Phillips v RSPCA Victoria (Human Rights) [2018] VCAT 2028

1. The claim is struck out as it is lacking in substance.
2. The Applicant may by 20 February 2019 apply to reinstate the claim.
3. Any such application must include a document setting out new information about facts or circumstances which he has not previously mentioned or relied upon in this proceeding.
4. The principal registrar is directed to fix a hearing of any such application, before me if available.

1. Michael Phillips applied to the Victorian Civil and Administrative Tribunal (VCAT) on 28 June 2017 under the Equal Opportunity Act 2010 (EO Act) claiming that the Respondent, the RSPCA Victoria (the RSPCA) had discriminated against him on the ground of his disability and had failed to make reasonable adjustments for him as a person with a disability. He said this had occurred while the RSPCA was providing a service.
2. Between 18 May 2017 and 2 June 2017, Mr Phillips' dogs were sheltered at the RSPCA's Burwood animal shelter after they had been seized by Whitehorse city Council (the Council). Mr Phillips said in his application that the RSPCA gave him little information about their welfare, causing him great distress and would not allow him to visit and did not explain to him how one of the dogs had been injured while there.
3. Mr Phillips' complaint against the Respondent was never formally particularised, despite the Tribunal's directions on 24 April 2018 for that to occur. On 3 July 2018, the Tribunal made orders setting out the answers Mr Phillips had given to questions at a directions hearing, by way of explaining his claim. That included the notes that Mr Phillips sought an explanation of why he had been treated as he was and an apology, from the CEO of the RSPCA.
4. The dogs were housed at the RSPCA because they had been seized by the Whitehorse City Council, apparently under the Domestic Animals Act 1994.
5. On 5 October 2018, the Respondent applied for the claim against it to be struck out as misconceived or lacking in substance.
6. I heard that application on 15 November 2018. At the hearing, the Respondent made submissions and relied on the affidavit of Nadia Peris, shelter supervisor at the Burwood campus of the RSPCA. Mr Phillips cross-examined Ms Peris. He also gave evidence and made submissions on his own behalf. At the end of the hearing, I reserved my decision.

THE PRINCIPLES FOR CONSIDERING SUMMARY DISMISSAL OR STRIKE OUT

1. Section 75(1) of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) 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.
2. In determining applications under section 75, VCAT has consistently followed principles set out in Rabel v State Electricity Commission[1]. The principles were usefully summarised in Norman v Australian Red Cross Society[2]. Relevantly, they include the principle that the Tribunal should be very cautious before summarily terminating a proceeding under section 75, as such action will have the effect of depriving a litigant of the opportunity to have his or her case decided in the ordinary course. I consider this is of special importance where the Applicant is self-represented.
3. The Tribunal should only proceed to strike out claims when satisfied that, because of one of the grounds in section 75, the case is obviously hopeless, obviously unsustainable in fact or law, on no reasonable view can justify relief or is bound 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.[3]
4. 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.[4]
5. A claim will be 'lacking in substance' for the purposes of section 75 if it only hints at some substance. In Assal v Department of Health, Housing and Community Services[5], Sir Ronald Wilson, determining a matter summarily in the Human Rights and Equal Opportunity Commission of Australia, made the following observations about the expression 'lacking in substance':

A claim which presents no more than a remote possibility of merit or which does no more than hint at a just claim would ordinarily, I think, be found to be lacking in substance.

1. Further, in that same proceeding Sir Ronald Wilson said:

It may sometimes be sufficient, once the complainant has had every opportunity to identify the subject matter of the complaint and produce all available evidence in support, simply to ask the question whether there is anything of substance which requires an answer from the respondent.

1. This case is not like some at VCAT, in which a Respondent makes an early application for the claim to be summarily dismissed or struck out as soon as a self-represented applicant files a poorly-described or sketchy claim. In this matter, Mr Phillips has had ample opportunity to explain his claim.
2. Even so, it is for the Respondent to show that the Tribunal should exercise its discretion to dismiss or strike out the proceeding summarily without further hearing. In considering the Respondent's application, I should take the Applicant's case at its highest. Since the Applicant is self-represented, I should ensure that all possible arguments that could be put on his behalf are considered, even if he did not raise those arguments.
3. On the other hand, an applicant must still articulate their case in a way that can be understood[6]. The Tribunal asks applicants to provide particulars of claim because procedural fairness requires that the Respondent be told the case they will have to meet at a hearing. Section 75 is not used to strike out the parties' documents using overly technical or mechanical rules.
4. For that reason, I have tried to understand how Mr Phillips considers his complaint is covered by the EO Act. If the EO Act does not apply to Mr Phillips claim, then the claim must be dismissed or struck out as misconceived or an abuse of process. VCAT only has power to deal with claims covered by the VCAT Act or enabling legislation such as the EO Act.[7]
5. If the claim is dismissed or struck out for lack of substance, it may be that Mr Phillips has not given sufficient information about his claim for VCAT or the Respondent to understand it. In that case, it would be preferable, as the Respondent suggested, to strike out the claim rather than dismiss it, as Mr Phillips may still be able to provide further information. Accordingly, and even though the Tribunal has several times questioned Mr Phillips about his complaint against the Respondent and received no more information than is set out in these reasons for decision, he will have an opportunity to do so.

