Plaintiff v Defendant

Supreme Court of Victoria|2014-11-21|Before: BELL J

ADMINISTRATIVE LAW - Victorian Civil and Administrative Tribunal - appeal - dismissal of application brought against public authority alleging unlawful discrimination and breach of human rights - human rights claims dismissed without independent consideration after dismissal of discrimination claims - whether error of law - whether failure to exercise jurisdiction with respect to alleged breach of human rights - 'unlawful', 'act or decision', 'relief or remedy', 'may seek' - Equal Opportunity Act 1995 (Vic), Equal Opportunity Act 2010 (Vic), Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 38(1) and 39(1).

For the Victoria Equal Opportunity and Human Rights Commission (intervening)

Victorian Equal Opportunity and Human Rights Commission

1 Louise Goode makes application for an extension of time in which to apply for leave to appeal from an order of the Victorian Civil and Administrative Tribunal made on 19 December 2013,[1] for that leave to appeal and for orders in the appeal quashing the order and other relief. Common Equity Housing Ltd opposes the grant of the extension and leave and the making of orders in any appeal. The applications and the appeal have been heard and will hereby be determined together.

2 The order under appeal is an order dismissing Ms Goode's application against Common Equity Housing under the Equal Opportunity Act 1995 (Vic) and the Equal Opportunity Act 2010 (Vic) in respect of alleged prohibited discrimination. In addition to prohibited discrimination, Ms Goode alleged in the application that, as a public authority, the company acted in breach of her human rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic).

3 In response to the application, Common Equity Housing made application under s 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) for an order striking out or dismissing the proceeding. Rather than determining the issues raised in a summary manner, the tribunal quite properly made orders for the efficient and convenient disposition of the proceeding on a final basis. After hearing evidence and receiving submissions, the tribunal found that Common Equity Housing had not committed any acts of prohibited discrimination and made the order dismissing Ms Goode's application. The tribunal also decided that, because it was not satisfied that Common Equity Housing had committed any acts of prohibited discrimination, it did not have jurisdiction to consider the human rights violations alleged by Ms Goode.

4 The appeal to this court has been brought pursuant to s 148(1) of the Victorian Civil and Administrative Tribunal Act. The court has a limited function in such appeals and Ms Goode must establish that the tribunal committed an error of law in relation to the matters that it decided. The court does not have jurisdiction to reconsider those matters on the merits.

5 As the grounds of the appeal raise issues concerning the interpretation and application of the Charter, Ms Goode gave notice under s 35(1) to the Victorian Human Rights and Equal Opportunity Commission and the Attorney-General. The issues raised with respect to the Charter concern the obligation of the tribunal under s 39(1) to determine whether relief or remedy should be granted on human rights grounds where a proceeding based on non-Charter unlawfulness is dismissed. Only the Commission has elected to participate in the proceeding.

6 Ms Goode has had some access to legal advice in relation to the hearing before the tribunal and also the appeal in this court. But she is not a lawyer and was self-represented at the hearing before the court. Consistently with my judgment in Tomasevic v Travaglini,[2] I explained the procedure that would be followed in the hearing in this court and the substantive issues of fact and law that appeared to be raised.

7 After the hearing, Ms Goode sought leave to present further evidence being that on 5 November 2008 she said that she was signing a document under duress. Common Equity Housing opposed the grant of leave. I refuse to grant leave because the evidence is evidence of facts that are not relevant to the function of the court in an appeal of this nature.

Application for extension of time and leave to appeal

8 Common Equity Housing opposes the grant of an extension of time in which to issue an application for leave to appeal. It contended that the delay has not been adequately explained and the merits of the appeal did not warrant the grant of any extension. It also contended that an extension should not be granted because, in the circumstances, the court would dismiss the application for leave to appeal or the appeal even if an error of law was established.

9 Under s 148(2)(a) of the Victorian Civil and Administrative Tribunal Act, Ms Goode should have made application for leave to appeal no later than 28 days after the day of the order of the tribunal. Accordingly, Ms Goode should have commenced the application for leave to appeal in the court by 3 February 2014 or thereabouts. She actually commenced her application on 20 March 2014. I note that, in applications to which the Supreme Court (General Civil Procedure) Rules 2005 (Vic) apply, r 3.04(1) operates to exclude the period from 24 December to 9 January in the reckoning of time. Whether or not this rule applies, I do not think the delay in the present case has been very great.

