1. The application by Ms Lanigan was made on 25 July 2018, with Particulars of Claim subsequently filed.[7]
2. The Respondents applied to strike out the proceeding, and after a hearing on 5 December 2018, the Tribunal made the following orders -
   1. Under section 75 of the Victorian Civil and Administrative Tribunal Act 1998, the Tribunal dismisses that part of the Applicant's claim which claims that the First Respondent contravened section 106 of the Equal Opportunity Act 2010 by failing to disassociate itself from the alleged conduct of Matt Wilson (which the Applicant says was victimisation of her in breach of the Equal Opportunity Act 2010) after that conduct occurred.
   2. The Applicant must by 7 February 2019 file with the Tribunal and serve on the Respondents amended particulars of claim which meet the following criteria:

(a) The particulars must be in numbered paragraphs with a new paragraph for each alleged fact.

(b) Each claim must be fully particularised so that for each Respondent and each alleged breach of the Equal Opportunity Act 2010 (or the Equal Opportunity Act 1995) there are details of the alleged facts said to support each element of the section of the relevant Act which the Applicant says that the Respondent has breached.[8]

1. Ms Lanigan then filed "Amended Particulars of Complaint" dated 27 January 2019.
2. Subsequently, after making and withdrawing an application for summary orders[9] and then engaging lawyers, Ms Lanigan filed her Final Amended Particulars of Claim (FAPOC) dated 16 April 2019.
3. On 8 July 2019, Circus Oz and Mr Yates then lodged this Strike Out Application.
4. The Strike Out Application came before me on 8 November 2019. While represented by a lawyer, Ms Lanigan did not attend the hearing in person or file any affidavit material. Both parties sought to rely on evidence already submitted in the proceeding, and two additional medical reports. At the end of a full day of legal submissions, I reserved my decision.
5. The representatives for both Ms Lanigan and Circus Oz offered to obtain a copy of the recording from the hearing and provide a transcript to the Tribunal. Unfortunately, the proceeding was not recorded.
6. Subsequently the solicitors for the Applicant sought to file further submissions and additional evidence. In directions orders made in chambers on 13 December 2019, I gave the parties a further opportunity to provide evidence concerning the Applicant's reasons for delay in filing the proceeding, the Applicant's intentions to prosecute moving forward and the prejudice to the Respondents from the delay, including any evidence about the ability of any witness to recall evidence. I then provided a timeline for evidence and additional submissions to be filed.
7. The following reasons are based on a review of the file, documents and written submissions produced by the parties, my notes of the hearing and subsequent material filed.

1. Ms Lanigan was a freelance circus performer and show writer, who authored a book in 2009 titled "A True History of the Hula Hoop" (the Book).
2. In the Book, which Ms Lanigan describes as "fiction",[10] she refers to a number of encounters with an employee of Circus Oz (the employee), including a meeting in 2006 at her home where there was an "unwelcome sexual advance" (the allegation of sexual harassment).[11]
3. Ms Lanigan says that the employee then sent an email to several people in the circus industry asking them not to "support this writer by buying the book" and to let the publisher know that they were not supporting the book (the Boycott Email). Ms Lanigan says the Boycott Email was victimisation under the EO Act.[12] She says she could not get work, was refused work and had a number of work contracts cancelled as a result of the Boycott Email.[13]
4. In 2010, Ms Lanigan claims she was told that Circus Oz would not support or engage with her work, because they were complying with the Boycott Email. She then says she, and her work, were rejected a number of times by Circus Oz between 2010 and 2016. Ms Lanigan says that these actions by Circus Oz were victimisation in breach of the EO Act,[14] by both the organisation and Mr Yates (its chairperson).
5. In 2017, following the #metoo phenomenon, Ms Lanigan says she described some of her experiences of sexual harassment in the circus industry in a Facebook post.[15] The post resulted in an exchange between Ms Lanigan and an artistic associate who escalated the complaint of sexual harassment to Circus Oz. Ms Lanigan says the Zalt Group (headed by Zandy Fell) was then engaged to carry out an investigation into the allegation of sexual harassment and the Boycott Email.
6. Ms Lanigan complains that the investigation was conducted in a "procedurally unfair manner", and that the summary of the Review Report contained 48 false statements or key errors. Ms Lanigan claims she was victimised by the actions of all Respondents in breach of the EO Act.[16]
7. Additionally, Ms Lanigan claims she was further victimised by the Respondents at the section 75 hearing. The allegations relate to the presentation of evidence of (a) the employee, and (b) the Full Review Report of the investigation.[17]
8. As a result of the sexual harassment, the Boycott Email and victimisation, Ms Lanigan says she has suffered damage to her career, economic loss, and her mental health has suffered.[18]

1. The Strike Out Application is brought pursuant to ss 75 and 76 of the VCAT Act.
2. Section 75(1) of the VCAT Act states -

At any time, the Tribunal may make an order summarily dismissing or striking out all or any part, of a proceeding that, in its opinion_ - _

(a) is frivolous, vexatious, misconceived or lacking in substance; or

1. Senior Member Steele summarised the principles the Tribunal applies in determining applications under s 75 in the first strike out application in this proceeding,[19] which I adopt -

Section 75(1) provides that VCAT may dismiss or strike out all or part of a claim that is frivolous, misconceived, lacking in substance or otherwise an abuse of process.