WHETHER THE EQUAL OPPORTUNITY ACT 2010 APPLIES TO THE CLAIM

1. At a directions hearing on 3 July 2018, I made the following notes of Mr Phillips answers to questions and directed that these would form part of his particulars of claim. Ms Phillips has not objected to that approach. At that directions hearing he said:

1. he has a psychiatric disability; 2. the Respondent discriminated against him both directly and indirectly on the grounds of his disability in the area of provisions of goods and services;

1. the discrimination occurred in relation to services the Respondent provided when it cared for his dogs from 18 May 2017 to 2 June 2017;

1. the Respondent did not tell the Applicant what happened while it cared for his dogs; 2. the Respondent did not allow the Applicant to visit his dogs; 3. the Respondent banned the Applicant from visiting its premises; 4. the Respondent did not explain why it had banned the Applicant from visiting its premises; 5. the Respondent's employees spoke unfavourably to the Applicant, for example when he asked for the dogs' leads and collars to be returned; 6. these matters and those set out in the Applicant's email of 11 May 2018 exacerbated the symptoms of the Applicant's psychiatric disability.
2. Mr Phillips email of 11 May 2018 also mentioned that his dog 'Goethe was damaged, having a side wound' and that 'RSPCA moves Goethe and Rishi to another campus giving no reason for doing so'.
3. The EO Act section 44 provides:

Discrimination in the provision of goods and services

(1) A person must not discriminate against another person -

(a) by refusing to provide goods or services to the other person; or

(b) in the terms on which goods or services are provided to the other person; or

(c) by subjecting the other person to any other detriment in connection with the provision of goods or services to him or her.

(2) Subsection (1) applies whether or not the goods or services are provided for payment.

1. Section 6 of the EO Act lists the attributes, including disability, which are protected by the EO Act. Discrimination is defined in section 7, which provides that prohibited discrimination on the basis of an attribute includes direct or indirect discrimination and breach of specific sections such as section 45.
2. Section 8 says that direct discrimination occurs when someone treats a person with an attribute unfavourably because of that attribute.
3. Section 9 says that indirect discrimination occurs when a person imposes a requirement condition or practice which is not reasonable, and which has the effect of disadvantaging a person with an attribute.
4. Section 45 requires a service provider to make reasonable adjustments if a person with a disability requires them so as to be able to access or participate in the service.
5. The Tribunal's task then is to decide whether anything Mr Phillips has alleged in his particulars of claim or elsewhere in his documents in this proceeding could, if proved, amount to direct or indirect discrimination against him.

