The application is for the summary termination of the proceeding. It is not the full hearing of the proceeding.

The Tribunal may deal with the application on the pleadings or submissions alone, or by allowing the parties to put forward affidavit material or oral evidence. The Tribunal's procedure is in its discretion and will depend on the circumstances of the particular case.

If the Complainant indicates to the Tribunal that the whole of his or her case is contained in the material placed before the Tribunal, the Tribunal is entitled to determine whether the complaint lacks substance by asking whether, on all the material placed before it, there is a question of real substance to go to a full hearing. However, if a Complainant indicates to the Tribunal that there is other evidence that he or she can call to support the claim and the Tribunal, on the application, does not permit that evidence to be called, then the Tribunal cannot determine the application on the basis that the Complainant's material contains the whole of his or her case.

An application to strike out a complaint is similar to an application to the Supreme Court for summary dismissal of civil proceedings under RSC r23.01 (see also commentary on this rule by Williams, Civil Procedure Victoria). Both applications are designed to prevent abuses of process. However, it is a serious matter for a Tribunal, in interlocutory proceedings which would generally not involve the hearing of oral evidence, to deprive a litigant of his or her chance to have a claim heard in the ordinary course.

The Tribunal should exercise caution before summarily terminating a proceeding. It should only do so if the proceeding is obviously hopeless, obviously unsustainable in fact or in law, or no reasonable view can justify relief, or is bound to fail. This will include, but is not limited to, a case where a complaint 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.

On an application to terminate a complaint summarily, the Tribunal must clearly distinguish between the complaint itself and the evidence which is to be given in support of it. A complaint cannot be struck out as lacking substance because it does not itself contain the evidence which support the claims it makes.

The test for determining whether a complaint is frivolous, vexatious, misconceived or lacking in substance is different from that applied in other Australian Anti-Discrimination jurisdictions where the legislative context is different from Victoria. It is similar to that applied by the Supreme Court in civil proceedings for the purposes of RSC r23.01.

The Tribunal should not apply technical, artificial or mechanical rules in construing a complaint or coming to a view about the case a complainant wishes to advance.

1. The first and second respondents who appeared in person informed the Tribunal that they agreed with the submissions to be made by counsel for the third respondent. The submissions made by Ms Firkin are broadly expressed as follows:

The MSA is not a "club" within the meaning of section 4(1) and 60 of the Act;

The complainant is not an "employee" of the MSA within the meaning of section 4(10 and 14 of the Act;

The allegation of discrimination on the basis of sex is frivolous, vexatious, misconceived or lacking in substance;

The allegation of discrimination on the basis of impairment is frivolous, vexatious, misconceived, lacking in substance or otherwise an abuse of process.

The allegation of victimisation is frivolous, vexatious, misconceived or lacking in substance.

1. The MSA is an incorporated association governed by its constitution. Its purposes outlined in clause 3 of its constitution relevantly include -

To be the recognised means of communication between students and the academic and administrative authorities of the University;

To administer the funds of the University in accordance with the constitution, whether received from fees collected from students by the University or otherwise;

To make recommendations to the appropriate bodies of the University on the allocation of funds to the MSA;

To use the funds of the MSA for payments of expenses incurred in furthering the purposes of the MSA;

to otherwise protect, promote and develop the interests and welfare of students.

1. The activities of the MSA are various including the publishing of the student newspaper, managing a restaurant and a student bar and organising and conducting various events.
2. Discrimination against club members is prohibited by section 60 of the Act. Section 60 of the Act provides-

A club, or a member of the committee of management or other governing body of a club, must not discriminate against a member of the club-

(a) by refusing, or failing to accept, the member's application for a different category or type of membership;

(b) by denying or limiting access to any benefit provided by the club;

(e) by subjecting the member to any other detriment.