The principles for determining applications under section 75, are well established. It is a very serious matter to dismiss or strike out a proceeding summarily, and the power to do so should be exercised only where it is obvious that the case cannot possibly succeed or where it is obvious that the case is an abuse of process for other reasons. Otherwise, an applicant is entitled to have the case fully heard and adjudicated upon at final hearing.[20] The Tribunal should only proceed to strike out claims when satisfied that, because of one of the grounds in section 75, the case is manifestly hopeless, undoubtedly untenable or doomed to fail. It has been said that a high threshold must be met before VCAT can summarily dismiss or strike out all or part of a proceeding.[21]

It is also accepted that VCAT should not order summary dismissal in circumstances where the outcome of the case might depend upon findings of fact based on contested evidence.[22] In considering the Respondents' applications, I should take the Applicant's case at its highest.

1. The Tribunal must have a high degree of satisfaction that the case is lacking in substance or is an abuse of process -

Whether a claim is frivolous, vexatious, misconceived or lacking in substance within the terms of s 75(1) is not to be determined in accordance with the balance of probabilities. In order for the power of dismissal under s 75 to be enlivened the Tribunal must have a higher degree of satisfaction. In Forrester v AIMS Corporation Kaye J concluded that a claim is 'misconceived' for the purposes of s 75(1) if it is 'undoubtedly hopeless'.[23]

1. Clause 18 of Schedule 1 of the VCAT Act (the EO Discretion) states -

Summary dismissal of application more than 12 months old

The Tribunal may make an order under section 76 summarily dismissing an application under the Equal Opportunity Act 2010 in respect of an alleged contravention of Part 4, 6 or 7 of that Act if the alleged contravention occurred more than 12 months before the application was made.

At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding for want of prosecution.

1. "Want of Prosecution" is effectively the failure by the applicant to reasonably advance their own proceeding[24] or delaying in initiating this application. In considering the discretion under s 76 to summarily dismiss or strike out the proceeding, the Tribunal has considered that surrounding circumstances, and the correlating application to end the proceeding under s 75 as an abuse of process, is relevant.[25]
2. Deputy President McKenzie in Burrows v Victoria stated -

In determining whether delay in bringing a claim makes it an abuse of process, the primary consideration is the interests of justice. Relevant factors to be considered include whether the delay is inordinate or unreasonable and inexcusable, any explanation for the delay and the adequacy of that explanation, the nature of the proceeding, whether the respondent was responsible for the delay, any prejudice caused to the respondent if the proceeding continued and the effect of the delay on the quality of justice, that is, the ability to conduct a fair hearing of the proceeding (for example, whether significant documents have now been lost or destroyed, whether the witnesses' memories are so impaired that the quality of evidence will be compromised, whether witnesses have died and their importance is such that the quality of evidence is compromised); and the public interest. These factors must be balanced against each other and none is determinative.[26]

1. The Limitation of Actions Act 1958 (LOA Act) additionally provides timelines for commencing litigation. Section 5 requires initiation of a proceeding within six years of the cause of action for contracts or torts, and three years for an action for damages in respect of personal injuries claims.
2. The LOA Act provides for an extension to the time period for a person who has a disability (s 23) and for personal injuries (s 23A). The extension of a cause of action for personal injuries takes into account any reason for the delay and any prejudice to the other party.
3. Additionally, s 126 of the VCAT Act allows for the Tribunal to extend the time limit provided by any enabling enactment for the commencement of a proceeding. This extension of time can be on the Tribunal's own initiative, or on the application of a party. No application for an extension of time has been made.
4. In considering the Strike Out Application and whether the claim by Ms Lanigan is "manifestly hopeless, undoubtedly untenable or doomed to fail", the Tribunal must consider the applicant's case at its highest. This is, however in the context of the evidentiary burden that Ms Lanigan will ultimately have to discharge at any final hearing.
5. Ms Lanigan complains of sexual harassment and victimisation. The seriousness of these allegations requires the decision maker at a final hearing to be satisfied, to a comfortable degree, that the claims have been made out -

It does not follow that the Briginshaw test will apply in all matters of discrimination. In Victoria v Macedonian Teachers Assn of Victoria Inc and Anor the Court declined to apply it to a decision by the State of Victoria to impose a certain name to describe Macedonian citizens, which the court concluded was not discriminatory:

The Briginshaw test only becomes relevant when, because of the seriousness of the allegations being made in relation to an issue to be determined in a particular case, a decision-maker must proceed with caution in arriving at a state of satisfaction.[27]