1. The RSPCA submitted that Mr Phillips had had every opportunity to identify the subject matter of his complaint and that as the complaint is currently articulated there was nothing of substance requiring an answer from the RSPCA.
2. In support of that submission the RSPCA raised three issues. First, they said that they were not providing a service to Mr Phillips by looking after the dogs. Rather, they said they were providing a service to the Council, under a contract.
3. Secondly, the RSPCA said that nothing in Mr Phillips allegations amounted to an allegation of direct discrimination. For direct discrimination to occur in these circumstances, there would have to be a causal connection between Mr Phillips' disability and his complaint about how the RSPCA treated him. The RSPCA submitted Mr Phillips had not alleged that they treated him unfavourably because of his disability.
4. Thirdly, the RSPCA said Mr Phillips had not alleged any of the factors which might amount to indirect discrimination - that is he had not mentioned a condition imposed on him, or how any condition disadvantaged a person with a disability or whether it was a reasonable condition.
5. As to the first point, that the RSPCA was providing a service to Whitehorse City Council and not to Mr Phillips, I accepted the evidence about this, set out in Ms Peris' affidavit[8], which was that there was a formal agreement between the RSPCA and the Council under which the RSPCA cares for animals impounded by the Council.
6. However, the fact that the Respondent was providing services to the Council, rather than to Mr Phillips, is not sufficient to indicate that the RSPCA could not have discriminated against Mr Phillips in the provision of services. Section 44(1)(c) also allows that prohibited discrimination might occur 'in connection with' the provision of services.
7. As to the second point, that Mr Phillips had not alleged direct discrimination, Mr Phillips accepted at the hearing that it was not the RSPCA which deprived him of his dogs, which he says are his assistance animals. I note that the dogs are very important to Mr Phillips sense of well-being. However, they were impounded by the Council, so that was not the alleged direct discrimination.
8. Mr Phillips allegations were about how the RSPCA treated him when he sought information about his dogs.
9. Ms Peris gave evidence that on the day the dogs were impounded and brought to the RSPCA, she was forwarded an email which had come to the RSPCA from the Buck Cerridwyn at the Council. Amongst other things, the email said, 'We are yet to determine if there are any visitation rights but until we make such a decision, please refer any attempts to visit to council'. Ms Peris explained that this was consistent with the agreement between the RSPCA and the Council. She said that although she did not refer to the agreement at the time, she had always understood that to be the case.[9]
10. Consequently, she said, she answered all Mr Phillips' queries about the dogs by directing him to make any enquires about them directly to the Council and instructed other staff to do the same.[10]
11. Mr Phillips, in his evidence at the hearing, did not accept that he had ever been directed to contact the Council with his queries. Taking his evidence at its highest and assuming that he was not given that information, his allegation still could not amount to direct discrimination. If proved, it would amount to poor communication from the RSPCA, but not to treating him unfavourably because of his disability.
12. Even supposing Mr Phillips could prove the RSPCA treated him badly by not giving him information, or in the way they spoke to him on the phone, that would not amount to discrimination based on his disability. Mr Phillips did not allege any fact which might indicate that there was any causal nexus between any unfavourable treatment from the RSPCA and his disability.
13. Accepting that Mr Phillips was distressed and bereft without the dogs who are his companions, he did not allege that this was the responsibility of the RSPCA.
14. I turn now to the Respondent's third point, that Mr Phillips has not said how the Respondent may have discriminated against him indirectly. An allegation of indirect discrimination needs three elements - that the Respondent imposed a condition on the Applicant; that the condition disadvantages persons with a disability; and that the condition is unreasonable.
15. Mr Phillips did not describe the situation in this way. Assuming though that he considered the direction to take his queries to the Council was the condition imposed on him, his claim did not reveal anything which indicated he was (or people like him were) prevented by his kind of disability from contacting the Council. Nor did he claim it was an unreasonable condition. As the Respondent pointed out, they could if necessary rely on their agreement with the Council and their instructions from the Council in their defence.
16. In any case, at the end of the hearing, Phillips accepted that he was not claiming the Respondent had discriminated against him indirectly. He claimed direct discrimination.
17. However, he did not allege any unfavourable treatment was because of his disability.
18. Although he did not articulate it, it is possible that Mr Phillips' real complaint was that the Respondent did not adjust the way they dealt with him to accommodate his disability. In some circumstances that could amount to a breach of section 45 of the EO Act. I note that Mr Phillips was not the service recipient in this case. Further, he did not suggest that there was any particular thing the RSPCA could reasonably have adjusted to account for his disability. Nor did he allege that he had informed the RSPCA of his disability, which would be essential to proving that they had failed to make adjustments for it. The remote possibility of a meritorious claim here is insubstantial.

1. In all these circumstances, especially considering that Mr Phillips had several opportunities to say what his claim was about, I consider that his claim is lacking in substance. Perhaps there are hints that he might have mentioned facts or circumstances which put his claim about the Respondent's conduct within the description of the behaviour prohibited by the EO Act.
2. However, as it is currently put, taking into account everything in Mr Phillips documents and everything he said at the hearing, I consider that if everything he alleges was proved it would turn out to be, as the Respondent's counsel suggested, a complaint about customer service, not a complaint about receiving unfavourable treatment because of a disability or about a service delivered in a way which was inaccessible to a person with a disability.
3. As the Respondent's counsel suggested, because the main problem with the claim is its lack of substance, Mr Phillips should not even now be shut out from giving his claim substance. He could do that by mentioning any facts or circumstances he has so far omitted. Therefore, I will strike out the claim, with a right to apply for reinstatement in the next two months, but only on the basis that the Applicant describes further facts or circumstances which would bring the conduct about which he complains within the ambit of the EO Act.

[1] (1998) 1 VR 102.

[2] [1998] VCAT 10.

[3] Towie v Victoria (2008) 19VR640; [2008] VSC 177 at paragraph 29.

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

[5] (1992) EOC 92-409; [1990] HREOCA 8 (Sir Ronald Wilson).

[6] West Homes (Australia) Pty Ltd v Crebar Pty Ltd [2001] VCAT 46 at paragraph 11.

[7] Wizardry Kennels v Semtech Animal Breeding services [2006] VCAT 2368 at paragraph 11.

[8] Affidavit of Nadia Peris dated 5 October 2018 at paragraphs 7 to 18.

[9] Affidavit of Nadia Peris dated 5 October 2018 at paragraphs 14 and 22.

[10] Affidavit of Nadia Peris dated 5 October 2018 at paragraph 25.