The respondents, whom I call Southern Health and Ms Batten, have applied under s.75 of the Victorian Civil and Administrative Tribunal Act which I call the VCAT Act to strike out or dismiss Mr Peters' claims in certain paragraphs of the particulars of complaint which I call the listed paragraphs. Those paragraphs are paragraphs 31 to 38, 39 (except for the first sub-paragraph) and the first sub-paragraph of paragraph 40.

The respondents say that these claims are an abuse of process because they attempt to revisit an earlier withdrawn complaint or because there has been excessive and inexcusable delay between the making of the claims and the alleged events to which they relate. In addition the respondents say that the claim of victimisation in paragraph 34 of the particulars of complaint should be struck out or dismissed as lacking in substance or misconceived.

Under s.75 of the VCAT Act, the Tribunal may strike out or dismiss a proceeding or any part of a proceeding if, among other things, it lacks substance, is misconceived or is an abuse of process. In a number of cases this Tribunal has followed the principles set out by the Victorian Court of Appeal in Rabel v. State Electricity Commission (1998) 1 VR 102. Those principles, so far as relevant are these. The Tribunal should be cautious before summarily terminating a claim under this section and so depriving the litigant of the chance to have the case heard in the ordinary course. It should only do so where a respondent satisfies it that the case is manifestly hopeless, undoubtedly untenable or so clearly an abuse of process that it should not go to a hearing.

I have before me in this case the complaint, the particulars of complaint and oral and written submissions from the parties.

The respondents first say that the claims in the listed paragraphs are an abuse of process because in substance they are the same claims as the claims made in proceeding A238 of 1998. That proceeding was constituted by a complaint lodged with the Equal Opportunity Commission which in these reasons I call the Commission on 22 July 1998.

The Commission declined that complaint as lacking in substance. The complainant, as was his right, required the Commission to refer the complaint to VCAT. The Commission did so by letter dated 19 October 1998 received by VCAT on 20 October 1998.

The complaint was listed for a directions hearing to be held on 21 December 1998. On that date however, and before the directions hearing was held, Mr Peters withdrew that complaint. The respondents to that complaint were Dandenong Hospital and Julie Vine, Mr Peters' manager when, between 1994 and March 1996 he worked as a psychiatric nurse at Dandenong Hospital. I call this complaint a 1998 complaint.

The 1998 complaint claims sex and a disability or impairment discrimination and authorising or assisting that discrimination. In summary it's claims are these: that the respondents discriminated against Mr Peters on the basis of his sex or impairment(the impairment being what he describes as a psychotic episode or illness or as glandular fever) or authorised or assisted such discrimination -

(a) Ms Vine falsely alleging in a telephone discussion between her and Mr Caulfield, Human Resources Manager of Mildura Base Hospital that Mr Peters had been over-familiar with and pressured female staff at Dandenong Hospital while he worked there between 1994 and 1996;

(b) by Ms Vine's during that discussion giving an assessment of Mr Peters' work performance and behaviour which failed to take into account Mr Peters' impairments which were impairments known to Ms Vines and also which failed to take into account the manifestations of those impairments;

(c) (c) by procuring Mr Peters' constructive dismissal from Mildura Base Hospital.

I have ready very carefully the listed paragraphs in the particulars of complaint. In my view they make in substance the same claims as were made in the complaint which Mr Peters has withdrawn.

The current complaint which is the subject of this proceeding and which I call in these reasons the current complaint was lodged with the Commission on 2 August 2001. The Commission declined that complaint under s.108(1)(a) of the Equal Opportunity Act. Mr Peters then required the Commission to refer the complaint to VCAT. The complaint was referred to VCAT, the letter of referral being dated 4 October 2001.

The reasons which Mr Peters gives for withdrawing the 1998 complaint are his negative experience when participating in the processes of the Commission, his uncertainty about whether he would succeed before the Tribunal and his fears of having costs awarded against him if he failed.

There are a number of differences between the current complaint and the 1998 complaint. The respondent body corporate is different. The respondent to the 1998 complaint is Dandenong Hospital. The respondent to the current complaint is Southern Health. However I note the Southern Health acknowledges that it is the successor of Dandenong Hospital in relation to this matter.