1. The Briginshaw test does not apply to the applicant's reason for delaying in commencing this proceeding.

1. Circus Oz submits its Strike Out Application on the basis of four alternate and cumulative propositions.
2. Ms Lanigan responds by submitting the issues raised in this application were open to Circus Oz and should have been agitated in the first strike out application. She submits that Circus Oz should not be permitted to bring successive strike out applications raising jurisdictional issues which should have been brought in previous proceedings because of estoppel and Anshun principles.
3. Ms Lanigan submits that having chosen not to raise objections on the basis now asserted in the Strike Out Application, either in the first such application, or at that hearing, or in their response to the FAPOC, Circus Oz should be precluded from asserting a jurisdictional objection on this occasion.[28] Ms Lanigan then refers to submissions put by Circus Oz which referred to the delay in the previous strike out application and her own evidence at the hearing wherein she said: "It took me quite a while to survive the victimisation actually and I did have to sell my house and get to the point where I had recovered enough to take some action."[29]
4. Ms Lanigan says that by reason of the principle of Anshun estoppel,[30] Circus Oz is estopped from raising delay as it was so relevant to the subject matter of the previous strike out application that it was unreasonable not to rely on it previously.
5. While the principle of Anshun estoppel is engrained into the common law in relation to substantive proceedings, its application to interlocutory proceedings brought by respondents or defendants is less certain.
6. In my view the principle does not apply to interlocutory proceedings, such as a strike out application. An unsuccessful strike out application does not prevent a respondent from raising the same matters in their defence of the substantive proceeding and the considerations are different to a "no case to answer" application. Running a second strike out application on a basis that was open to be argued on the first such application may be a matter to be taken into account on the issue of costs, but it is not a matter that precludes the second strike out application from being run.
7. However, there is one matter that the Respondents did raise, and was adjudicated on, at the first strike out application. To raise it again at a subsequent strike out hearing is, in my view, to seek to appeal or review the original determination. This will be further considered in the context of that particular proposition.
8. Each of the propositions said to support the Strike Out Application can be summarised as follows.

1. Circus Oz submits that there has been an inordinate delay in bringing the claim by Ms Lanigan which is "unfairly prejudicial" to Circus Oz. It says this is an "abuse of process" or a "want of prosecution" under ss 75 and 76 of the VCAT Act, respectively. Circus Oz seeks the proceeding be summarily dismissed or alternatively, struck out.
2. Ms Lanigan responds that there has been no delay as the complaints arise from a "continuum of conduct",[31] with the application filed within five months of receiving the Review Report. Additionally, Ms Lanigan submits that the decision to reject an "out of time" application is discretionary, with consideration of a number of factors including whether there is a satisfactory explanation for the delay.

1. Circus Oz submits that the proceeding is "misconceived" or "lacking in substance" because the cause of action is statute barred by reason of the LOA Act. Again, it seeks the proceeding be summarily dismissed or alternatively, struck out.
2. Ms Lanigan's response is that she was incapable of managing her affairs because of her mental health, and that any time restriction on commencing a claim does not run until she became aware she had obtained an injury from the Respondents.

1. Circus Oz submits that the FAPOC do not reveal that any complaint of sexual harassment is contained within the Book. As such, Circus Oz says the claims of victimisation based on the complaint contained within the Book, are "misconceived" and "lacking in substance" and as such the claims should be summarily dismissed or alternatively, struck out.
2. Ms Lanigan refutes the claim that there is no allegation of sexual harassment contained within the Book and refers to and repeats the particulars in her FAPOC. Additionally, she says that is a matter of evidence and determination for a final hearing.

1. And finally, Circus Oz submits that the claims made in relation to the conduct in the earlier s 75 hearing are vexatious, misconceived and lacking in substance.
2. Ms Lanigan did not address these points in her written submissions.

1. Each of the propositions which form the basis for the Strike Out Application will be considered in turn.

Proposition 1: Delay giving rise to an "abuse of process" or "want of prosecution"

1. Circus Oz submits that Ms Lanigan's delay in bringing the proceeding is unfairly prejudicial and as such is an abuse of process.
2. Circus Oz submits that while "abuse of process" is not defined in the VCAT Act, it has been described as

a proceeding that is being used in a way that is manifestly unjust, oppressive or unfair to a party to the proceeding, or would otherwise bring the administration of justice into disrepute among right-thinking people.[32]

Circus Oz submits that VCAT has held on many occasions that this includes a proceeding where there has been an inordinate delay in bringing the complaint.[33]

1. Circus Oz submits that the EO Discretion, which allows for the summary dismissal of an application under the EO Act for want of prosecution if the alleged contravention occurred more than 12 months before the application was lodged, also gives the Tribunal a discretion to prevent injustice due to delay.
2. In its written submissions, Circus Oz then refers to a number of decisions where delay was considered. These include Burrows v State of Victoria,[34] Casley v ABC,[35] Stewart v City of Yarra,[36] Jovancevski v United Voice,[37] and Brisbane South Regional Health Authority v Taylor.[38]
3. Circus Oz says that it is unfairly prejudiced by the delay, when regard is had to the serious nature of the claims. It says the following are relevant factors for consideration -

(a) the inordinate and unreasonable delay in commencing the proceedings;

(b) many of the allegations of victimisation concern brief conversations of one or two sentences with various individuals, the detail of which would have been lost in the many years that have passed between the occurrence of any such discussions and Ms Lanigan filing her application;

(c) Circus Oz has not been responsible for the delay in any way;

(d) the nature of the proceeding in the Tribunal is such that it will depend heavily on the credit of witnesses;

(e) the delay over such a prolonged period of time must necessarily have affected the quality of justice, with the deterioration of witnesses' memories;

(f) the LOA Act and the EO Discretion gives a good indication that the welfare of society is best served by causes of action being litigated within a six-year time frame at least;[39] and

(g) the public interest favours dismissal or striking out. It is not in the public interest for persons to be confronted many years after the event with serious allegations which, whether or not proved, will produce considerable consequences for them.