1. The definition of "club" is found in section 4 of the Act which provides -

club, except in section 78, means a social, recreational, sporting or

community service club, or a community service organisation-

(b) that directly or indirectly receives any financial assistance from the State or a municipal council;

1. Although it was put to me that upon enrolment all students become members of MSA I can find no documentary confirmation of that assertion. The membership of MSA is set out in clause 5 of its constitution and thereafter in clauses 20 and 23. Those clauses do not create a membership of students. The membership is instead representative and expressed to be the voting members of the Monash Student Council, the voting members of the committees and the voting members of the governing bodies of the divisions. However, clause 42(2) of the constitution provides that "all students may vote in MSA elections" -to my mind, in the face of a specific provision to the contrary, that does not give rise to a conclusion that all students are members.
2. Part 3 of the constitution provides that the MSA will include various divisions, and insofar as one of those divisions is said to be the Clubs & Societies Council (defined as the body within MSA that represents clubs and societies "MSC"), that does not, as submitted to me, make the MSA a club. It is a body that represents various clubs. And in the absence of any indication to the contrary I assume that the copy of the constitution presented to the Tribunal and marked attachment A to the affidavit of Sarah Cousins and headed "Constitution - Amended 2006" is the current constituent document.
3. It was submitted for the complainant that since 2006, students do not automatically become members of MSA, rather they must voluntarily join the MSA by paying a membership fee. As authority for this I was referred to the amendments made to the higher Education Support Act 2003 by the Higher Education Support Amendment (Abolition of Compulsory Up-front Student Union Fees) Bill 2005. Again, although this may in fact be what occurs, it is not as a result of the legislation referred to. The amending legislation does precisely what it sets out to do, that is to abolish compulsory union fees; it does not provide for the payment of student membership fees. In the constitution, the MSA's source of funds is set out in clause 47 as amenities fees collected from students and other sources approved by the Monash Student Council ("MSC") although from the university website (which may or may not be correct), I glean that amenities fees have long been abolished.

The description of a club contained in Wertheimer on Clubs applies to most clubs:- "A club may be defined as a voluntary association of a number of persons meeting together for purposes mainly social, each contributing a certain sum with to a common fund for the benefit of the members or to a particular individual for his own benefit."

1. His Honour then continued to give a variety of examples of what could constitute a club, noting that it was possible for a voluntary association to be a club notwithstanding the absence of contributions.
2. Dixon J, as he then was, (McTiernan J agreeing) considered:

"Club" is a word possessing a very wide and flexible meaning

In Bohemians Club v Acting Federal Commissioner of Taxation [1918] HCA 16; (1918) 24 CLR 334,337 Griffith CJ describes a club as a voluntary association of persons who agree to maintain for their common personal benefit, and not for profit, an establishment the expenses of which are to be defrayed by equal contributions of an amount estimated to be sufficient to defray those expenses, and the management of which is entrusted to a committee chosen by themselves. This description, which contemplates a members' club, resembles the definition I have taken from the Oxford English Dictionary and, though it may include some merely accidental features, as for instance the equality of the subscriptions, nevertheless by the insistence of an establishment for the common personal benefit of the members, it brings out what is of importance in applying the law with which we are concerned.

1. Given the nature of the MSA, its expressed objectives, its constitution and its role in the life of the university, it does not strike me that the MSA fits comfortably within the description of being a social, or recreational, or sporting or community service club or even an amalgam of those categories. MSA is not maintained for the common personal benefit of members and its expenses are not defrayed by equal contributions from the members (who, as mentioned earlier, are said to be the voting members of the Monash Student Council, the Committees and the governing bodies of the Divisions).
2. Even were I to consider that MSA is a "club" (and I do not so find) that is not the end of the matter. The Act provides that is must be a club that either occupies Crown land or is in receipt of financial assistance (whether directly or indirectly) from the State or a municipal council. It is not in dispute that the land on which the university stands is owned by Monash University which became the registered proprietor in 1978. It is not Crown land.
3. Mr McKenna who appeared for the complainant made two submissions in relation to whether or not MSA received financial assistance from the State, there being no suggestion it receives anything from any local council. His first was that the university itself is funded from State and Commonwealth money which in turn channels funds to MSA and that constitutes financial assistance. It must be said he did not pursue this line of argument with much vigour and I doubt his heart was in it. I reject that submission out of hand.
4. In the complainant's written submissions, the case for financial assistance was fleshed out as follows:

As described at paragraph [9] of the affidavit of Sarah Collins [but presumably they mean Sarah Cousins], the MSA has received funds from the Department of Innovation, Industry and Regional Development on behalf of the State of Victoria. In the absence of further information regarding the provision of these funds, which should be obtainable by way of request under the Freedom of Information Act 1982, it is submitted that it would be premature to determine that the MSA is not a club pursuant to s44(1) of the EO Act.

