He says (see para 57 of his statement) that on 6 October 2000 Commander Smith told him one CIB Reliever could provide relief to all of the CIU Divisions in No 1 and 2 Divisions of Region 5 and that another person would be better suited to being the reliever as he had no disability.

He says (see RM 8) that on 17 October 2000 a decision was made requiring him to be transferred as a consequence of him not being able to qualify for the OSTT.

He says (see RM 14 and RM 15) further that from May 2004 onwards there is an unwillingness to transfer him from his current position (limiting him to request a transfer to a non-operational position), because of the requirement to hold a current OSTT qualification for an operational position.

4 Particulars of Claim and Defence have been filed, as have the complainant's statements and material on which he relies.

5 The respondent has applied to have the complaint struck out under s 75 of the Victorian Civil and Administrative Tribunal Act 1998. The application claims the complaint should be struck out on each and every ground available under the legislation.

6 The hearing of the strike-out application proceeded before me on the 18 and 29 November 2005. Mr Murphy of counsel represented the respondent and Mr Farouque, solicitor, represented the complainant. Both parties had filed written submissions and spoke to the submissions in this hearing.

7 There is no need to set out the principles that need to be applied in any strike-out application. They are well known to the parties.

8 Whilst Particulars of Claim have been filed, they are not well articulated, but seem to have been understood by the respondent.

9 An examination of the particulars reveals three events, which it is alleged form the basis of the complaint. Discrimination in breach of s 14(a) and possibly (d) of the Act, which prohibit discrimination of an employee on the ground of an attribute, is alleged. Section 14(a) says that an employer must not discriminate against an employee by denying or limiting their access to opportunities for promotion, transfer or training or to any other benefits in connection with the employment and section 14(d) says an employer must not discriminate against an employee by subjecting the employee to any other detriment. The attribute claimed is the applicant's impairment.

10 There are three events relied on. The first event is the choice of another to remain in the OIC position in preference to the complaint. He alleges this was because of his impairment. It is a complaint of direct discrimination in breach of s 8 of the Act.

11 The second and third events are claims of indirect discrimination in breach of s 9 of the Act. It is clear from all the particulars that the requirement the applicant says the respondent imposed, is the requirement that for an operational position, one must have the OSTT qualification. He claims that requirement is unreasonable, he cannot meet it where others without an impairment can.

12 The respondent applies to have the complaint struck out. Quoting from the application, para 2 says :

(a) the complaint is misconceived as there has been no conduct by the Respondent capable of constituting discrimination contrary to the provisions of the Equal Opportunity Act (the Act);

(b) the complaint is vexatious, misconceived, an abuse of process, or otherwise brought for an improper purpose as :

(i) the Complainant has failed to access and or exhaust other remedies available to him to redress any discriminatory conduct;

(ii) the Complainant has improperly and inexcusably delayed in making a complaint under the Act, or alternatively has acquiesced in the conduct said to be discriminatory;

(iii) in prosecuting this complaint the Complainant is improperly seeking to have the Tribunal determine arrangements governing the Victoria Police Force that had been reposed in the Chief Commissioner;

(iv) in so far as the complaint relates to any future conduct, it is premature as the Complainant has not exhausted his remedies.

13 The submissions then proceed to refer to the Powers of the Chief Commissioner under the Police Regulation Act 1958 and Police Regulations; the Force requirement that operational officers have a current OSTT qualification and background material about the position the complainant had held and some restructuring.

14 The thrust of the respondent's first submission is that because of the superior officer's authority, protected by force of statute (Police Manual) any action complained of is protected from allegations of discrimination by reason of s 69 of the Act. On that basis alone, the respondent submits that the removal and transfer decisions are misconceived and lacking in substance. More particularly, the respondent contends that the "removal" and "transfer" decisions are authorised under the Workforce Restructuring and Mobility Agreement.

15 Mr Farouque submitted such a broad construction of s 69 is not sustainable and contrary to the evident purposes of the Act, being one which binds the Crown. He referred to Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 and the observations made at 367-370 that the exemption should be construed narrowly and also to Hampson v Department of Education & Science [1990] UKHL 15; [1991] 1 AC 171.

16 Section 69 of the Act is a general exception, it states -

(1) A person may discriminate if the discrimination is necessary to comply with, or is authorised by, a provision of -

(b) an enactment, other than an enactment under this Act.

