(2) A person may make an application to the Tribunal under Division 2 of Part 8 about an alleged contravention of a provision of Part 3, 5 or 6 of the old Act that occurred before the commencement day if -

(a) the person did not lodge a complaint under section 105 of the old Act about the alleged contravention before the commencement day; and

(b) the alleged contravention, if proven, would have also been a contravention of a provision of Part 4, 6 or 7 of this Act, if this Act had been in force when the alleged contravention occurred.

1. For current purposes, I am satisfied that the claims brought under sections 103, 104, 105, 106 and 109 of the Equal Opportunity Act 2010 could have been brought under sections 96, 97, 98, 99 and 102 respectively of the Equal Opportunity Act 1995 (which I refer to as the old Act)and will refer to the provisions of the current Act.

RELEVANT SECTIONS OF THE EQUAL OPPORTUNITY ACT 2010

1. Section 103 of the EO Act prohibits victimisation and section 104 defines what is meant here by "victimisation". Relevantly, it provides:

(1) A person victimises another person if the person subjects or threatens to subject the other person to any detriment because the other person, or a person associated with the other person -

(g) has alleged that any person has contravened a provision of Part 4 or 6 or this Part, or Part 3, 5 or 6 of the old Act, unless the allegation is false and was not made in good faith;

(2) It is sufficient for subsection (1)(g) that the allegation states the act or omission that would constitute the contravention without actually stating that this Act, or a provision of this Act, has been contravened.

1. Thus, according to the EO Act, an allegation of sexual harassment said to have been made in the Applicant's book could be the subject of victimisation as described in section 104(g) and 104(2).
2. Section 105 of the EO Act provides:

A person must not request, instruct, induce, encourage, authorise or assist another person to contravene a provision of Part 4 or 6 or this Part.

If, as a result of a person doing any of the things specified in section 105, the other person contravenes a provision of Part 4 or 6 or this Part, a person may -

(a) bring a dispute to the Commissioner for dispute resolution; or

against either the person who authorises or assists or the person who contravenes a provision of Part 4 or 6 or this Part or both of those persons.

1. It is possible for a person to breach section 105 of the EO Act by encouraging or requesting someone to commit a breach, even if that second person does not go on to commit the breach. It is not a requirement of section 105 that a contravention by the person who is encouraged etc to contravene the EO Act actually occurs.[8]
2. It is not in my view possible (as further explained below) for a person to breach section 105 by retrospectively approving something which has already been done by another person.
3. Section 109 of the EO Act provides:

If a person in the course of employment or while acting as an agent

(a) contravenes a provision of Part 4 or 6 or this Part; or

(b) engages in any conduct that would, if engaged in by the person's employer or principal, contravene a provision of Part 4 or 6 or this Part -

both the person and the employer or principal must be taken to have contravened the provision and a person may bring a dispute to the Commissioner for dispute resolution or make an application to the Tribunal against either or both of them.

1. Taking all the Applicant's documents and her oral submissions into account and doing the best I can with that material, I understand that the Applicant's claim is as follows:

1. The Applicant says she was working with Mr Wilson in 2006 on a show concept intended for Circus Oz when the alleged sexual harassment occurred, and it was a breach of provisions in the EO Act prohibiting sexual harassment[9]. 2. Then, the Applicant claims, Mr Wilson victimised her in breach of section 104 of the EO Act by sending an email encouraging the industry to boycott her after she wrote a book which mentioned that incident[10].

1. Further, the Applicant alleges the First Respondent authorised and assisted that victimisation in breach of section 106 of the EO Act by failing to disassociate itself from Mr Wilson's email, in circumstances where he was an employee of the First Respondent and a member of the body corporate which owns or operates the First Respondent[11].