1. Sarah Cousins is an elected member of the MSC. She was elected as the Activities Officer for 2008 and was re-elected for 2009 and is now the elected Treasurer. At paragraph 8 of her affidavit she stated that MSA is funded by grants from Monash university and various revenue raising activities of its own. In paragraph 9 she stated -

I made enquiries with Ms Sylvia Francesca, the Finance Manager for the MSA. Based on these enquiries, I believe that in 2009, the MSA began conducting accredited training and certificate courses for people absent from education, training and/or the workforce for over two years, including people caring for children, recently arrived migrants and other people returning to the workforce after an extended absence. Based on my enquiries with Ms Francesca. I believe that the Department of Innovation, Industry and Regional Development, on behalf of the State of Victoria, paid to the MSA in October 2008 money in advance for courses to be held in 2009. Also based on my enquiries with Ms Francesca I believe that other than these funds, the MSA has not received money, or financial assistance, from the State or a municipal council.

1. Mr McKenna submitted there was a possibility some evidence might be available at the ultimate hearing of this matter to the effect that the prices paid for the courses might not have been the product of genuine commercial transactions and, as a result, it would follow there was some form of inbuilt financial assistance. It was part of the complainant's written submissions that this matter should not be struck out where there is some remote possibility that further evidence might be brought before the Tribunal. No evidence was advanced that a freedom of information application had been made and when I enquired from Mr McKenna about the real possibility of any evidence being adduced he informed me he was unable to obtain instructions. I have no confidence that such evidence will be forthcoming for the following reasons:
   • The complainant was the treasurer during the period when the funds were received (October 2008) and the knowledge of the transaction would surely have been within the scope of her position. She was after all responsible for the day-to-day management of the funds of MSA.

• If the courses were not priced at a commercial rate, the subject of them must surely have been discussed at the meetings attended by the complainant in her capacity as treasurer.
• The receipt of the funds took place outside the scope of the complaint.
• Further, the complainant has been on notice of this issue since November 2008 and has had ample opportunity to explore the matter and produce further evidence were it available.

1. The complainant's claim relating to her discrimination as a member of a club is dismissed.
2. The next issue for consideration is whether the complainant is an employee of MSA. As there are no points of claim filed in this matter it is necessary for me to elicit the substance of the complaint from the Statement of Complaint filed with the Commission. As I understand the complaint Ms Mik makes in relation to employment, it is that the president and other members of the Monash Student Council failed to support her impairment and publicly tried to humiliate and discredit her because of that impairment; further there discrimination brought to bear by virtue of the standing orders of the Monash Student Council relating to who should chair meetings. In the written submissions provided to the Tribunal the complainant also alleged indirect discrimination stating that she was required to comply with "unreasonable rigid working conditions". The complaint about a requirement to comply with rigid working conditions was not a matter raised before the Commission and thus the Tribunal has no jurisdiction. It follows the complaint of indirect discrimination is dismissed.
3. It is not disputed that Ms Mik suffers from post glandular fever chronic fatigue syndrome and for the purposes of the exercise I will accept that this is an impairment as that term is defined in the legislation.
4. So, was Ms Mik an employee? She receives an honorarium from the MSA. Her pay slips indicate that taxation is deducted from the amount paid to her, employer contributions to superannuation are made and an annual PAYG summary is issued to her.
5. Section 4(1) of the Act defines "employee" to include -

a) a person employed under a contract of service, whether or not under a workplace agreement, employment agreement or award within the meaning of the Workplace Relations Act 1996 of the Commonwealth;

(b) a person employed under the Public Administration Act 2004 or appointed to a statutory office;

(c) a person engaged under a contract for services;

(d) a person who is engaged to perform any work the remuneration for which is based wholly or partly on commission- but does not include an unpaid worker or volunteer;

1. Discrimination against employees is prohibited by section 14 of the Act. That section provides -

An employer must not discriminate against an employee-

(a) by denying or limiting access by the employee to opportunities for promotion, transfer or training or to any other benefits connected with the employment;

(b) by dismissing the employee or otherwise terminating his or her employment;

(c) by denying the employee access to a guidance program, an apprenticeship training program or other occupational training or retraining program;

(d) by subjecting the employee to any other detriment.