(2) For the purpose of sub-section (1), it is not necessary that the provision refer to discrimination, as long as it authorises or necessitates the relevant conduct that would otherwise constitute discrimination.

(3) Section 47(3) and 58(1) prevail over this section to the extent of any inconsistency between them.

17 The meaning and application of s 69 of the Act has been considered in other proceedings in this Tribunal and its predecessor.

18 In Wojcik v Roads Corporation [1997] VADT 75 Ms McKenzie, President of the Anti-Discrimination Tribunal, as she then was, considered the application of the exception in s 69. In that case, Vic Roads was seeking to rely on the exception in s 69. At p 10, the President said :

Vic Roads also relies on the exception in s 69 of the Act. That provision appears in Part 4 of the Act. That Part is headed "General Exceptions to and Exemptions from the prohibition of discrimination". The effect of s 12 is that, where a provision of Part 4 applies, the Act does not prohibit discrimination. Section 69 is in similar but not identical terms to s 39(e)(ii) and (iii) of the Equal Opportunity Act 1984. That provision stated that the Act did not render unlawful "an act done by a person if it was necessary for that person to do it in order to comply with a provision of -

(iii) an instrument made or approved by or under any other Act"

It is clear from the judgment of Mason CJ and Gaudron J (with which Deane J agreed) and from the judgment of Brennan J in Waters v Public Transport Corporation ([1991] EOC 92-390) that, for s 39(e)(ii) to apply, the other Act or instrument must directly and specifically authorise the conduct in question. A general provision granting to the minister a power of direction, where a desired aim could be achieved through the exercise of that power either in a discriminatory or a non discriminatory way, is not enough. A power in these terms was given by s 31 of the Transport Act 1983, and the majority of the High Court held in the Waters case that s 39(e) did not apply to directions given under that power.

Section 69 of the Equal Opportunity Act 1995 contains an exception similar to that in s 39(e)(ii) and (iii) of the Equal Opportunity Act 1984. It covers conduct necessary to comply with an Act or enactment. However, it contains an additional provision. It also covers conduct authorised by an Act or enactment. This is a far wider formulation. It does not only cover the case where it can be said that the relevant conduct was strictly necessary to comply with the relevant statutory provision. It covers a case where the relevant statutory provision can be said to authorise relevant conduct. A statutory provision can be said to do this if it requires the relevant conduct or, expressly or by necessary implication, permits it. Section 69(2) is a provision not included in s39(e) of the Equal Opportunity Act 1984. Section 69(2) makes it clear that the relevant statutory provision may not refer expressly to discrimination. However, the sub-section also makes it clear that the relevant statutory provision must nevertheless authorise or necessitate relevant conduct.

19 The Tribunal went on to consider the legislative scheme relied on by Vic Roads to refuse, in that case, Mr Wojcik's driver's licence. It considered the application of the Road Safety Act and Regulations for the purposes of the Act and Guidelines for the medical examination of commercial vehicle drivers.

20 Pertinent to this case, as part of the President's reasons for finding that Vic Roads' conduct was not so clearly authorised within the terms of s 69 of the Act to find the complaint hopeless, she stated at p 19 :

Second, it is doubtful whether the guidelines would amount to an enactment within the meaning of s 4 of the Act. It is not clear from the material before me that the guidelines have been prepared under an Act. It is not clear in what capacity the Australasian Faculty of Occupational Medicine prepared these guidelines. No material is before me to show how the Guidelines may have been adopted by the Road Transport Commission or the Ministerial Council. The title of the Guidelines indicates that they may not have compulsive force. They may not be an instrument "of legislative character".

21 Further, in Leighton v State of Victoria [2000] VCAT 416, Deputy President McKenzie, considering the scope of s 69 said the following :

Even though s 69 is wider than s 39(e) there are still limits on its application. Section 69 will cover conduct authorised or permitted by another relevant Act or Enactment as well as conduct necessary to comply with that Act or Enactment. Though the Act or Enactment need not use the term discrimination or be worded in a way that clearly refers to concepts or terms used in the Equal Opportunity Act, and need not refer to the Equal Opportunity Act itself, it must still authorise or necessitate the relevant conduct.

22 I do not accept Mr Murphy's submission that any action because it is authorised under the Police Regulation Act 1958 or Regulations is protected by s 69. Such an Act must still authorise or necessitate the relevant conduct. Whilst that Act or the Regulations might contain general powers, such as the Commissioner's general power under Regulation 501 to transfer officers, Mr Murphy did not draw my attention to any statutory provision that authorised the relevant conduct, being the removal from the position Mr Mottau held, his transfer to the Training Department or the unwillingness to transfer him to an operational position.