10 Having regard to the vacation period and Ms Goode's poor health and lack of legal representation, I think the delay that has occurred has been adequately explained. She did not receive the written reasons for decision from the tribunal until 30 December 2013 (by email). Ms Goode did not sit on her hands. She indicated her intention to seek leave to appeal at an early stage and sought information from the court about how to make the application. She also sought pro bono legal advice. Much of the delay has been due to her taking time properly to prepare the necessary documentation. I take into account the prejudice that Common Equity Housing will suffer in having to defend the application. However, in all of the circumstances, I think an extension of time should be granted.

11 Applying Secretary to the Department of Premier and Cabinet v Hulls,[3] I think leave to appeal should be granted. As will be seen, I think Ms Goode has established that the tribunal committed an error of law and the court should grant relief in respect of that error. The error established is that the tribunal failed to exercise its responsibility to determine whether Ms Goode should be granted relief or remedy upon the ground that her human rights under the Charter had allegedly been violated. Refusing relief would impose substantial injustice upon Ms Goode because it would effectively prevent her from obtaining access to the court in respect of the tribunal's failure to vindicate her human rights.

12 As explained in the reasons for decision of the tribunal, Ms Goode was a tenant of a property owned by Common Equity Housing, a not-for-profit registered housing association that provided affordable rental properties to low income earners in Victoria. Since 2008, her tenancy has been directly with Common Equity Housing as the landlord. Previously, her tenancy had been with Access CERC as landlord. Access CERC is a tenant-managed common equity rental cooperative, one of many managing properties owned by Common Equity Housing.

13 Ms Goode's claim was that Common Equity Housing discriminated against her in the manner specified below. Under the Equal Opportunity Act 1995 and the Equal Opportunity Act 2010, she sought the relief or remedy that Common Equity Housing be ordered to apologise, pay compensation and transfer ownership of her rental property to her absolutely.

14 As described in the tribunal's reasons for decision, Ms Goode's discrimination complaints were:

Ms Goode made the following submissions, in writing, and orally by her advocate on her behalf, stating that direct discrimination occurred under both the Equal Opportunity Act (Vic) 1995 (pre August 2011) and the Equal Opportunity Act (Vic) 2010 against Ms Goode on the grounds of her disability, being Post Traumatic Stress Disorder (PTSD), in the following respects:

(a) that she was forced to give up her voluntary employment as a maintenance director for Access CERC in June 2006;

(b) that she was forced to resign from Access CERC and become a direct tenant of VicWide (the name of CEHL's tenancy arm);

(c) that CEHL brought an application against her for allegedly obstructing the building of a boundary fence, or wall, by her neighbour;

(d) that CEHL brought an application against her in order to conduct an inspection of her property;

(e) that CEHL sought to increase her rent because she was unable to provide updated information about her income due to her PTSD;

(f) that CEHL has persistently harassed her with administrative impositions, including issues relating to rent, Centrelink, and the condition of her home.

Ms Goode submitted that there had also been direct discrimination on the basis of age, in that only persons of a certain age were eligible to be tenants of VicWide.
Ms Goode also argued that there had been indirect discrimination, in that requirements were imposed upon her, such as the requirement to allow an inspection of her home and the requirement to provide income information, that she could not comply with because of her disability and that had the effect of disadvantaging her.

15 In addition to seeking relief or remedy from Common Equity Housing on grounds of unlawful discrimination, Ms Goode also sought relief or remedy from that company on the ground that, as a public authority, it had violated her human rights under the Charter. As also described in the reasons for decision of the tribunal, the particulars of Ms Goode's human rights complaints were as follows:

Ms Goode's advocate also submitted that CEHL, in exercising its function as a public authority, breached the Charter, and in particular acted in a way that was incompatible with the following rights:

(a) Taking part in public life (s 18 of the Charter) in that Ms Goode was forced to step down from her role as maintenance officer;

(b) Privacy and reputation (s 13 of the Charter) in that employees of CEHL, according to Ms Goode, were heard to refer to Ms Goode as 'crazy', 'a problem child', 'a trouble maker who hated men' and in other negative ways;

(c) Protection for torture and cruel, inhuman or degrading treatment (s 9 of the Charter) in that due to Ms Goode's experiences and background as a person who was institutionalised as a child, and who suffered PTSD, the formal administrative requirements imposed upon her amounted to torture;

(d) Right to peaceful assembly and freedom of association (s 16 of the Charter) in that she was forced, or coerced, to transfer from Access CERC to VicWide;

(e) Freedom of thought, conscience, religion and belief (s 14 of the Charter) in that she was disadvantaged because her capacity as 'an empowered citizen and independent woman ... was distasteful to the executives of CEHL and contrary to their expectations of someone in her position' (page 6 Submissions dated 17 October 2013);

(f) Freedom of expression ( s 15 of the Charter) in that Ms Goode's right to express herself was curtailed in meetings, for example in meetings which occurred in and around 2005 to 2008 when Ms Goode was attempting to express her views about the head lease and other matters relating to the co-operative;

(g) Property rights (s 20 of the Charter) in that attempts were made to evict her from her home;

(h) Recognition and equality before the law (s 8 of the Charter) in that when Ms Goode sought protection under stalking laws at the Magistrates' Court she was left more vulnerable because 'the CEHL organisation were given administrative immunity' (page 8 Submissions dated 17 October 2013).