1. Ms Mik was elected to her position as treasurer. The responsibilities of her role are set out in clause 37(5) of the Constitution as follows:

The treasurer is subject to the direction of the MSC, and is responsible on behalf of the MSC for:

(a) the day-to-day management of the funds of the MSA;

(b) ensuring that the MSA keeps proper accounting records, including true and fair accounts;

(c) ensuring that the MSA establishes and maintains effective financial management systems;

(d) providing monthly financial reports to the executive and the MSC; and

(e) ensuring that accounts of the MSA are audited in accordance with clause 53.

1. She receives (as do other office bearers) an honorarium. Those honoraria were determined at a meeting of the MSC held on 16 October 2007. The amount due to each office-bearer in 2008 was linked to the fraction allocated to their specific role. The fraction allocated to the treasurer's role was 0.8, equivalent to 32 hours per week. There were no fixed hours of duty. She was required to submit a weekly time sheet as an accountability measure and those hours were required to be completed during the time students were on campus, from 8 am to 6 pm. Full time paid office-bearers were entitled to four weeks paid annual leave and two weeks paid sick leave and Ms Mik's entitlement was determined on a pro rata basis. As an office bearer she could not be removed from office save by resolution as prescribed by the constitution or pursuant to a binding decision of a student general meeting or referendum. Regulation 4 of the MSA Office-bearer Regulations provides that should an office-bearer breach the regulations, his or her salary may, by a resolution passed by an absolute majority, be suspended, reduced or removed; further, if office-bearer hours are unrecorded, pay is automatically suspended.
2. Ms Firkin submitted (quite correctly) that the two issues for consideration in determining whether the complainant meets the definition of an "employee" within the meaning of section 4(1) of the Act are first, whether she is an employee at common law and second, whether she is an employee within the broader meaning of an "employee" in section 4(1).
3. Mr McKenna submitted that the definition in the Act is a broader definition of employee than exists at common law. He submitted that the relationship between Ms Mik and MSA (and between the first and second respondent and MSA) bears the indicia of an employment relationship and that primary amongst those indicia is that of control. He submitted that it was highly significant that the elected officers of MSA were subject to the direction of MSC and that they owed specific duties to MSA including the duty to act honestly and in good faith, the duty to exercise reasonable care and diligence and the duty to ensure that they did not make improper use of their position or information obtained by virtue of their position.
4. I was referred to a number of cases by counsel. The most analogous of these was the case of which was relied upon by the respondent. Mr McKenna submitted that I should not have regard to this case preferring that I consider ; His rationale was that the decision was not a decision of a court and that I was not bound to have regard to it. The case concerned a female ordained minister of the Church of Scotland who had been appointed to the position of associate minister in a Church of Scotland parish for a period of five years on terms which included the provision of a stipend and a manse. The House of Lords held that, amongst other things, the terms and conditions of her appointment and the services she was required to provide in return for her salary and other benefits constituted a contract personally to execute work within the definition of "employment" as that term was determined in the 1975. At paragraph 20 of his judgment Lord Nicholls of Birkenhead considered the matter of "holding an office" generally and stated -

Less clear cut are cases where an organisation, ranging from, the local golf club to a huge multi-national conglomerate, makes provision in its constitution for particular posts or appointments such as chairman or vice-president. In a broad sense these appointments may well be regarded as "offices". But caution needs to be exercised here, lest the use of this term in this context lead to a false dichotomy: a person either holds an office or is an employee. He cannot be both at the same time. This is not so. If "office" is given a broad meaning, holding an office and being an employee are not inconsistent. A person may hold an "office" on the terms of, and pursuant to, a contract of employment. Or like a director of a company, a person may hold an office and concurrently have a service contract. Whether there is a contract in a particular case, and if so what is its nature and what are its terms, depends upon an application of familiar general principles. That the appointment in question is or may be described as an "office" is a matter to be taken into account. The weight of this feature will depend upon all the circumstances. But this feature does not of itself pre-empt the answer to the question whether the holder of the "office" is an employee. This feature does not necessarily preclude the existence of a parallel contract for carrying out the duties of the office even where they are statutory.