1. The Applicant alleges that the First Respondent generally authorised and assisted "ongoing victimisation" of her in breach of section 105 and 106 of the EO Act, by failing to disassociate itself from Mr Wilson's conduct, referring again to his employment with the First Respondent and his membership of the body corporate[12]. 2. The Applicant also alleges the First Respondent subsequently actively participated in the victimisation in breach of section 104 of the EO Act[13]. 3. The Applicant alleges that a report[14] commissioned by the Second Respondent (who was at the time the chair of the board of the First Respondent) from the Third Respondent was incorrect and that the First Respondent's acceptance of the report authorised and assisted further victimisation of the Applicant, in breach of section 105 (and possibly section 106) of the EO Act[15]. 4. The Applicant alleges the Second Respondent specifically commissioned the Third Respondent to prepare an incorrect report, that is authorised "ongoing victimisation" in breach of section 105(and possibly section 106) of the Act[16]. 5. The Applicant alleges the Third and Fourth Respondent authorised and assisted ongoing victimisation of the Applicant (in breach of section 105 and possibly section 106) by producing an incorrect report for the First Respondent[17]. 6. The Applicant says the report was incorrect for the following reasons: a number of details were wrong; it said the sexual harassment occurred in 2006, when it was actually 2008; it wrongly concluded the incident with Mr Wilson had been consensual, not sexual harassment; it wrongly concluded that Mr Wilson's email was "not wrong or inappropriate"; and it wrongly concluded that the First Respondent had acted "in a timely and appropriate matter at all times, including timely escalation of the complaint"[18]. 7. The Applicant also claims that the First Respondent is vicariously liable for the breaches of the EO Act committed by the Third and Fourth Respondents because they were the agents of the First Respondent[19].
2. It was not clear to me whether the Applicant claimed that the First Respondent was liable for Mr Wilson's alleged sexual harassment of her in 2006. The First Respondent denied it could be vicariously liable, so apparently read the Applicant's claim that way. This is a matter which can be clarified in the Applicant's amended particulars of claim.

1. Turning to the reasons why the Respondents say the claims should be struck out or dismissed, I have considered all their written and oral submissions.
2. The Respondents applications, made on 21 September 2018 for the First and Second Respondents and 24 September 2018 for the Third and Fourth Respondents, denied the allegations set out in the Applicant's original application form.
3. Once the Applicant's claim was set out in her particulars, dated 30 September 2018, further separate submissions were filed on the one hand for the First and Second Respondents and on the other for the Third and Fourth Respondents, each on 23 October 2018. At the hearing before me on 7 November 2018, the Respondents further clarified their positions.
4. In summary, as I understand it, the position of the First and Second Respondents was as follows:

1. The First Respondent says it is not liable for anything Mr Wilson did in 2006 in relation to the Applicant, even though he was employed by them at the time, because the Applicant was not then and has never been their employee or contractor (although she did once do some work for a contractor of theirs in 1993) and because Mr Wilson did not have authority to purchase work from other artists and the First Respondent did not even know about the interaction between him and the Applicant at the time. 2. Since according to the First Respondent neither the Applicant nor Mr Wilson was working for the First Respondent in 2009 as either an employee or a contractor and the First Respondent was in no way involved in sending any boycott email, they say they have not victimised the Applicant.

1. The First and Second Respondents say the Applicant's book did not contain an allegation of sexual harassment.

1. The First Respondent says it could not take steps in relation to Mr Wilson's conduct in 2009 because he did not represent them and was not their employee. 2. They say there is no nexus between the alleged victimisation and the First Respondent - they were simply one of a number of recipients of his email. 3. After the Applicant complained to the First Respondent in 2017, the First and Second Respondent commissioned an investigation and report which they say was in accord with their grievance policy and they say this was procedurally fair to the Applicant and to the persons against whom she made allegations. The First Respondent considers that briefing an external investigator to investigate and report about the complaint was best practice and that they have done everything that could be expected of them; 4. The First and Second Respondents also say the commissioning of the report was not sexual harassment or victimisation.
2. The position of the Third and Fourth Respondents as I understand it from their documents and submissions at the hearing, was as follows:

1. They say section 106 does not apply to the Applicant's claim against them. They contend that the section does not cover retrospective assisting, authorising etc. Further, they say there must be a causal link between the authorising or assisting of the person said to have contravened the Act and the detriment suffered by the person who complains that the Respondent authorised or assisted someone to victimise her; 2. The Third and Fourth Respondents also say that a flaw in the report prepared by the Third Respondent would not amount to a detriment to the Applicant. Any detriment would flow from the initial victimisation