1. Ms Lanigan submits that the EO Discretion is just that - discretionary. Further she says that an 18-month delay in pursuing litigation has been described as "unfortunate" but "not unusual" and "not material".[40]
2. Ms Lanigan submits that in determining whether delay in bringing a claim makes it an abuse of process, VCAT has determined that the primary consideration is the interests of justice.[41] She submits that -

The relevant factors to be considered include whether the delay is inordinate or unreasonable and inexcusable, any explanation for the delay and the adequacy of that explanation, the nature of the proceeding, whether the respondent was responsible for the delay, any prejudice caused to the respondent if the proceeding continued and the effect of the delay on the quality of justice, that is the ability to conduct a fair hearing of the proceeding (for example, whether significant documents have now been lost or destroyed, whether the witnesses' memories are so impaired that the quality of evidence is compromised); and the public interest. These factors must be balanced against each other and none is determinative.[42]

1. Ms Lanigan then refers to a number of cases where claims were not dismissed due to delay - Dyke v IPM Operation & Maintenance Loy Yang Pty Ltd,[43] McMahon v Green,[44] Neumann v Brisbane Housing Company Ltd,[45] Turner v Department of Education and Training,[46] Hecimovic v Victoria Police,[47] and Beasley v Victoria.[48]
2. Ms Lanigan submits that the decisions relied on by Circus Oz can either be distinguished or support the refusal of a claim for summary dismissal -

(a) Burrows v State of Victoria - The incidents that took place between one and six years prior to the application were not struck out because there were numerous documents concerning these matters and witness availability did not seem to be a problem. Additionally, the allegation was one of continuing discrimination.

(b) Casley v ABC - This case can be distinguished because there was no provision of services under the EO Act, the claimant had pursued other legal avenues for a remedy and the most recent conduct complained of was 7 years prior to the complaint being lodged.

(c) Stewart v City of Yarra - The conduct complained of occurred 15 years before lodging the complaint, with Ms Lanigan experiencing a continuum of conduct with the last incident just five months before the application was filed.

1. Ms Lanigan further submits that the Tribunal has a discretion similar to that exercised in federal discrimination case law.[49] She submits that to reject all out of time applications simply because they are out of time would be an impermissible exercise of the discretion to accept late complaints in appropriate circumstances.
2. Ms Lanigan further submits that a number of factors need to be taken into account, not just the issue of prejudice to the Respondents.[50] She says-

other considerations include whether the complainant has shown "good cause" for their delay; whether the delay is attributable to the acts or omissions of any or all of the complainant, their legal representatives, and the respondent(s); the circumstances of the complainant; and whether there is a satisfactory explanation for the delay.[51]

1. The incident giving rise to the allegation of sexual harassment is said to have occurred in 2006. The allegation was contained in the Book that was published in 2009. Ms Lanigan complains that the victimisation of her commenced shortly after publication, by reason of the Boycott Email, and she was denied work opportunities in 2010 or 2011[52] and 2014, before being humiliated in 2016 when she was confronted by a discussion about the Boycott Email. In 2017, Ms Lanigan posted a comment on social media, which gave rise to her complaints about Circus Oz being the subject of an investigation. The application to the Tribunal was lodged in July 2018.
2. In summary, the alleged incident of sexual harassment was 12 years prior to proceedings at VCAT, the allegation contained in the Book was made 9 years prior, and the victimisation is said to have occurred over a six year period, commencing as early as 8 years prior to Ms Lanigan initiating this proceeding. The most recent allegation of victimisation concerns the conduct of the investigation and the resultant Full Review Report (not the subject of the Strike Out Application) and incidents that occurred during the first strike out application.
3. I do not accept that the cumulative effect of the allegations is that the delay is only 18 months, as submitted by Ms Lanigan. Each of the factual incidents giving rise to the claim, and their timing, is a relevant consideration as to delay. Most importantly is when Ms Lanigan first became aware of her unfavourable treatment.
4. This case is founded on an allegation of sexual harassment. The incident giving rise to the allegation is said to have occurred some 12 years prior to initiating the proceeding, and was then documented by Ms Lanigan in the Book, published nine years prior to lodging the application. It is clear from the submissions made, that Ms Lanigan was of the view that she had been sexually harassed in 2006 and was making that allegation when she penned the incident in the Book.
5. Within a year of the Book being published, and the distribution of the Boycott Email (which Ms Lanigan received), Ms Lanigan describes how she was impacted by the victimisation. Even if I accept that Ms Lanigan was told it was "not appropriate for her to apply" for work with Circus Oz in 2011 (and not 2010), I am of the view that she first became aware of being the subject of unfavourable treatment by the First and Second Respondents some 7 years prior to lodging this application.
6. I am satisfied that all matters complained of relating to sexual harassment and victimisation by the First and Second Respondents up to and including 2016 were alleged contraventions of the EO Act that did not occur within the 12-month period, under the EO Discretion, prior to the application being made. As such there has been a delay in bringing these proceedings, and in relation to many, if not most, of the allegations, an inordinate delay.

Is there a satisfactory explanation for the delay?