1. The Depasquale case on the other hand (a case heard by an expert employment commission) concerned an application by Ms Depasquale and two others who sought determinations that they had been dismissed and that their dismissal was harsh unjust or unreasonable. The respondent denied that it had ever employed the three applicants pursuant to any contracts of employment, let alone dismissed them from employment. The decision was given by Deputy President Stevens and he noted that "some of the trappings and emoluments associated with the concept of paid employment did emerge". Those trappings included the completion of employment declaration forms for taxation purposes, membership forms for superannuation purposes, employment separation certificates for social security purposes and the payment of leave loading upon termination. Notwithstanding the presence of those trappings he held that the applicants were at all times paid officers of the association and that he could find no intention to employ. He noted they had no fixed hours of duty, could come and go as they pleased providing they carried out their prescribed duties, and received their remuneration and other benefits solely arising out of holding the particular office.
2. It is not necessary for me to consider the other cases in the context of this application. The issue of whether the complainant is an employee is one of mixed fact and law and I note that the existence of what Deputy President Stevens described as "trappings" is not admitted entirely by the respondent. Although the Percy case has some features peculiar to religious organisations and the clergy, the reasoning of Lord Nichols is most persuasive. In the circumstances where they may be some evidence to be adduced about the circumstances of the complainant's "office" and her terms, condition and duties I do not consider it would be either prudent or correct to dismiss this part of her claim on the basis that she is not in employment.
3. That said, I do propose to strike out that part of the complaint relating to the chairing of meetings. The relevant specific allegation of sex discrimination states -

That as a female Ms Mik was required to Chair every second executive meeting and thereby could not vote on proceedings and the actions of Mr Hilakari encouraging other members of the Monash Student Council to vote against a reform to [the] rule amounting to direct discrimination.

1. The background to this allegation is as follows. When Ms Mik was elected and took up her role there was in place some Monash Student Council standing orders. Standing Order 3 was headed "Chairing of the MSC" and provided -
   • 3.1 Meetings shall be chaired pursuant to the Constitution.
   • 3.2 At least every second meeting must be chaired by a woman.
2. According to clause 20 of the MSA constitution, the membership of the MSC was constituted by some twenty individuals, of whom the complainant was one. There was also an underlying executive of the MSC and it was duly constituted by five members and once again, the complainant was one of the five. Clause 24 of the constitution provided that meetings of the executive and voting thereat was to be on the same basis as meetings of the MSC. Clause 21 provided that the chair had a casting vote only.
3. The complaint of the applicant is that because she was the only female on the executive committee she was denied the opportunity to vote and that this was discriminatory and thus prohibited. (Of course this is not an entirely accurate statement because, in the event of a tied vote, she had a casting vote.) However on 7 February 2008 at a meeting of the MSC a unanimous motion was passed to amend the standing orders by the addition of the following sub-clause -

3.2.1 Where no woman wishes to take the chair, the meeting may proceed with a male chair.

1. The minutes of the 7 February meeting produced to the Tribunal indicate that the motion was passed at the third MSA meeting for the 2008 year. It follows that the standing order complained of was only in place for, at best, two meetings of the MSA (as distinct from meetings of the executive) during the period of the complainant's tenure. I observe from the minutes that she was not the chair at the meeting on 7 February 2008. The Tribunal is not aware of the number of executive meetings in the short time frame at the commencement of the year but assumes they were few in number, if any at all. It is for this reason that I intend to dismiss that part of the complainant's claim for the reason that it is frivolous, misconceived and totally lacking in substance. I will not go into the other jurisdictional difficulties faced by Ms Mik in relation to this part of her complaint because it is not necessary in the circumstances.
2. The result is that the following allegations of discrimination remain to be dealt with at a hearing -

That as a result of suffering from post glandular fever chronic fatigue syndrome, Ms Mik was subjected to direct discrimination in the form of humiliation and denigration by Mr Hilakari;

That as a result of complaints made by Ms Mik about discrimination Ms Mik was victimised by being subjected to additional detriment;

That as a result of suffering from post glandular fever chronic fatigue syndrome Ms Mik was subjected to direct discrimination by Mr Hilakari and Mr Campbell relating to an election poster stating that "The current Universal Treasurer has not been to work for over three weeks. She does not want to produce a doctor's certificate, even though she says she is sick. She was well enough to go to a Universal Fundraiser at a bar, attend class, take a trip to Sydney and keep taking students money[sic]."