23 More difficult is whether the transfer to the Training Department was pursuant to the Workforce Restructuring and Mobility Agreement to which the complainant and the respondent are a party and, if so, whether that Agreement is an "enactment" as defined in s 4 of the Act. If I can be satisfied it was pursuant to that Agreement and authorised by it, and it is an instrument of a legislative character, then the exception in s 69 Part 4 of the Act can have application. If the exception in s 69 applies, s 12 of the Act says that the discrimination is not prohibited.

24 The 1996 Agreement was an Agreement made pursuant to the Employees Relations Act 1992 (Vic). Later, Victoria referred all its powers to the Commonwealth. In 1998 a Certified Agreement was made under the Workplace Relations Act 1996 (Cth) (WRA). As I understand it, the 1998 agreement has full force and effect and remakes the 1996 agreement and is made under Commonwealth law.

25 The respondent contends that the 1996 Agreement is an enactment because it is an instrument of a legislative character. The parties were given leave to file written submissions on this point. The complainant's submissions refer to a decision of the High Court in R v Kelly; Ex parte State of Victoria [1950] HCA 7; (1950) 81 CLR 64. The High Court held that an industrial award was an instrument of a legislative character. At p 81 the High Court relevantly observed that :

When it is said that industrial awards are of a legislative character the point of the statement is to be found in the fact that such awards prescribe rules of conduct for the future in respect of the disputing parties and do not determine the rights and duties of those parties under the law as it already exists.

26 The complainant submitted that an industrial agreement given effect to under statute by its nature prescribes rules of conduct for the future and does not determine the rights and duties of those parties under the law as it already exists. Consequently, based on the decision of the High Court in R v Kelly such an agreement is of "legislative character".

27 In light of those concessions I accept that the Agreement is an instrument of a legislative character. But that is not the end of the matter. Mr Farouque submitted in essence that the powers under the Agreement are only enlivened by certain pre-conditions. An officer must be returning to duties.

28 Part 7 of the Agreement is directed to "employees" who are declared medically incapacitated - work-related illness or injury". The clauses the respondent relies on, like Cl. 67, apply to employees "who have an ongoing incapacity to return to the duties of their position". Clause 69 requires the medical officer to examine and advise about "returning to full duties of his/her current position". Clause 72 permits the Chief Commissioner, in accordance with medical advice, to authorise return to full duties etc or to transfer an officer to another position.

29 As I understand the facts, Mr Mottau actually occupied the position of relieving senior sergeant in 2000/2001. He maintains he was already performing all his duties and had already returned to duties after his stroke in 1992.

30 The applicant also contends that it is not clear whether he was actually transferred under Cl. 72 of the Agreement rather than under Regulation 501 by the Commission. Certainly the correspondence between the parties at the time is far from clear.

31 The letter dated 17 August 2001, from the Mobility Services Branch, refers to a Regulation 501 transfer and there is no reference to the transfer being pursuant to Cl. 72 of the Agreement.

32 The respondent may dispute this, but there is a factual dispute about whether the agreement was ever enlivened and, in those circumstances, that issue is not amenable to resolution in a strike-out hearing. There are a number of factual matters in dispute, such that I could not find in these circumstances, at a strike-out hearing, that the exception under s 69 as it applies to the Agreement is made out.

33 Mr Murphy next submitted that the removal complaint is misconceived or an abuse of process. As I understand it, the submissions focus on the first and second events.

34 The first event concerns a complaint of direct discrimination. In his statement, the complainant says at paragraph 57, another officer was chosen instead of him to be the relieving officer because that officer had no disability. In his Particulars, he claims in paragraph 6 that he was discriminated against on the basis of his impairment in that he was prevented from continuing to relieve within the Region.

35 The respondent denies the claim and submitted in its Particulars of Defence that the decisions about relief in the Region were made having regard to

a

the complainant's operational ability following the stroke;

b

operation requirements

c

the fact that the complainant was unable to complete OSTT.

36 These particulars of defence are somewhat at odds with Inspector Cameron's statement (Attachment 'D' to respondent's submissions). At p 4 he says :

The consideration of non-qualification of OSTT was never a consideration in my mind due to his physical and health disability/liability and due to the lack of medical reports, current assessment or active return to work plan, I consider that to invoke the OSTT qualification process would have been out of order and certainly not in his best interest.