1. Ms Lanigan did not attend the hearing, nor did she provide any evidence by way of an affidavit at the hearing to explain the delay in bringing the application. In considering the evidence and submissions provided, a further opportunity was given to the parties to produce additional evidence. Despite the opportunity, Ms Lanigan has not gone on affidavit directly. Instead, law graduate, Amelia Dowey, engaged at the solicitors for the Applicant, has deposed an affidavit (Dowey Affidavit) which states: "The facts set out in this affidavit are true based on my own knowledge and/or are true to the best of my knowledge, information and belief based on my enquiries of relevant persons."
2. Ms Lanigan submits that as a result of the victimising conduct, she suffered physical and mental health issues during the delay period including anxiety and reclusiveness. In her written submissions, Ms Lanigan claims that -

(i) she was homeless for a period of time, and (ii) from late 2010 to the current period, she has not been earning income aside from two small advances for her published books, the sale of her paintings and menial short-term casual work, and has only been managing to pay her mortgage. From late 2010 onwards, she has had little money for food and no money for petrol to drive to consult a lawyer or meet with legal aid. She could not afford to pay her phone bills so was making as few phone calls as possible.

1. The inconsistencies in these submissions (such as having to pay a mortgage yet being homeless, having the internet for Facebook but not being able to contact a lawyer and having a phone account but limitations on calls) were not answered, or explained, in the Dowey Affidavit. More confusion arises, in particular about Ms Lanigan seeking to investigate enforcing her rights, with claims that

[i]n October 2011, the Applicant sought legal advice from a defamation lawyer, for the purposes of commencing defamation action against (the employee). The Applicant was unable to afford the cost of engaging representation, so did not engage the lawyer.[53]

This consultation was said to have occurred at a time that Ms Lanigan was "heavily debilitated by anxiety and stress".[54]

1. A number of medical reports were produced in support of Ms Lanigan's explanation for her delay. The first two were provided at the hearing. The first was created for the purpose of explaining her inability to attend a hearing at the Tribunal in March 2019.[55] It described Ms Lanigan as suffering from "severe PTSD [basically a workplace bullying trauma, (WBT)]" and that the psychologist witnessed her "panic, tears, fear and powerlessness". The second report dated 26 August 2019,[56] appears to have been produced to support an application that Senior Member Steele not hear any further matters in this proceeding, related to an incident said to have occurred at the previous strike out application (and that had been the subject of a reconstitution application).[57] The psychologist refers to treating Ms Lanigan since March 2019 and states: "In my opinion she is currently in an extremely vulnerable state, demonstrating the major symptoms of a severe, chronic Workplace Bullying Trauma (WBT)." The author says that "this diagnosis means that she, like similar victims, are easily retriggered by reminders of the original bullying as well as events that symbolise and bring back memories of other bullying experiences." Nowhere in the reports is there any opinion given of how long Ms Lanigan has been suffering from the condition or what impact the psychologist believes it may have had on her ability to commence this litigation. There is also no explanation as to the triggers involved, or how Ms Lanigan was in a position to make her claim or handle the matter for a period of time. Additionally, it does not provide any opinion of Ms Lanigan's current ability to pursue this cause of action, especially in light of her inability to attend the Strike Out Application hearing or failure to go on affidavit directly in relation to her reason for this delay.
2. Additional medical evidence was annexed to the Dowey Affidavit. The first document is said to be consultation notes, recorded almost five years after the consultation occurred in April 2011. At this time Ms Lanigan was said to have reported some "unpleasant experience in her work" and feeling "anxious and unsettled" by this. At a consultation the following day the focus was on other life events, including a relationship breakdown. Reports of her subsequent attendances at a psychologist and Community Mental Health Service during May 2011 do not provide any further assistance in determining her capacity at that time to take action to enforce her rights. One report claiming that Ms Lanigan was "not feeling overtly depressed", and "did not report any significant or prolonged symptoms of an adverse mood disorder".
3. At a time when Ms Lanigan was said to be incapable of enforcing her rights, there was a sixteen month period between September 2011 and December 2012, where she set up and operated a business under the New Enterprise Incentive Scheme.[58] She also travelled, carried out interviews for a new book and actively looked for, and was engaged in, work from 2012 to 2014. In 2015 Ms Lanigan sold the house she had purchased in 2009, and over the next few years had a minimal source of income (according to tax returns submitted), while being in receipt of the Newstart allowance. In early 2018, Ms Lanigan enrolled in study and by the middle of the year had obtained her Investigation Services Licence.
4. The Dowey Affidavit attests - "I am instructed that the above history of medical issues and financial hardship prevented the Applicant from considering or pursuing her legal claims." Ms Lanigan submits that her sustained psychological injury from the initial Boycott Email, in conjunction with the health impact and financial hardship sustained by the ongoing continuum of victimisation against her, hindered her ability to reasonably consider her legal rights and pursue a legal claim.
5. The evidence provided by Ms Lanigan falls well short of her assertions that she had a reasonable explanation for delaying in lodging this application. In the circumstances where the medical evidence is lacking over a period of time where Ms Lanigan is said to be incapable of enforcing her rights because of her health, where she was actively engaged in seeking employment, starting a business and working at various locations around Australia within the industry said to be crippling her, was posting comments on social media and then applying for and undertaking study in a new career path, I find that Ms Lanigan does not have a reasonable explanation for the delay in initiating this application.

Is there any prejudice to the Respondents arising from the delay?