1. Further, they say that Mr Wilson's conduct towards the Applicant did not amount to sexual harassment.

WHETHER THE CLAIM SHOULD BE STRUCK OUT OR DISMISSED IN PART OR WHOLE

1. Concerning paragraphs (a) and (b) of the Applicant's claim as I have set it out above, which refer to claims against Mr Wilson, I note that he is not named as a Respondent in this proceeding[20]. The allegations against him, particularly in paragraph (b) form the basis for the allegations against the named respondents. At any hearing, the parties will need to address questions of how the allegations against him will be proved or what weight the allegations can be given in the absence of proof.
2. The First Respondent contended that the alleged initial cause of the victimisation of Ms Lanigan, the sexual harassment in 2006, was in fact not an incident of sexual harassment, but consensual. That is not at this point a reason for dismissing the claim, since without hearing the evidence the Tribunal is in no position to form a view about that allegation.
3. The First Respondent also submitted that the Applicant's book, which was said to be the reason why Mr Wilson victimised her, did not allege that she had suffered sexual harassment. Again, the Tribunal has had no opportunity to assess whether the book does or does not allege sexual harassment. If it does not, then the allegations of victimisation by Mr Wilson and possibly those of authorising and assisting victimisation fail. For section 104 to apply, the Applicant must have been subjected to detriment because she alleged there had been a breach of Part 4, 6 or 7 of the current EO Act or Part 3, 5 or 6 of the old Act.
4. The Applicant does not claim that the First Respondent knew of Mr Wilson's emails before they were sent or in any way encouraged him to send emails about Ms Lanigan before they were sent.
5. As to the allegation in paragraph (c) as I have set it out, that the First Respondent nevertheless authorised and assisted Mr Wilson in his victimisation of the Applicant after publication of her book, the First Respondent said neither party was working for them at that time, that no one from the First Respondent was involved in the sending of Mr Wilson's email and that the First Respondent was only one of a number of recipients of the email, so they could not have authorised or assisted in the alleged victimisation. As they put it, there was no nexus between the First Respondent and Mr Wilson.
6. Mr Wilson gave evidence that he was not an employee or member of the governing body of the First Respondent in 2009 when the email was sent[21]. Margaret Beattie, a member of the First Respondent's board, gave evidence that Mr Wilson was not employed by the First Respondent in any capacity at that time[22]. Ms Lanigan disputed that Mr Wilson did not represent the First Respondent, given his status in the industry and his membership of the body corporate which owns and operates the First Respondent.
7. I agree Ms Lanigan has not yet referred to any further evidence she might produce to prove that the First Respondent requested, instructed, induced, encouraged, authorised or assisted Mr Wilson's conduct. However, she has not said that all her evidence has been produced or referred to. Given she is self-represented, she should have an opportunity to indicate the extent of the evidence she intends to produce, in case she is able to demonstrate some nexus between the First Respondent and Mr Wilson's alleged victimisation of her. For that reason, I do not consider that Mr Wilson's not being an employee or member of the governing body of Circus Oz in 2009 is sufficient reason to dismiss this part of her claim at this stage.
8. Mr Wilson produced an email[23] and said it was the only one he had sent about the book. That email said:

You may or may not have heard about the book "A true history of the Hula hoop' by Judith Lanigan. It is a mostly autobiographical account of her life. Some but not all names have been changed but the fact is that in many cases, permission was not always sought from those who figure in the book and if it was, the exact nature of the content was presented misleadingly before going to press. This book has offended many people. Their personal lives (and in my case, my family) have been put in the spotlight. Please don't support this writer by buying the book. Instead, if you want to do something, write to [the publisher] and let them know. Also feel free to forward this on to those it may be relevant to All the best Matt Wilson.

1. The Applicant alleged at the hearing that Mr Wilson had sent other emails, but he said he had no recollection of other emails. The Applicant said at the hearing that she had only recently received Mr Wilson's affidavit and could in time give evidence about other emails he had sent. In those circumstances I should not make any finding that there was only one email. Ms Lanigan should have an opportunity to produce that evidence, in case, as she alleges, it links the First Respondent to Mr Wilson's conduct.
2. However, there is another reason to dismiss this part of the claim. Any claim that the First Respondent requested, instructed, induced, encouraged, authorised or assisted Mr Wilson's alleged act of victimisation of the Applicant by failing to disassociate itself from his email or emails after they had been sent could not succeed and must be dismissed as misconceived. A person cannot authorise or assist an (alleged) act of victimisation which has already occurred. Authorising and assisting do not occur retrospectively. As the Tribunal said in Besley (referring to section 98 and 99 of the 2005 Act which are equivalent to sections 105 and 106 of the current EO Act)[24]:

Given the wording of s.98 and s.99 which deals with liability where as a result of conduct in s.98 another person breaches the Act, I conclude that s.98 looks at something occurring before what I might call the substantive breach. In other words the instruction, authorisation, encouragement, inducement or assistance to the other person to breach the Act, must occur before that other person commits the breach.