The individual respondents are different. In the 1998 complaint the respondent is Ms Vine. In the current complaint the respondent is Ms Batten. The grounds of complaint are different but overlap. Both complaints claim sex and impairment discrimination. The 1998 complaint also claims assisting or authorising discrimination. The current complaint also claims victimisation.

The core claims in both complaints are different. The 1998 complaint basically relates to the alleged circumstances leading to Mr Peters leaving the Mildura Base Hospital. The current complaint relates to the refusal to offer to Mr Peters a position at Dandenong Hospital with its Westernport Drug and Alcohol service, Community Residential Drug Withdrawal Unit.

In my view the current complaint read as a whole cannot be said to be as a whole the same in substance as the 1998 complaint. Mr Peters would not therefore have required the leave of this Tribunal under s.74(2)(d) of the VCAT Act to require the Commission to refer the current complaint to VCAT. That provision prevents an applicant who has withdrawn a proceeding from requiring the referral of a further proceeding in relation to "the same facts and circumstances".

However, the current complaint and the listed paragraphs of the particulars of complaint raise the same issues as the 1998 complaint in relation to Dandenong Hospital and Ms Vine and concerning the telephone discussion between Ms Vine and Mr Caulfield in November 1997 and also in relation to the circumstances under which Mr Peters left Mildura Base Hospital.

In my view it would be an abuse of process to revisit these issues now in circumstances where the complaint about these was withdrawn more than three years ago and there is no reason why it might be in the interest of justice to revisit these issues. For example, Mr Peters does not say that he failed to understand the procedures of the Tribunal or the Commission or that he has now discovered some critical matter of which he was not aware when he made the 1998 complaint. Having reached this conclusion, I do not need to deal with the respondent's alternative submission concerning delay.

I now deal with the respondent's submission that the claim of victimisation in paragraph 34 of the particulars of complaint should be struck out or dismissed because the claim is not properly particularised and is therefore without substance or misconceived. I agree with the respondents that the claim is not properly particularised. However the cure for this is directions for further particulars, not the striking out of the claim.

On a reading of the current complaint as a whole, Mr Peters is claiming that on 26 April 2001 he wrote to Mr Stanaway of Dandenong Hospital and to Ms Vine who was one of the respondents to the 1998 complaint. That letter is an attachment to the current complaint. That letter mentions the 1998 complaint and its claims and alleges ongoing discrimination.

Mr Peters then is saying that on 2 May 2001 Mr Stanaway replied to this letter denying discrimination. He then says that on 3 May 2001 he was interviewed for a position at the Dandenong Hospital's Drug Withdrawal Unit for which he had applied. He says that although the position was then offered to him after interview, he was later notified by letter dated 10 May 2001 that final approval of his appointment had not been given by the Human Resources Department. A copy of this letter is attached to his complaint.

There is also attached to his complaint a letter from Dandenong Hospital's site manager John Douglas dated 31 May 2001. Among other things, that letter states that although Mr Peters qualifications and experience suggest that he would be able to discharge the functions of that position "having regard to the culture of the area in which you would be working" Mr Peters was not the best candidate.

I note that the respondents deny victimisation and that there will be clearly disputes about the interpretation of this letter as a whole and this statement in particular. However, Mr Peters is saying that, taking into account the statement in this letter and the closeness in time between this letter and the refusal of his job application, it would be open for the Tribunal to infer that the contents of his letter of 26 April and what it revealed about the 1998 complaint were substantial reasons for the refusal to appoint him to that position.

At this stage and without better particulars, I am not prepared to dismiss this claim as manifestly hopeless. It needs to be particularised. I see no reason why Mr Peters cannot, in his particulars of complaint, give particulars of the reason for which, in his view, the respondents treated him as he alleges they did. This is part of his particularisation of his claim of discrimination. What he cannot do is to revisit the 1998 claims and make fresh claims of discrimination based on the 1998 complaint.

Finally, I note that Mr Peters claims that the 1998 complaint and this current complaint form a pattern of ongoing discrimination. In my view the alleged incidents are far too few and too distantly separated in time to be capable of forming such a pattern. That concludes my reasons for decision.