1. While Ms Lanigan may not have provided evidence to support her contention as to why there was a delay in initiating these proceedings, the Respondents must establish that this delay has or will cause them prejudice in defending the proceeding.
2. Circus Oz and Mr Yates were provided with an opportunity to submit further evidence to the Tribunal, whether that be statements from witnesses about their ability to recall conversations, or difficulties those witnesses had in giving evidence at the first strike out application, by way of reference to the transcript of those proceedings. Instead the Respondents are asking the Tribunal to draw inferences and are relying on assumptions, rather than any direct evidence of an inability to recall events.
3. The employee provided an affidavit[59] and was cross examined during the first strike out application. The affidavit details his history with Circus Oz including his employment, his knowledge of the contents of the Book, his reading of it and the sending of the Boycott Email, including his reasons for sending the email. At the hearing, he gave evidence about the reason for meeting Ms Lanigan in 2006, recalling that -

My recollection of it is that we talked about an idea for a show together as a pair of artists talking about ideas and it was nothing more than that. There was no agreement about making what you're suggesting.[60]

The employee then denies the claims of sexual harassment: "I didn't ask her to have sex with me, I disagree with that very strongly".[61] There were then questions about sending more than one email out to parties, with the employee adamant that it had been only the one email sent, and providing a reason as to why he was so sure about that email. When challenged on it further, the employee stated he couldn't be certain, or couldn't recall, exactly who he had sent it to, or whether the email was sent on to others not named in the first email list of 20 August 2009.

1. Circus Oz and Mr Yates submit that the passage of time means that a witness's ability to accurately recall events will have been impacted, and that the delay of itself is prejudicial to them, affecting the quality of justice and their ability to conduct a fair hearing.
2. Ms Lanigan submits that the key pieces of evidence include a published book and drafts of the published book, email evidence and a written investigation as part of the Review Report. Additionally, Ms Lanigan submits that relevant witnesses have already demonstrated a capacity to recall asserted events in evidence at the first strike out application.
3. There was no direct evidence presented by the Respondents of an inability by the employee, or any other witness, to recall any event or fact that is alleged by Ms Lanigan to have taken place. Whether or not an event took place, or took place in the manner described, will be a question of fact and one that should be determined at a hearing. The quality of that evidence or the weight to be attributed to it, due to the passage of time, is a matter for submissions at a final contested hearing.
4. Ms Lanigan will have the burden of satisfying the Tribunal to a comfortable degree that the facts she says occurred, did occur in the manner she alleges. If there is any detriment or prejudice arising from the delay, then an assumption can just as easily be drawn that it is more prejudicial to the Applicant than it is to the Respondents.

1. Ms Lanigan submits that the primary consideration as to whether delay is an abuse of process is the interests of justice. Relying on Neumann v Brisbane Housing Company,[62] Ms Lanigan says that the conduct by Circus Oz shows a "pattern of behaviour" or "continuum of victimisation" and the "out of time" claims give a fuller picture to her claims which are in the interests of justice.
2. If all "out of time" claims were rejected by the Tribunal, then there would be no cause of action against the First and Second Respondents, as all matters are said to have occurred outside the EO Discretion.
3. Without the sexual harassment claim, there is no basis for the claim of vicarious liability of Circus Oz and no allegation of sexual harassment, from which there can be no victimisation under the EO Act. The interests of justice support the ability of Ms Lanigan to put her case to a final contested hearing.

1. While there has been an inordinate, unexplained, delay by Ms Lanigan in initiating this cause of action, I am not satisfied that the Respondents have established that they have been unfairly prejudiced such that they will be denied a fair hearing or that it is against the interests of justice.
2. I refuse the application to strike out or summarily dismiss Ms Lanigan's claim on the basis of delay.

Proposition 2: Statute barred claims "lacking in substance" and "misconceived"