37 The respondent submits that his claim cannot succeed, because there was no differential treatment that could constitute discrimination under s 8(1). It is submitted that the comparator is a police officer in similar circumstances without the disability and the complainant must satisfy the Tribunal that a substantial reason for the treatment was his disability.

38 If the complainant can satisfy the Tribunal that the substantial reason was his impairment and it is that impairment without any reference to the OSTT requirement, aside from any comparator arguments, it is possible the claim might succeed.

39 To succeed in a claim of direct discrimination, first one has to be satisfied about what the substantial reason for the alleged conduct was. This is not clear.

40 The reasons for removal from the relieving position need to be tested by the hearing evidence. It is premature to strike it out.

41 In submissions the respondent also submits that the complainant cannot require the respondent to modify rules of general application for his benefit and referred to State of Victoria v Schou (No 2) [2004] VSCA 71; (2004) 8 VR 120 a decision of the Court of Appeal.

42 Section 9 of the Act prohibits indirect discrimination. As I said, a careful reading of the complaint identifies that a requirement that the complainant says has been imposed, is the requirement to comply with OSTT for operational positions. That is, one has to be able to comply with the OSTT requirement for any operational position.

43 The particulars of complaint are not expressed with clarity. They appear to inextricably link the removal from the roster and his transfer. As I understand it though, the second event is the transfer, and the third event is the later alleged unwillingness to allow him to transfer to an operational position. He claims these actions constitute indirect discrimination. A reading of paragraphs 18 to 21 of the Particulars refers to the imposition of an OSTT requirement with respect to both of these events, which requirement he claims is unreasonable, albeit by reference to what he asserts he has been able to do in the position in the past.

44 In complaints of indirect discrimination, following Schou's case, the first question under s 9 is whether the condition or requirement is itself unreasonable. This task must be undertaken before considering the complainant's particular situation. I do not accept Mr Murphy's submission that the decision in Schou means that one can never require a respondent to modify rules of general application for their benefit, if by that he means that one is prevented from making a complaint of indirect discrimination.

45 The claim of indirect discrimination needs to be decided by the calling and testing of evidence and my attention was drawn to material the complainant intended to rely upon. Whilst one cannot simply require an employer to modify rules of general application for their benefit, that does not mean one cannot make a complaint that a general rule is discriminatory and seek remedies under the Act.

46 Next, the respondent contends that in the context of the legislative and industrial framework within which the complainant finds himself as a sworn police officer, with the inherent obligations that imposes on him and on the respondent, his complaint is misconceived or otherwise an abuse of process.

47 The respondent then refers to

•

the mutual rights and obligations placed upon a public officer within the public sector under the Public Sector Management and Employment Act 1998 and its successor the Public Administration Act 2004

•

industrial instruments applicable to the complainant being the Victorian Public Force Certified Agreement 1998 and the Workplace Relations Act 1996 and a 1996 Collective Employment Agreement which authorise removal and transfer decisions

•

obligations at common law to co-operate in employment

•

implied obligations to maintain trust and confidence

•

implications on claims under the Act of alternative resolution mechanisms available in the framework

48 The submissions then raised the following contentions :

In considering whether it is appropriate to stay this proceeding as an abuse of process or having been brought for an improper purpose, the Tribunal must consider whether, within the overall statutory and common law architecture of anti discrimination laws, this complaint ought proceed. Under the Act, upon receipt of a complaint by the Commission, it may decline to proceed to investigate it if the subject matter would be more appropriately dealt with by a tribunal or a court: s 108(1)(b). That is an indication that other remedies may be appropriate. Similarly, it cannot be the case that the legislature envisaged that complainants could seek to access a general tribunal when they had the opportunity to ventilate their grievances by way of appeal processes, or by resort to a specialist body such as the AIRC which deals with workplace disputes, and is mandated to give effect to equal opportunity principles, under legislation which postdates the Act.

