1. That the Respondent's application under s75 of the Victorian Civil and Administrative Tribunal Act 1998 to strike out the complaint is dismissed.

For the Respondent: Mr B. Marchesani, Representative

(1)

Now I said I was prepared to hand down my decision at this time and I can do so now.

(2)

My decision is that the application to strike out the complaint is dismissed. I now explain why.

(3)

On 2 September 2004 Mr Lee lodged with the Equal Opportunity Commission, ("the Commission"), a complaint under the Equal Opportunity Act 1995 ("the Equal Opportunity Act"). The Commission considered that the complaint was not reasonably possible to be successfully conciliated. As Mr Lee was entitled to do he requested the Commission to refer the complaint to VCAT. It did so by letter dated 8 October 2004.

(4)

The respondent, Mr Mitsilias, then applied to VCAT under s.75 of the Victorian Civil and Administrative Tribunal Act 1998, ("the VCAT Act"), to have the complaint struck out. He did so on the ground that the complaint was an abuse of process.

(5)

This is one of the grounds on which the Tribunal can strike out a complaint. The principles applying when considering applications under this section are set out by the Tribunal in many cases, including Norman v. Australian Red Cross Society (1998) 14 V.A.R at p.243. The Tribunal has followed what the Victorian Court of Appeal said about a similar, now repealed, section of the Equal Opportunity Act 1984 in Rabel v. State Electricity Commission (1998) 1 V.R. at p.102.

(6)

Briefly so far as relevant to this case the principles are these. The striking out or dismissal of a proceeding, here a complaint, under s.75, involves its summary termination. The Tribunal should be cautious before doing this and should only do so if satisfied that for reasons set out in the section the complaint is manifestly hopeless, undoubtedly untenable or doomed to fail. This degree of satisfaction needs to be reached because under the section the striking out or dismissal of the complaint means that the litigant is deprived of having the chance to have the case heard in the ordinary course.

(7)

I now say something about the meaning of abuse of process, the ground on which this application is made. The ability to strike out a claim for abuse of process looks at protecting the integrity of the Tribunal's processes. The concept is a very broad one. Examples of abuse of process would be a case where if the case was so clearly and manifestly hopeless that it should never have been brought; a case brought not to adjudicate the right claimed it but rather for a collateral or ulterior purpose such as to embarrass, annoy or unfairly prejudice a respondent; or an attempt to re-litigate a matter already determined by the Tribunal where the parties and issues are the same.

(8)

I have before me here the written and oral submissions from Mr Lee and on behalf of Mr Mitsilias, and the complaint itself. The written submissions include significant amounts of correspondence and other documents.

(9)

In his complaint Mr Lee claims that Mr Mitsilias sexually harassed him in the provision of goods and services. Mr Mitsilias is a Pub TAB manager at the Doncaster Hotel, a hotel owned and operated by the ALH Group Limited, ("ALH"). Mr Lee is a regular customer of the Pub TAB.

(10)

In brief, Mr Lee says that in March 2004 on two occasions when he had come to place bets using the Doncaster Hotel Pub TAB, Mr Mitsilias asked him whether he was going to, or had gone to a prostitute, and when he asked him this made motions of the body simulating sexual intercourse. Mr Mitsilias denies the claim. If this were the only matter before me, a claim and a denial, the matter should go to a full hearing where the disputed issue can be the subject of evidence and can be tested by cross-examination.

(11)

But it is said for Mr Mitsilias that the complaint should be struck out because, taking into account the circumstances before it's lodgment, it is an abuse of process and brought for a collateral or ulterior purpose. It is not brought, in other words, to adjudicate what is claimed.

(12)

It is said on Mr Mitsilias' behalf, and Mr Lee does not dispute, that in early 2004 a dispute arose between Mr Lee and the management of the Doncaster Hotel, ultimately the ALH Group. That dispute concerned Mr Lee's claim and ALH's denial that Mr Mitsilias had encouraged Mr Lee to apply for a vacancy at Pub TAB as a part time cashier. Mr Lee says that in response to that encouragement Mr Lee had enrolled for, and paid for, a TAB Sellers Accreditation course at William Angliss Institute and that ALH had subsequently refused to reimburse Mr Lee for this course.