1. Circus Oz submits that the claims of sexual harassment, the allegation of sexual harassment contained in the Book and any claims of victimisation prior to 2012 are statute barred and therefore, by the mere passage of time, are lacking in substance or misconceived.
2. Circus Oz says that s 5 of the LOA Act provides that actions can't be brought after six years from the date the cause of action accrued, if it is an action in tort for breach of a statutory duty or actions to recover a sum of money recoverable by virtue of an enactment. It submits that the LOA Act applies to proceedings in VCAT,[63] and in particular the nature and rights contained within the EO Act and the form of relief can easily be included within the definition of "an action for damages for breach of statutory duty".[64] Alternatively, it submits that this proceeding is one which amounts to an action for a sum recoverable by virtue of an enactment.
3. Circus Oz submits that the cause of action "accrues" when the elements of a sexual harassment or victimisation claim under the EO Act are complete by reference to the events of sexual harassment, victimisation and discrimination. It submits that there is no need to prove damages to make good the cause of action. As such, Circus Oz says the claims of sexual harassment in 2006 and claims of victimisation between 2010 and 2011 should be summarily dismissed as "misconceived"[65] or "lacking in substance".[66]
4. Ms Lanigan submits that there has been a continuum of victimisation and it is not appropriate to deal with the events artificially as if they were singular and unrelated. She says the victimisation she has experienced stemmed from the initial complaint of sexual harassment and subsequent Boycott Email being used as the basis for her treatment over many years.
5. Further, Ms Lanigan submits that any limitation period begins to run from the point she was aware she had obtained an injury, and as she was a person with a disability, s 23 of the LOA Act applies and the time restriction of six years only comes into effect thereafter. Ms Lanigan submits that she was "incapable of managing her affairs"[67] and this is supported by the medical evidence presented.
6. I do not accept that Ms Lanigan was incapable of managing her affairs, nor that she was unaware she had obtained an injury. Her attendances at medical professionals and a lawyer, and her financial difficulties, suggest otherwise. Ms Lanigan was of the view that she had been sexually harassed, and this allegation was contained within her book. Additionally, she was well aware that the allegation of sexual harassment and/or the Boycott Email was a substantive reason for her work being rejected and her being unable to apply for work within the circus industry. I am of the view that Ms Lanigan was well aware of the matters that form the basis of her application to the Tribunal more than six years prior to the application being lodged and that her attendances at medical professionals and lawyers all suggest she was well aware of the cause of her mental health problems and her financial struggles.
7. I also do not accept that the events can be categorised as a continuum, such that time does not start running until the last event of victimisation has taken place. Taking Ms Lanigan's allegations at its highest, the incident of sexual harassment, the complaint of sexual harassment and the victimisation of her in 2010 and 2011 are all the foundation elements to this cause of action. The subsequent allegations from 2012 are merely additional instances of victimisation which flow from the complaint of sexual harassment and which support claims for additional damages.
8. As such, with the claims being outside the limitation of actions period and being statute barred, the Respondents appear to have a complete defence to the application against them as it relates to the incident of sexual harassment, the allegation of sexual harassment and the victimisation said to have occurred in 2010 and 2011.
9. It is noted that the Respondents have not pleaded the Statute of Limitations defence in the First and Second Respondents' Response to the Applicant's Final Amended Particulars of Claim dated 15 May 2019. It ought to have been pleaded to be relied on. It has however been raised as part of the Strike Out Application and Ms Lanigan is on notice of the defence and has made submissions in response. It would be non-sensical to ignore this defence merely because it has not been pleaded, in a jurisdiction that is not a court of pleading. It would also be an inefficient use of resources, when there would be no prohibition on an amendment of the pleadings, a subsequent application for a strike out or even raising the issue prior to any final hearing concluding.[68]
10. I am satisfied that any claim for relief that arises from the events prior to 25 July 2012[69] should be summarily dismissed because they are misconceived or lacking in substance as they are statute barred. Of course, this does not prevent these factual matters from being raised in the pleadings or in the evidence for context and forming the basis for the foundation for the subsequent claims of victimisation that are said to have occurred from mid-2012 onwards.

Proposition 3: No complaint of sexual harassment in the Book

1. Circus Oz submits that the Book does not contain an allegation of sexual harassment in contravention of the EO Act. It submits that without a founding instance of alleged sexual harassment, there cannot be any victimisation in contravention of the EO Act.
2. Circus Oz states that the particularisation of the sexual harassment, in the FAPOC, now demonstrates that (a) the Book does not contain the events said to give rise to the incidence of sexual harassment and (b) that Ms Lanigan makes no complaint about sexual harassment in the Book. Circus Oz submits that without any allegation of sexual harassment in the Book, there is no proper basis for any of the claims made prior to Ms Lanigan's complaint to Circus Oz in 2017 and her direct victimisation claims are misconceived and lacking in substance.
3. Ms Lanigan refutes the claim and says her FAPOC particularise the incident of sexual harassment and her complaint. She refers to and relies on paragraphs 11 to 28 of the FAPOC.
4. In my view this allegation was raised by the Respondents in the first strike out application, and they should be estopped from raising it again here. In submissions at the time, Mr Hupe stated -

So there was no sexual harassment and then there was no allegation of sexual harassment re Katherine and Jonno in the book which is partly a work of fiction, partly autobiographical.[70]

Additionally, it was one of the points Senior Member Steele referred to in her reasons for decision.[71]

1. The further particularisation of the incident of sexual harassment in the FAPOC does not impact or effect whether or not there is an allegation of sexual harassment contained within the Book. Senior Member Steele has determined this matter and I refuse to revisit it on the premise suggested. The application to summarily dismiss or strike out the matters that flow from the allegation of sexual harassment is refused.

Proposition 4: Claim of victimisation from the s 75 hearing is "vexatious", "misconceived" and "lacking in substance"

1. Circus Oz submits that the new claims contained within the FAPOC which are made in respect of the earlier strike out application are vexatious, misconceived and lacking in substance.
2. Paragraphs 50 to 57 of the FAPOC appear to take issue with the late filing of affidavit material by the Respondents at the first strike out hearing and the provision of the full Review Report to Senior Member Steele after the hearing had concluded. There is no assertion as to how, or in what context, under the EO Act, this is said to amount to victimisation or the detriment that Ms Lanigan suffered as a result.
3. I agree with Circus Oz that these claims are misconceived and should be struck out.
4. There will be orders that paragraphs 50 through to 57 of the FAPOC be struck out.

1. Circus Oz submits that all of Ms Lanigan's claims, other than those related to the investigation process,[72] should be summarily dismissed, or alternatively, struck out.
2. For the reasons provided above, I refuse the application to summarily dismiss or strike out the proceeding on the basis of delay or because it is said that the Book does not contain an allegation of sexual harassment.
3. However, those causes of action or claims for relief prior to 25 July 2012 will be summarily dismissed and paragraphs 50 to 57 of the FAPOC are misconceived and lacking in substance and should be struck out. There will be orders to that effect.