Again, it can hardly have been expected that the legislature would seek to provide a remedy by way of a statutory tort to those who do not discharge their own contractual and common law obligations to avoid loss and damage or to exhaust internal remedies to address the subject of complaint, or who for no substantive reason choose not to act in a timely manner or to prosecute available remedies. By analogy with the interpretation of a legislative scheme wherein the principle is that where there are conflicting provisions in an Act they are to be interpreted on the basis that the legislature was intending to give effect to harmonious goals, so too where there are multiple mechanisms available to achieve the end of preventing discrimination, then the various provisions ought to be given effect in a harmonious way, with a presumption that mechanisms established are to be given effect to by those impacted, and that individuals ought look after their own interests before seeking recourse to the law : Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; [1998] 153 ALR 490.

The categories of abuse of process are not closed: Sea Culture International Pty Ltd v Scoles [1991] FCA 523; (1991) 32 FCR 275. One basis upon which superior courts have been prepared to stay proceedings is that the proceedings involve a waste of court resources. .....

49 In his reply Mr Murphy made further detailed submissions about why the complaint should not be allowed to proceed.

50 He referred to Mr Mottau's transfer to the Teaching Unit, his acceptance of that transfer and the Force's reliance on his acceptance by placing someone else in the position he was transferred from. He submitted that Mr Mottau had elected to do that and should therefore not be allowed to proceed here. He referred again in detail to the provisions in the Mobility Agreement, and Mr Mottau's failure to avail himself of a medical re-examination. He submitted that Mr Mottau's failure to challenge matters at that time, indicated that this complaint was lacking in substance and should be struck out.

51 In summary, counsel contended that his failure to take action either by prerogative writ, failure to seek medical review under Cl. 71 of the Agreement, failure to put forward special circumstances "prior to the Regulation 501 transfer" and failure to apply to the Police Appeals Board for review of the Chief Commissioner's decision to transfer him, were grounds which clearly indicate Mr Mottau had condoned the conduct, had made an election or is estopped by his conduct and has sat on his hands.[1]

52 Counsel repeated submissions about Mr Mottau's delay in making the complaint and expanded on the contention the complaint had been made for a collateral purpose in that Mr Mottau was making the complaint to circumvent other rights to appeal and to create his own exemption from the OSTT requirements.

53 The final submissions that the complaint should be struck out as an abuse of process, in summary were that:

•

the processes of the Tribunal ought to be reserved for those who deserve their access, being those who have sought to mitigate their losses and taken reasonable action to look after their own interests

•

the complainant has rights of appeal against any promotions or transfers where he has made application, and has better claims based on merit or seniority and unless and until he exercise such rights, the Tribunal ought not to deal with his "transfer" complaint.

•

the complainant having accepted the removal and the transfer decision ought to be held to have elected not to challenge them, and/or to have waived his right to do so, and thus he now ought to be estopped from acting inconsistently with his previous actions.

•

given the complainant's acceptance of the transfer decision, it can only be concluded that the proceeding is being prosecuted for a collateral purpose, namely to have the police force change the scope of the OSTT requirements within the operational arm of the Force

•

there has been delay in the lodging of the complaint

•

the public interest cuts both ways. Force members have obligations, just as Force Command. The regulatory structure of the workplace within the Victoria Police includes, but is wider than, the Act. The public interest in redress for the Complainant cannot be separated from those other public interests. Those interests include proper use of other mechanisms, and holding people to their choices. When those factors are considered, there is no public interest in this matter going forward. These are powerful discretionary reasons, alone or in combination with the matters raised above, why this proceeding ought be characterized as an abuse of process.

54 The complainant in written submissions responded to these matters. Referring to them as the alternate remedies argument, it was submitted :

.... The Respondent contends that the Complainant is obliged by an implied term of trust and confidence in his contract of employment to utilise mechanisms established in his employment to resolve grievances. The Respondent does not cite any authority in support of this broad proposition. The Complainant submits that there is no foundation for the contention that an implied contractual term requires an employee to follow all existing internal grievance mechanisms in the event that they allege they have been discriminated against. In any event, the implication of trust and confidence term has been doubted in Australian law. See Heptonstall v Gaskin & Ors [2005] NSWSC 30. An uncertain implied contractual term cannot found a proper basis to strike out the complaint. See Hecimovic v Victoria Police [2005] VCAT 870.

At par 29 of the Respondent's submissions, the Respondent contends that the Complainant had alternative remedies available pursuant to :

(a)

the Respondent's internal equal opportunity grievance mechanisms (see also Respondent's Submission at pars 20 to 32);

(b)

clause 17 of the Victoria Police Certified Agreement 1998 (Respondent's Materials: Attachment G); (see also Respondent's Submission at par 21); and

(c)

rights of appeal against transfer pursuant to the Police Regulation Act.