16 The tribunal addressed each of Ms Goode's discrimination complaints. After rejecting these complaints, it ordered that her application be dismissed. The tribunal did not address her human rights complaints. It determined that it did not have jurisdiction to do so because the discrimination complaints had not been established.

17 In written submissions to the court which were relied upon at the hearing, Ms Goode contended that the decision of the tribunal raised the following questions of law:

The member erred when she ruled that an examination of alleged Breaches of the Victorian Charter of Human Rights and Responsibilities was beyond her jurisdiction.
It seems like the measure of truth used was not the 'balance of probabilities' according to civil process but some version of 'beyond reasonable doubt'.
There was a lack of procedural fairness: Ms Goode's right to speak and to have all the evidence before the Tribunal was abridged.
Ms Goode's procedural right to have all her evidence considered may not have been provided.
Lack of judicial fairness in respect to medical evidence: Dr Rigby's medical reports provided to CEHL and VCAT were acknowledged but not given sufficient weight. The conscious serious damage by CEHL to Ms Goode that was claimed by the medical report was inconsistent with the finding that CEHL wanted only good for her.
We contend that the breaches of fairness above and the conduct of the hearing demonstrate a bias toward the establishment, and the presumption that a community organisation must have the best interests of its clients at heart.

18 In those submissions she put forward the following grounds of appeal:

Our advice is that 'while there needs to be a question of the lawfulness of some action before the tribunal and then the Charter can be considered - the 'question' need not be actually won in order for the Charter issue to be considered.
The preponderance of evidence presented to the member indicated a link between the bodies. In #24 the Member found 'CEHL was not responsible for the decision making'. An error in the proceedings was the mistaken determination that Access CERC and CEHL are, were, and function as, separate legal organisations in the 'balance of probabilities'.
When Ms Goode's explanation given from the desk in front of the Member about discrimination on the basis of 'Age' was cut short by the member she was unable to present the historical context of 'Age' being the 'criterion' that Mr McInerney was referring to when Mr McInerney said at a formal meeting that 'Louise fits the criteria for VicWide'. #16 Gaby Jung witness letter.
An expert witness as Dr Rigby is must be accepted unless there is contradictory expert advice.

Natural justice must be without bias or seeming bias.

Even though requested to do so, the transfer of material in A60/2012 may not have happened as Snr member Nihill referred to A65/2013 as a 'new case'.

Ms Goode developed these grounds in further written submissions to which she spoke at the hearing.

Ground 1: failure of tribunal to determine human rights grounds

20 As we have seen, Ms Goode's application to the tribunal alleged that Common Equity Housing had engaged in unlawful discrimination upon the ground of her disability (Post Traumatic Stress Disorder) contrary to the provisions of the Equal Opportunity Act 1995 and the Equal Opportunity Act 2010. Ms Goode also alleged that, as a public authority under the Charter, Common Equity Housing had breached her human rights and, in particular, had acted in a way that was incompatible with specified human rights. I set out above the rights relied upon on and the breaches alleged, as identified by the tribunal.

21 It is apparent from the reasons for decisions of the tribunal that it appreciated that, in relying upon these rights and alleging these breaches, Ms Goode was invoking the provisions of ss 38 and 39 of the Charter.

22 Section 38 relevantly provides:

(1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

(2) Subsection (1) does not apply if, as a result of a statutory provision or a provision made by or under an Act of the Commonwealth or otherwise under law, the public authority could not reasonably have acted differently or made a different decision.

Example

Where the public authority is acting to give effect to a statutory provision that is incompatible with a human right.

23 It appears from the tribunal's reasons for decision that Ms Goode was relying upon that part of s 38(1) which makes it 'unlawful for a public authority to act in a way that is incompatible with a human right' under the Charter. Her contention was that various actions of Common Equity Housing described were incompatible with human rights and therefore unlawful under s 38(1). Upon that basis, in the discrimination proceeding she sought relief or remedy under s 39(1).