[4] Given the history of the allegations, the claim is also made under the preceding legislation, the Equal Opportunity Act 1995.

[7] The Particulars of Claim are dated 30 September 2018.

[8] The first strike out application was determined on 18 December 2018 in Lanigan v Circus Oz (Human Rights) [2018] VCAT 1980.

[10] Final Amended Particulars of Claim, [19].

[12] The Applicant claims the incident was a breach of ss 96 and 97 of the Equal Opportunity Act 1995 and/or ss 103 and 104 of the EO Act.

[13] Final Amended Particulars of Claim, [32].

[14] Final Amended Particulars of Claim, [33]-[34], wherein the Applicant claims a breach of ss 96, 97 and/or 98 of the Equal Opportunity Act 1995 and/or sections 103, 104 and/or 105 of the EO Act.

[15] Final Amended Particulars of Claim, [35]-[36].

[16] Sections 96, 97, 98 and/or 99 of the Equal Opportunity Act 1995 and/or sections 15, 103, 104, 105 and/or 106 of the EO Act. The allegations are set out in paragraphs 40 to 49 of the Final Amended Particulars of Claim.

[17] Final Amended Particulars of Claim, [50]-[57].

[18] Paragraph 58 headed "Loss and Damages" in the Final Amended Particulars of Claim.

[19] Lanigan v Circus Oz (Human Rights) [2018] VCAT 1980, [6]-[7], [9].

[20] 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).

[21] Towie v Victoria (2008) 19 VR 640; [2008] VSC 177, [9].

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

[23] Weber v Deakin University [2018] VSCA 53 (8 March 2018), [24].

[24] James & Ors v Mansfield SC [2012] VCAT 1758.

[25] Casley v ABC (Human Rights) [2018] VCAT 1645.

[26] [2002] VCAT 1655, [38].

[27] Dyke v IPM Operation & Maintenance Loy Yang Pty Ltd (Human Rights) [2014] VCAT 954, [49].

[28] Paragraph 4.9 of the Applicant's Outline of Response to First Respondent's Submissions on Summary Dismissal / Strike Out of Claims.

[29] Paragraph 4.13 of the Applicant's Outline of Response to First Respondent's Submissions on Summary Dismissal / Strike Out of Claims.

[30] Anshun v Port of Melbourne Authority [1981] HCA 45; (1981) 147 CLR 589.

[31] Paragraph 2.11(c) of the Applicant's Outline of Response to First Respondent's Submissions on Summary Dismissal/Strike Out of Claims dated 1 November 2019.

[32] Molyneux v VCAT [2007] VSC 89, [53].

[33] Burrows v Victoria [2002] VCAT 1655; Sleigh v Victoria [2010] VCAT 2057, [8], [28]; Garcia v Miles [2012] VCAT 262, [16], [20]; Jovancevski v United Voice [2013] VCAT 25, [15]-[16].

[34] [2002] VCAT 1655.

[35] [2018] VCAT 1645.

[36] [2016] VCAT 1537.

[37] [2013] VCAT 25.

[38] [1996] HCA 25; (1996) 186 CLR 541, 552.

[39] Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, 553

[40] Kramersh v IPD Education Limited (Human Rights) [2014] VCAT 1439.

[41] Burrows v Victoria [2002] VCAT 1655, [48].

[43] [2014] VCAT 954.

[44] [2015] VCAT 1156, [53].

[45] [2017] QCAT 18.

[46] [2005] VCAT 2143.

[47] [2005] VCAT 870.

[48] [2005] VCAT 618.

[49] Bligh and Ors v State of Queensland [1996] HREOCA 28.

[50] Buderim Ginger Ltd v Booth [2002] QCA 177.

[51] Paragraph 2.13 of the Applicant's Outline of Response to First Respondent's Submissions on Summary Dismissal / Strike Out of Claims.

[52] Paragraph 17(a) of the Amended Particulars of Complaint.

[55] Psychologist Report dated 22 March 2019.

[56] Psychologist Report dated 26 August 2019.

[57] The reconstitution application was heard on 14 December 2018. Deputy President Nihill made orders that "the application for reconstitution of the Tribunal is rejected under section 71(7) for reasons given orally at the hearing."

[60] Page 30 of the transcript of the proceeding.

[62] [2017] QCAT 18.

[63] See Cappellin v Brondolino [2011] VCAT 1778, [151]; Sutherland v Corkhill [2011] VCAT 709, [37].

[64] Gama v Qantas Airways Ltd [2006] FMCA 11; (2006) 195 FLR 475, [6].

[65] Sleigh v State of Victoria [2010] VCAT 2057, [8].

[66] Resolution Adventure v McColley [2006] VCAT 797, [16].

[67] Lovejoy v Carp & Ors [1999] VSCA 167.

[69] 25 July 2018 was the date that the application was lodged online by Ms Lanigan. The events more than six years prior to this date cannot give rise to any claim for relief.

[71] Lanigan v Circus Oz (Human Rights) [2018] VCAT 1980, [30(c)].

[72] Final Amended Particulars of Claim, [37]-[47].