1. The above allegations have been left for final hearing and not dismissed notwithstanding the material presently before the Tribunal appears slight and insubstantial. The Tribunal understands that further evidence will be available at the hearing to flesh out the complaint beyond its present form.
2. The complainant also alleges victimisation at the hands of Mr Hilakari. At paragraphs 10 and 11 of her statement to the Commission she set out the following:

10. I have also faced significant discrimination as a result of my impairment. Mathew Hilakari has been consistently judgmental and unsympathetic to my illness. I tried to resolve the issues he had with me. In April 2008 (21st and 22nd) I had three informal meetings with Matthew Hilakari regarding harassment. At the first of these meetings I explained to him that my illness can cause me to be late or absent unexpectedly and I asked him to be less judgmental as my illness is not something I can control. I also asked that he update me if I was unable to attend or was late. Mr Hilakari responded with "well every time you're running late to a meeting I'm not going to stop and hold a minute's silence for you" he also told me that he refused to stop being judgemental and would not be understanding if I was late or absent. Mr Hilakari also told me that it was my responsibility to update myself on what I miss whilst I am away and that he wouldn't give me a "word for word re-gurgitation of meetings". I found Mr Hilakari's attitude completely inflexible and discriminatory. I was also accused of never doing any work, repeatedly during these three meetings he would say "you never do any work". When I pointed out to him that he frequently makes negative comments about me and my work but hadn't made a single positive comment this year about me or my work, he replied that this was because he couldn't find a single positive thing to say about me, and that he doesn't understand what I do with my hours because I don't do any work. I always gave my job everything I had and just needed some support and assistance while I caught up with what I had missed.

11. I continued to feel discriminated against and victimised by Mathew Hilakari. I was left out of important meetings and would often only find out afterwards that they had been held. He would not respond to my emails, and he told me I wasn't needed at these meetings.(sic)

1. Section 97(1) of the Act describes victimisation as follows -

(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-

(b) has brought any other proceedings under this Act against any person;

(c) has given evidence or information, or produced a document, in connection with any proceedings under this Act;

(d) has attended a compulsory conference at the Tribunal;

(e) has otherwise done anything in accordance with this Act in relation to any person;

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

(g) has refused to do anything that would contravene a provision of Part 3, 5 or 6-

or because the person believes that the other person or the associate has done or intends to do any of those things.

1. Clearly paragraph (a) has no application, "complaint" being a defined term; the only other possibility is that there has been an allegation of a contravention of Part 3, 5 or 6 of the Act as provided in sub-section (f)
2. The context of this allegation seems to be that due to the complaints of discrimination in employment, (including the election issue) Ms Mik alleges victimisation by Messrs Hilakari and Campbell arising out of the same matters pleaded in paragraph 43 hereof. The Tribunal notes that the matter relating to the election posters was dealt with (unsuccessfully Ms Mik would say) within the structures of the MSA's own rules and regulations but because I have not struck out those matters relating to discrimination in employment it follows that the claim of victimisation remains on foot.
3. The Tribunal makes the following orders

The complainant is to file with the Tribunal and serve on the respondents particulars of the remaining claim no later than 5 June 2009.

The respondents are to file with the Tribunal and service on the complainants particulars of defence (if anything further is required) on or before 19 June 2009

This matter is listed for mediation at 10.00 am on 29 June 2009 at 55 King Street Melbourne. The individuals must attend in person and a representative of the third respondent with authority to settle the matter must attend. The legal representatives of the parties may attend.

The complainant is to file with the Tribunal and serve on the respondents witness statements on or before 10 July 2009.

The respondents are to file with the Tribunal and serve on the complainant witness statements on or before 24 July 2009

Unless the Tribunal gives leave and save in accordance with these orders, neither party may:

(a) present a case at the hearing different from that contained in the material lodged by that party in the proceeding;

(b)call a witness whose statement has not been provided;

(c)seek to adduce further evidence in chief beyond that contained in the statement of a witness's evidence lodged with the Tribunal.

List for hearing as a two (2) day matter on 29 July 2009