24 Section 39(1) provides:

(1) If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.

(2) This section does not affect any right that a person has, otherwise than because of this Charter, to seek any relief or remedy in respect of an act or decision of a public authority, including a right -

(a) to seek judicial review under the Administrative Law Act 1978 or under Order 56 of Chapter I of the Rules of the Supreme Court; and

(b) to seek a declaration of unlawfulness and associated relief including an injunction, a stay of proceedings or exclusion of evidence.

(3) A person is not entitled to be awarded any damages because of a breach of this Charter.

(4) Nothing in this section affects any right a person may have to damages apart from the operation of this section.

25 Section 39(1) is an enabling provision. The additional jurisdiction that it confers on courts and tribunals to grant relief or remedy is an important means of giving effect to and vindicating human rights. In cases where the lawfulness of an act or decision of a public authority may be challenged on an independent ground of unlawfulness, it allows a person to seek the available relief or remedy on a ground of unlawfulness because of the Charter. In that regard, s 39 must be read with s 38.

26 In the present case, Ms Goode was entitled independently to challenge the relevant acts of Common Equity Housing under the Equal Opportunity Act 1995 and the Equal Opportunity Act 2010 as constituting prohibited discrimination, and she did so challenge those acts. For the purposes of s 39(1), it is perfectly apt to describe as 'unlawful' an act or decision that is prohibited or proscribed by, or contrary to, a statutory provision or the common law or that is inconsistent with a norm or standard prescribed in such a provision or law. Here the relevant acts were prohibited by statute and thus 'unlawful' for the purposes of s 39(1). Thus, this was a case in which the jurisdiction in s 39(1) was engaged.

27 The tribunal decided otherwise. Its conclusion that it did not have jurisdiction under s 39(1) was expressed as follows:

In Caripis v Victoria Police[4] and Slattery v City of Manningham[5] the Tribunal interpreted the decision in Sudi as allowing that the Tribunal has jurisdiction to consider Charter unlawfulness when, and only when, the lawfulness of the decision itself is before the Tribunal.

As stated above, I am not satisfied, on the basis of the evidence before me, that there has been any breach by CEHL of the EO Act 1995 or the EO Act 2010. I am not satisfied that there has been any unlawfulness. In my view, it follows from an analysis of Sudi that to examine the role of CEHL as a public authority and review the decisions it may have made, in the absence of evidence that satisfies me that there have been acts of discrimination, is beyond the jurisdiction I have.

28 As can be seen, the tribunal was of the view that it did not have jurisdiction to determine whether to grant relief or remedy on the ground of Charter unlawfulness because, in the discrimination proceeding, it had determined that it was 'not satisfied that there has been any unlawfulness' on non-Charter grounds. The tribunal was apparently of the view that the lawfulness of the acts of Common Equity Housing ceased to be before the tribunal once the discrimination claim was rejected. Its reasoning appears to be that, for the jurisdiction under s 39(1) to be available in a proceeding based on the unlawfulness of an act or decision on non-Charter grounds, those grounds must be successfully established. This would mean that the tribunal's jurisdiction under s 39(1) would disappear if the claim based on those grounds were to be rejected.

29 As the Commission submitted, the jurisdiction conferred by s 39(1) is not so qualified. On grounds of Charter unlawfulness, it operates to enable a person to seek such relief or remedy as he or she 'may seek' on grounds of non-Charter unlawfulness in respect of the act or decision concerned. The relevant condition is that, in respect of the act or decision, the person is entitled to seek ('may seek') that relief or remedy on grounds of non-Charter unlawfulness, not that any such proceeding be determined and upheld.

30 At least initially, this condition was satisfied in the present case. Ms Goode was entitled under statute to seek relief or remedy in the tribunal from Common Equity Housing in respect of acts of alleged unlawful discrimination. The tribunal decided that it did not have jurisdiction under s 39(1) to grant such relief or remedy on grounds of Charter unlawfulness because the discrimination claim, when made, was rejected. In deciding that the jurisdiction did not exist in those circumstances, I think the tribunal erred in law. Where the tribunal has jurisdiction under s 39(1) because a person is entitled to seek relief or remedy in the tribunal on a ground of non-Charter unlawfulness, it does not lose the jurisdiction to grant relief or remedy on a ground of Charter unlawfulness because, where application on the non-Charter ground is actually made, it is not determined or rejected.