1. Accordingly, the part of the claim which is set out in (c) above, that the First Respondent contravened section 106 of the EO Act by failing to disassociate itself from Mr Wilson's emails after they were sent, is dismissed. It cannot succeed because it is based on a misinterpretation of section 106 of the EO Act (and of section 99 of the old Act).
2. The Applicant's documents consistently refer to "ongoing victimisation". I understand that the Applicant claims, as I have set out in paragraph (d) above, that the First Respondent's failure after the emails were sent to disassociate itself from Mr Wilson's conduct was also a breach of section 105, because she says it led to "ongoing victimisation". There are two reasons why that part of the claim as currently particularised could not succeed. First, as I have said, there is no allegation linking Mr Wilson to the First Respondent sufficiently to make it responsible for his actions. However, as I have said, Ms Lanigan should have an opportunity to outline any further evidence she can produce about that.
3. Secondly, the Applicant does not allege any positive act (although she does allege an omission) by the First Respondent. In other cases, VCAT has suggested that a mere failure to act may not be a breach of section 105. An omission is unlikely to constitute authorising, assisting etc unless there is "a duty or legitimate expectation that the relevant person would act".[25] If the amended particulars of claim include this part of the claim, they must describe the basis for claiming that the First Respondent had any duty or was subject to any legitimate expectation that it would take action about Mr Wilson's conduct.
4. Further, in relation to the claim as described in paragraph (d), it appears that the Applicant intended to claim that the First Respondent's failure to act in relation to Mr Wilson's conduct amounted to authorisation or assistance etc of later instances of victimisation either by Mr Wilson or other people, in breach of section 106 of the EO Act[26]. A person does not breach section 106 unless a second person contravenes the EO Act because the first person has requested, instructed, induced, encouraged, authorised or assisted them to do so.
5. Any such allegation in the current particulars of claim is struck out because it is not particularised. Such an allegation in the amended particulars of claim must be particularised, setting out who subjected the Applicant to what detriment on which occasions because of what she wrote about Mr Wilson in her book and what facts are alleged to support the assertion that the victimisation resulted from the First Respondent's acts.
6. The allegation as I have set it out in paragraph (e) that the First Respondent actively participated in victimisation of the Applicant in breach of section 104, should be set out as a separate allegation in the amended particulars of claim. Details should be given about the events which the Applicant says amounted to the First Respondent's victimisation of her because of her allegation that Mr Wilson sexually harassed her. This should include what detriment the Applicant says she suffered and how she says the First Respondent subjected her to the detriment because of what she said in her book.
7. As to the claim in paragraph (f) that the First Respondent authorised or assisted "ongoing victimisation" by accepting a report which was flawed or incorrect, in breach of section 105 or 106 or both, similar issues arise as for the claim as set out in paragraph (d). That is, the Applicant must in her amended particulars of claim provide details about what establishes a link between Mr Wilson's conduct and the First Respondent. Further, she must give particulars about how accepting the report amounts to requesting, instructing, encouraging, inducing, authorising or assisting further victimisation.
8. Further, if the Applicant claims there was actual victimisation in breach of section 106 as a result of the First Respondent accepting the report, this claim must also be supported by particulars, such as details of who subjected her to detriment, why Ms Lanigan says it was because of her book and what alleged facts would demonstrate that the person subjected her to detriment because the First Respondent authorised or encouraged them to do so.
9. The allegation in paragraph (g), that the Second Respondent specifically commissioned an incorrect report, leading to "ongoing victimisation" should be properly particularised, so the Respondents can answer it. So far, the Applicant alleges it is so inaccurate and deficient in procedural fairness that she considers this was a "deliberate action"[27] on the instructions of the Second Respondent. Further, the claim that this authorised or assisted or otherwise led to "ongoing victimisation" in breach of section 105 or 106 should be particularised.
10. As for the allegation that the Third and Fourth Respondents breached section 105 or section 106 by producing an allegedly incorrect report, I note that the First Respondent says that the report was produced "on a confidential basis"[28]. If that is so, then this aspect of the claim could not succeed, since no one outside of the First Respondent has been "authorised, assisted etc" leading to liability under section 106. No evidence was produced about the First Respondent's processes, but confidentiality may amount to a defence to this allegation. That is a matter for evidence. It is not a reason for striking out or dismissing the claim at this stage.
11. As to the Applicant's reasons for claiming that the report was wrong, those are matters for evidence at a hearing, if it turns out that the accuracy of the report is an element of any claim once the particulars are amended.
12. As for the claim set out in paragraph (j) above, that the First Respondent is vicariously liable for breaches committed by the Third and Fourth Respondent, there is no reason to strike it out at this stage. It depends on the other claims described above.
13. For these reasons, I make the above orders.

