at the time. This is not a question that the Tribunal can consider in proceedings brought under the EO Act, as it does not fall within the particular circumstances in which discrimination is proscribed under the Act. The Act does not purport to eliminate discrimination generally, but only that which occurs in the circumstances specified in the provisions of the Act.
5. It therefore follows that the applicant's claim cannot succeed as it is misconceived. The application made by him on 17 December 2013 is dismissed and the respondents' application to dismiss is successful.
6. In light of this decision, the further submissions by the respondent in support of its application need not be considered further.

[1] The cases include the following: State Electricity Commission of Victoria v Rabel & Ors [1998] 1 VR 102; Norman v Australian Red Cross Society (1998) 14 VAR 243; Towie v State of Victoria [2002] VCAT 1395; Forrester v AIMS Corporation [2004] VSC 506; Naylor v Oakley Thompson & Co Pty Ltd & Ors [2008] VCAT 2074.

[3] [2007] FCA 1059; (2007) 167 FCR 1

[4] [2012] FCA 770

[5] [1998] QB 65

[6] Meret Field v State of Victoria - Department of Human Resources, [1999] VCAT 616, at paragraph 12