31 I think this conclusion is consistent with the approach adopted in this court to the application of s 39(1) in cases where an applicant has sought to rely, or relied, on Charter unlawfulness in a proceeding. I will begin with Sudi to which the tribunal referred. This was the decision of Warren CJ, Maxwell P and Weinberg JA in Director of Housing v Sudi.[6] It was unanimously decided in that case that the tribunal did not have jurisdiction to consider, and take into account, whether an application for possession under the Residential Tenancies Act 1997 (Vic) made by the Director of Housing (a public authority under the Charter) was compatible with, or failed to take proper account of, the human rights of tenants because such issues were collateral to the matters before the tribunal.

32 As submitted by the Commission in the present case, it was central to the reasoning of the Court of Appeal in Sudi that, in the application by the Director for possession of the subject premises, the tribunal did not have jurisdiction to determine a challenge to the lawfulness of the application on non-Charter grounds. Therefore the tenant was not entitled to seek relief or remedy in respect of the application on Charter grounds.

33 The importance of this consideration is evident in the judgment of the Chief Justice, who stated:

VCAT did not, apart from the Charter, have power to review the validity of the director's decisions on the ground of unlawfulness. Accordingly, s 39(1) does not operate to confer jurisdiction on VCAT to grant relief on 'a ground of unlawfulness arising because of this Charter'.[7]

Plainly enough, s 39(1) has an operation which is both conditional and supplementary.[8] The condition to be satisfied is that a person be able to seek, independently of the Charter, 'any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful'. If - but only if - that condition is satisfied, then s 39(1) enables that person to seek 'that relief or remedy' on a supplementary ground of unlawfulness, that is, unlawfulness arising because of the Charter.[9]

34 In the present case, the tribunal referred to these passages in the analysis leading up to the concluding paragraphs that I have already set out. The difficulty is that neither the actual decision nor the reasoning in Sudi supports the tribunal's conclusion. By contrast with Sudi, the case before the present tribunal was one in which Ms Goode, in respect of the relevant acts of Common Equity Housing, was entitled under statute to seek relief or remedy in the tribunal upon a non-Charter ground of unlawfulness (prohibited discrimination). The jurisdiction of the tribunal available to Ms Goode was quite different to the jurisdiction invoked by the Director in Sudi.

35 In my view, upon the basis of the decision of the Court of Appeal in Sudi, the tribunal should have decided that it had the jurisdiction under s 39(1) of the Charter to determine whether the relief or remedy sought by Ms Goode in her application based on unlawful discrimination should be granted on a ground of unlawfulness because of the Charter. I think that this is also apparent from the decision of Hollingworth J in Sabet v Medical Practitioners Board of Victoria,[10] my decision in Patrick's Case[11] and the decision of Kyrou J in R v Debono.[12]

36 In Sabet, Hollingworth J describes the operation of s 39(1) of the Charter as follows:

The Charter was not intended to create new causes of action against public authorities, additional to those already available outside the Charter[13] - which, in this case, are available to Dr Sabet under the [Administrative Law Act 1978 (Vic)]. Rather, s 39 of the Charter provides that if a person otherwise has a right to seek relief or remedy on the basis that a public authority's decision was unlawful, then the person may seek that same relief or remedy on the ground that the act or decision was unlawful because of the Charter.

As mentioned earlier, Dr Sabet seeks relief in the nature of certiorari and an injunction, on the ground of denial of natural justice. The effect of s 39 is that he may also seek that same relief on the ground that the decision was unlawful under the Charter (in this case, unlawful under s 38). It is not necessary that the grounds of review are the same under the Charter and the [Administrative Law Act], merely that the relief or remedy sought is the same.

The threshold question to be decided in every case under s 38 is whether the body is 'a public authority'. Here, there is no dispute that the board is 'a public authority' to which s 38 applies.[14]

It is to be noted that, applying this reasoning, her Honour went on to determine the applicant's claim for relief or remedy upon the grounds of unlawfulness because of the Charter even after having rejected his substantive application for relief or remedy on grounds of non-Charter unlawfulness.[15]

37 In my judgment in Patrick's Case,[16] I drew upon the judgment of Hollingworth J in Sabet and discussed the application of s 39(1) in cases where, like the present, a ground of Charter unlawfulness is relied upon in an application based upon a non-Charter ground of unlawfulness. In the passages to which the President referred in Sudi,[17] I explained the operation of s 39(1) in that kind of case in the following way:

To apply s 39(1) in this case, it is necessary to ask whether the appellant, in the appeal, 'may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful'. If the answer to that question is positive, then 'that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter'.