(13)

The dispute has been the subject of complaints made by Mr Lee to the Victorian Gaming Commission, the ALH Group Management, the Office of Fair Trading and TAB Corp. It is said for Mr Mitsilias that all these complaints were unsuccessful. Mr Lee disputes this at least in relation to one complaint. It is said for Mr Mitsilias that after an exchange of correspondence in May 2004 between Mr Lee and Mr Milana, the manager of the Doncaster Hotel, and after unsuccessful attempt to have a meeting between Mr Milana and Mr Lee, Mr Lee for the first time wrote to Mr Milana making the allegation that has become the subject of this sexual harassment complaint.

(14)

It is said for Mr Mitsilias, and Mr Lee does not dispute, that in June 2004 Mr Lee lodged with the Commission a complaint of sexual harassment in the provision of goods and services against ALH. That complaint was in identical terms to the complaint which I am now dealing with. It is common ground that conciliation attempts were unsuccessful and that Mr Lee did not take steps to refer that complaint to VCAT. It is said for Mr Mitsilias that given these circumstances the complaint against him is an abuse of process and brought to embarrass him and for the purpose of recovering fees which Mr Lee paid to William Angliss for the TAB Sellers Accreditation course, a matter which is entirely unrelated to the complaint.

(15)

It is clear from Mr Lee's oral submissions on this application that he is upset by what he alleges was offensive behaviour to him by Mr Mitsilias and also by not having his accreditation course fees paid by the Doncaster Hotel. He is also upset by what he says was the Hotel's requirement that he undertake unpaid work experience. I am satisfied that in his mind these matters are intertwined and confused. However I am not prepared to say that the sexual harassment claim was brought wholly or predominantly for an ulterior purpose. I consider that Mr Lee genuinely wants this matter adjudicated although he confuses it with other unrelated matters.

(16)

Nor am I prepared to say that the lodgment of the second complaint is an abuse of process given that an earlier complaint in identical terms had been lodged in June 2004 against ALH. Mr Lee said in oral submissions, and this was not disputed in submissions for Mr Mitsilias, that the circumstances surrounding the lodgment of that complaint were these. The conciliation process for the first complaint made Mr Lee come to realise that the core issue in his view was Mr Mitsilias. After the conciliation he spoke to an officer of the Commission who told him that he could lodge a complaint against Mr Mitsilias himself. He did this, and in effect abandoned his complaint against Mr Mitsilias' employer ALH. Mr Lee is not a lawyer and it appears has followed the advice of a Commission officer in the way he handled these complaints.

(17)

Under the Equal Opportunity Act if an employee breaches the sexual harassment prohibitions in the Act both the employee and the employer are taken to be liable for that breach and a complaint may be made against either or both of them. This is clear from s.102 of the Act. Given this provision, and what Mr Lee says was the advice of the Commission officer, I am not prepared to say that his use of the complaints process constituted any abuse of process of a kind which would lead me to strike out the second complaint.

(19)

First, the only issue before this Tribunal now is the complaint of sexual harassment. The issues of payment for the accreditation course or any work experience requirement are irrelevant to this claim. The allegations concerning Mr Mitsilias' conduct to employees made by Mr Lee in his letter requesting a referral of his complaint to VCAT are not part of that complaint and are not before this Tribunal.

(20)

Second, it is my understanding that there has been no attempt at mediation at which Mr Mitsilias and Mr Lee and representatives from ALH are present together. This claim seems to me appropriate for referral to mediation as soon as possible. If mediation fails there will then be directions for further steps in the case.

(21)

Third, I do not regard the statement which Mr Lee makes in his letter requesting the Commission to refer this complaint to VCAT, that he acts on behalf of the community, as somehow depriving him of the right given to him under the Equal Opportunity Act to refer the complaint to VCAT. Among other things that right arises where the Commission considers the complaint unconciliable as it did here.

(22)

That concludes my reasons for decision.