[1] Forrester v AIMS Corporation [2004] VSC 506; (2004) 22 VAR 97 where Kaye J confirmed that those principles, expressed by the Court of Appeal in State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 apply to applications brought under section 75(1).

[2] Towie v Victoria (2008) 19VR640; [ 2008] VSC 177 at paragraph 9.

[3] West Homes (Australia) Pty Ltd v Crebar Pty Ltd [2001] VCAT 46 at paragraphs 6 and 11]; Barbon v West Homes (Australia) Pty Ltd [2001] VSC 405.

[4] Fleming v South East Water [2013] VCAT 1252 at paragraph 9.

[5] Campagnolo v Benalla and District Football League Inc [2009] VSC 228 at paragraph 41; Chan v Kostakis [2003] VCAT 951 at paragraph 9; Owners Corporation v Hickory Group Pty Ltd [2015] VCAT 1683 at paragraph 12.

[6] For example, an order that the Third and Fourth Respondents are "not fit to provide the service of workplace investigation and review" and a request that the Tribunal "order an investigation into past reports" produced by those Respondents.

[7] Application 25 July 2018; email 2 October 2018 with three documents attached; Applicant's objection of 2 October 2018 to the section 75 applications; Applicant's further objection 4 October 2018; two documents of 24 October 2018 responding to section 75 submissions of the respondents.

[8] See Brooks v State of Victoria [1997] VADT 13; Besley v National Aikido Association Inc [2005] VCAT 245 at paragraph 59.

[9] The particulars of 30 September 2018 do not specify whether the harassment breached section 93, 94 or 99 of the EO Act.

[10] It may be that the Applicant means that Mr Wilson encouraged others to victimise her, but that is not what she says in her particulars of claim dated 30 September 2018 at paragraph 19.

[11] Particulars of claim dated 30 September 2018 at paragraphs 20 to 23.

[12] Applicant's response to the outline of submissions by First and Second Respondents dated 24 October 2018 at paragraph 1.

[13] Applicant's response to the outline of submissions by First and Second Respondents dated 24 October 2018 at paragraph 10; response to the outline of submissions by the Third and Fourth Respondents at paragraph 34.

[14] The Applicant on 2 October 2018 filed a copy of the Executive Summary of the report and at the hearing the Respondents handed up a complete copy of the report. It was unnecessary to refer to the content of either for the purposes of this decision.

[15] Applicant's response to the outline of submissions by First and Second Respondents dated 24 October 2018 at paragraphs 1 and 6.

[16] Applicant's response to the outline of submissions by First and Second Respondents dated 24 October 2018 at paragraphs 4 and 17.

[17] Applicant's response to the outline of submissions by First and Second Respondents dated 24 October 2018 at paragraphs 1 and 14.

[18] Particulars of claim dated 30 September 2018 at paragraph 37.

[19] Applicant's response to the outline of submissions by First and Second Respondents dated 24 October 2018 at paragraph 1.

[20] The Applicant at the hearing mentioned that she wished to join him as a respondent and directions are given to allow for that.

[21] Affidavit of Matthew Wilson 2 November 2018 paragraph 5.

[22] Affidavit of Margaret Beattie 2 November 2018 paragraph 2 d.

[23] Attachment MW 1 to the affidavit of Matthew Wilson 2 November 2018.

[24] Besley v National Aikido Association Inc [2005] VCAT 245 at paragraph 59.

[25] Kafantaris v City of Yarra [2005] VCAT 2591 at paragraph 23.

[26] Response to the outline of submissions by the First and Second Respondents at paragraph 1.

[27] Applicant's response to the outline of submissions by First and Second Respondents dated 24 October 2018 at paragraph 17.

[28] Submissions of the First and Second Respondent dated 23 October 2018 at paragraph 10.