Section 39(1) does not create a new cause of action or other proceeding for obtaining a relief or remedy in respect of unlawfulness arising under the Charter.[18] It attaches unlawfulness arising under the Charter as a ground to existing causes of action or proceedings by which relief or remedy may be obtained in respect of the act or decision on a ground of unlawfulness arising otherwise than because of the Charter. It then operates to make that relief or remedy available in that cause of action or proceeding on the ground of unlawfulness arising under the Charter, whether or not that relief or remedy is granted on a ground of unlawfulness not arising in that way. The capacity of parties to rely on incompatibility with human rights in legal proceedings, the authority of courts and tribunals (having the jurisdiction) to grant relief or remedy where unlawfulness on that ground is established and the human rights protection of the community have been enhanced to that significant extent.[19]

Where Charter unlawfulness is established, the relief or remedy which could be sought on the [non-Charter ground] can be granted by the court on a ground of unlawfulness arising under the Charter, whether or not the unreasonableness ground is determined.[20]

38 In Debono,[21] Kyrou J drew upon Sabet and Patrick's Case. After setting out the above passage from the judgment of Hollingworth J in Sabet, his Honour stated:

In Patrick's case,[22] Bell J stated that, where relief can be sought independently of the Charter, the relief can be granted on the ground of unlawfulness under the Charter irrespective of whether relief is granted on the non-Charter grounds.[23] His Honour added that, where Charter unlawfulness is established, the relief that could be sought on non-Charter grounds can be granted on the ground of Charter unlawfulness, whether or not the non-Charter grounds are determined.[24]

Accordingly, it appears that the mere exercise of an available right to seek relief or remedy in respect of an act or decision of a public authority on a ground that is independent of the Charter is sufficient to satisfy the condition in s 39 of the Charter; that is, s 39 does not depend upon a successful exercise of that right based on the non-Charter ground. However, if a right to seek relief or remedy in respect of an act or decision of a public authority is not available independently of the Charter, no relief or remedy can be granted where the act or decision is unlawful under s 38(1) of the Charter.[25]

39 It follows that, in respect of an act or decision of a public authority, the tribunal has jurisdiction under s 39(1) of the Charter to grant such relief or remedy on a ground of Charter unlawfulness as may be sought in the tribunal on a ground of non-Charter unlawfulness. The tribunal does not lose that jurisdiction because, when application is actually made seeking relief or remedy on a ground of non-Charter unlawfulness, that ground is not determined or rejected. As the President decided in Sudi, where a person is able to seek relief or remedy 'independently of the Charter', it may be sought on the 'ground of unlawfulness ... arising because of the Charter'.[26] As Hollingworth J said in Sabet, the question is not whether an application based on non-Charter unlawfulness is rejected but whether, as between such an application and a claim of Charter unlawfulness, 'the relief or remedy sought is the same'.[27] As I said in Patrick's Case, where a ground of Charter unlawfulness is established, the tribunal can grant relief or remedy sought on a ground of non-Charter unlawfulness 'whether or not [that latter ground] is determined'.[28] As Kyrou J said in Debono, the jurisdiction of the tribunal under s 39(1) is enlivened by 'the mere exercise of any available right to seek relief or remedy ... on a ground that is independent of the Charter'.[29]

40 In Caripis v Victoria Police[30] the tribunal adopted an approach that was consistent with this reasoning. In an application where the retention of protest footage retained by Victoria Police was attacked as unlawful under the Information Privacy Act 2000 (Vic), the tribunal also considered (under s 39(1)) the lawfulness under the Charter of that retention. The tribunal determined the human rights grounds of unlawfulness under the Charter even though it rejected the application under the Information Privacy Act.[31]

41 Similarly, in Slattery v Manningham City Council[32] the tribunal (as constituted by the senior member who decided the present case) rejected a submission that the tribunal did not have jurisdiction (under s 39(1)) to consider the unlawfulness under the Charter of acts constituting unlawful discrimination under the Equal Opportunity Act 2010. Following Sudi,[33] the tribunal decided that the lawfulness of the acts of the Council (a public authority under the Charter) on non-Charter grounds was directly before it. Therefore, s 39(1) required the human rights grounds of unlawfulness to be determined.[34] Both grounds of unlawfulness were upheld.[35]

42 Having regard to the tribunal's reference to Caripis and Slattery, I have anxiously considered whether its reasons for decision can be read in a way that is consistent with its obligations under s 39(1). In particular, I have considered whether the tribunal actually did implicitly determine the human rights grounds and thereby exercise the jurisdiction in that provision. Giving the reasons the fairest reading I can, I must conclude that it did not. In my view, the tribunal considered that it was relieved of the responsibility to exercise the jurisdiction in s 39(1) because it had rejected the discrimination claim and it thereby erred in law. As I have pointed out, the jurisdiction of the tribunal under s 39(1) to grant relief or remedy is an important means of giving effect to and vindicating the human rights in the Charter. The tribunal wrongly failed to exercise that jurisdiction.