The Respondent contends that a failure to access these alternative remedies entitles the Tribunal to strike out the Complaint as an abuse of process. The Complainant submits that the availability of mechanisms such as that set out above does not constitute a proper basis to strike out the Complaint.

In respect of the Respondent's internal grievance mechanisms, by way of a complaint dated 17 May 2004, the Complainant did seek to resolve the matters through the Respondent's Equity and Diversity Unit ("the EDU"). However, the EDU declined to conciliate the complaint (See Mottau Statement: par 66, Exhibit "RM-14" & Exhibit "RM-15"). In these circumstances, it is unsustainable for the Respondent to contend that the Complainant's complaint before VCAT pursuant to the EO Act, should be struck out as an abuse of process because of the availability of an internal complaint procedure.

In respect of the dispute resolution process in clause 17 of the Victoria Police Certified Agreement 1998, that process does not confer any power on the Australian Industrial Relations Commission ("AIRC") to resolve disputes in respect of discrimination. This is because the AIRC is restricted in is dispute resolution powers to disputes over the application of the agreement. There is no clause in the certified agreement dealing with discrimination. See s 170LW Workplace Relations Act 1996. Consequently, the AIRC is not empowered by binding decision to resolve disputes in respect of discrimination. Furthermore, under clause 17, the AIRC is not even empowered to arbitrate unless both parties to the dispute agree. In these circumstances (contrary to par 33 of the Respondent's Submission) the AIRC could not be considered a more appropriate tribunal than VCAT for resolution of a discrimination complaint.

In respect of the rights of appeal under the Police Regulation Act 1958, the Respondent has not set out the basis upon which the complainant was entitled to appeal the transfer decision. The right to appeal a transfer is confined under s 8AA of the Police Regulation Act, to a member of the force who considers that he or she has a better claim to transfer. The Complainant has no right to appeal pursuant to this provision. Consequently, there is no basis to strike out the complaint based on any appeal right set out in the Police Regulation Act.

55 Mr Farouque responded briefly to Mr Murphy's extensive reply. So far as the submissions about matters such as "condonation", "estoppel" or "election" were concerned, he pointed out that all of the cases referred to were in very different factual contexts and that it would be dangerous to apply them where what is being considered in this application in the context of a statutory scheme. He referred to the Tribunal's decision in Hecimovic v Victoria Police [2005] VCAT 870 and the caution expressed in that case about equating a complaint of breach of the Act to an action for common law damages for work related injury and to the observation that statutory schemes are completely different.

56 Without going into detail about the complainant's specific objections about whether the avenues of redress were or were not available, the failure to avail oneself of any remedy available elsewhere is not a bar to the bringing of a complaint of discrimination. Such a failure of itself would not be sufficient reason to strike out a complaint of discrimination. There are many complaints of discrimination brought, where a complainant might also have or have had rights of redress elsewhere. Nor am I satisfied that failure to avail oneself of more than one avenue is sufficient grounds to find the complaint is without substance or an abuse of process.

57 What is clear from the respondent's material[2] is that it had understood his complaint and made it clear that the position was that he was able to remain in his current position or request a Regulation 21 transfer to a non-operational position. If it is that requirement which founds his complaint of indirect discrimination, it can hardly be said that his complaint about that has been delayed.

58 The complainant contends that there is no inordinate delay. He lodged his complaint in May 2004, at about the time he raised issues about whether he could be transferred. Further, though he is referring to matters in 2000 and 2001, both complaints will essentially be dealing with the same considerations.

59 The submissions that the Tribunal processes should be reserved for the deserving; that the Tribunal should not deal with his complaint because he can apply for positions and would have rights of appeal if not successful; that his conduct in accepting his removal or transfer creates an estoppel; and public interest considerations do not persuade me that the complaint should be struck out. Not do I accept there is any basis for saying this complaint is brought for a collateral purpose such that it should be struck out. If the complaint were to succeed, it may well be that some of these considerations, would be relevant to what orders the Tribunal might make.

60 In these circumstances I refuse the application to strike out the complaints.

[1] See Rankin v Marine Power International Pty Ltd [2001] VSC 150; Horsman v Commissioner of Main Roads [1999] FCA 1733

[2] see "RM15" letter from Victoria Police dated 9 June 2004 in reply to applicant's complaint made in May 2004.