43 In carefully prepared and presented submissions, Common Equity Housing contended that, even if the tribunal committed an error of law in failing to exercise its jurisdiction under s 39(1) of the Charter, it would be futile to remit the case for reconsideration. This was because Ms Goode's discrimination complaints and human rights complaints did not correspond in the way required by s 39(1) and because the tribunal's findings and decision in relation to the discrimination complaints wholly disposed of the human rights complaints.

44 Counsel for Common Equity Housing and the Commission made competing submissions in relation to the operation of s 39(1) as regards the acts and decisions of public authorities. For Common Equity Housing, it was submitted that s 39(1), where it applied, only permitted relief or remedy on grounds of Charter unlawfulness to be granted in respect of the act or decision for which relief or remedy was sought on grounds of non-Charter unlawfulness. In other words, the act or decision had to be the same. For the Commission, it was submitted that the focus in s 39(1) was on the relief or remedy, not the act or decision. Therefore, where s 39(1) applied, the relief or remedy available with respect to one act or decision could be sought with respect to another act or decision.

45 In my view, the submissions made for Common Equity Housing should be accepted. Section 39(1) was not intended to create a new cause of action based on Charter unlawfulness (however desirable that might have been). As the discussion in the authorities reveals, it was designed to enable a person to seek relief or remedy 'in respect of an act or decision of a public authority' on a ground of Charter unlawfulness where he or she has an independent entitlement to seek such relief or remedy on a ground of non-Charter unlawfulness. The words 'that relief or remedy' appearing late in the provision relate to the words 'any relief or remedy in respect of an act or decision of a public authority' appearing early in the provision. The relief or remedy that may be sought on a ground of Charter unlawfulness is the relief or remedy that may be sought in respect of the act or decision of a public authority on a ground of non-Charter unlawfulness. The provision was not designed to enable a person to seek relief or remedy on grounds of Charter unlawfulness with respect to acts or decisions not falling within the independent entitlement of the person to seek relief or remedy on grounds of non-Charter unlawfulness.

46 I would therefore accept the submission of Common Equity Housing that, as regards the tribunal's jurisdiction under s 39(1), it would be futile to remit the case for reconsideration by the tribunal in respect of acts or decisions that were not the subject of Ms Goode's discrimination complaints. With that submission in mind, I have compared Ms Goode's particulars of discrimination complaints with her particulars of human rights complaints, as specified in each case by the tribunal (see above).

47 While I am concerned that some of the acts or decisions referred to in the latter may go beyond those identified in the former, I cannot say that all of them necessarily do so. More particularly, I think it is properly a matter for the tribunal to determine whether the focus of the relief or remedy sought on human rights grounds is upon the act or decision of Common Equity Housing for which relief or remedy was sought on discrimination grounds or goes beyond that focus.

48 I would likewise not remit the case for reconsideration if it was clear that rejection of Ms Goode's discrimination complaints necessarily required rejection of her human rights complaints in the sense that the reasoning of the tribunal as regards the former necessarily encompassed the latter. With that principle in mind, I have examined the reasons for decision of the tribunal in relation to the rejection of the discrimination complaints as against the particulars of Ms Goode's human rights complaints.

49 It is immediately obvious that the focus of the tribunal's reasoning was exclusively upon the discrimination complaints. There was no attempt to deal with the human rights complaints. Although some of the human rights complaints probably would have to be rejected by virtue of the tribunal's reasoning or findings in relation to the discrimination complaints, it is not possible for the court to determine that this is necessarily so with respect to all of the human rights complaints. Moreover, here too it is properly a matter for the tribunal to determine whether the relief or remedy sought by Ms Goode on grounds of Charter unlawfulness should be rejected because of the reasoning adopted, or findings made, in relation to the discrimination unlawfulness.

50 Accordingly, there must be an order allowing the appeal, setting aside the decision of the tribunal and remitting the proceeding for reconsideration, at least in relation to the failure of the tribunal to exercise jurisdiction under s 39(1).

Ground 2: link between Common Equity Housing and Access CERC

51 This ground concerns para (a) of Ms Goode's particulars of discrimination, namely that Common Equity Housing discriminated against her in the area of employment on the basis of disability or impairment by forcing her to give up her voluntary employment as a maintenance director for Access CERC in June 2006.

52 The tribunal decided that this complaint could not be upheld because the definition of 'employee' in the Equal Opportunity Act 1995 did not include an unpaid worker or volunteer. This is not the subject of appeal and would appear to be an insuperable impediment to success on ground 2.

53 The tribunal went on to find that Common Equity Housing was not the relevant decision-maker with respect to Ms Goode's involvement with Access CERC. Moreover, decisions about the roles to be carried out by volunteer employees were made by Access CERC. Therefore, Common Equity Housing could not be held responsible for any discriminatory acts of Access CERC.

54 The decision of the tribunal in this respect was based upon the finding of fact that Common Equity Housing and Access CERC were two different entities and other findings of fact about the areas within which each was responsible. Ms Goode has not established that the tribunal made any errors of law in relation to these findings. The many items of evidence referred to in her written submissions under this ground were all for the tribunal to consider. It has not been established that the tribunal failed to consider relevant evidence and it is not for the court to reconsider the tribunal's findings of fact.

55 In written submissions, Ms Goode contended that the tribunal denied her procedural fairness in making these findings. I must reject this claim. I can see no unfairness in the procedure that was adopted by the tribunal when considering these matters.

Ground 3: insufficient opportunity to explain grounds

56 This ground concerns para (b) of Ms Goode's particulars of discrimination, namely that Common Equity Housing discriminated against her in the area of accommodation and goods and services on the basis of age and disability or impairment by forcing her to resign from Access CERC and become a direct tenant of VicWide (the name of Common Equity Housing's tenancy arm).

57 The tribunal found that Common Equity Housing was not responsible for the decision-making processes which resulted in Ms Goode's resignation from Access CERC and becoming a tenant of VicWide. It also found that age was not a criterion for tenancy with VicWide.

58 The evidence before the court as to the procedure adopted by the tribunal does not establish that it denied Ms Goode procedural fairness in the respect alleged. Merely cutting a party or witness off, accepting that that happened, does not necessarily amount to procedural fairness. The reasons for decision indicate that the tribunal considered the evidence in relation to this aspect of Ms Goode's discrimination claim. The findings of fact that it made cannot be appealed except on legal grounds and none have to been established.

Ground 4: insufficient weight given to Dr Rigby's evidence

59 This ground relates to evidence given by Dr Bryon Rigby, Ms Goode's consultant psychiatrist, regarding her Post Traumatic Stress Disorder. Ms Goode contends that Dr Rigby's evidence was acknowledged but not given sufficient weight by the tribunal.

60 The tribunal set out the contents of one of Dr Rigby's reports, which was comprehensive, in its reasons for decision. In the later consideration of the discrimination claims, the tribunal accepted this evidence and other evidence and took it into account. Examination of the reasons for decision reveals that the tribunal gave careful consideration to Dr Rigby's evidence. While it was for the tribunal to determine how much weight should be given to this evidence, it is apparent that it afforded considerable weight to it. It has not been established that the tribunal committed an error of law in relation to its consideration of Dr Rigby's evidence.

61 This ground of appeal was addressed in Ms Goode's written submissions. The rationale given relates to her complex medical condition, her failure to obtain an adequate remedy despite many years of trying and other matters. The focus of the submissions is upon the way she was allegedly treated by Common Equity Housing, in particular.

62 Having considered these submissions and Ms Goode's oral submissions, I cannot find on the evidence before the court that the tribunal breached the rules of natural justice or conducted the proceeding in a way that gives rise to a reasonable apprehension of bias. This ground of appeal is not established.

Ground 6: transfer of material from one file to another

63 This ground was developed in Ms Goode's oral submissions. As she explained at the hearing, she is concerned that the material in the tribunal file relating to proceeding A60/2012 had not been transferred to the file relating to proceeding A65/2013, as she had requested. In her submission, documents and evidence relating to the latter proceeding were contained in the file relating to the former proceeding.

64 I have examined the evidence before the court in relation to Ms Goode's submissions. That evidence does not permit the court to make a finding that the material which Ms Goode asked to be before the tribunal was not before the tribunal in the latter proceeding. This ground of appeal is not established.

65 Ms Goode has established that the tribunal erred in law in failing to exercise the jurisdiction conferred by s 39(1) of the Charter to grant relief or remedy in respect of the acts or decisions of public authorities on human rights grounds even though her discrimination claims against Common Equity Housing under the Equal Opportunity Act 1995 and Equal Opportunity Act 2010 were rejected. The discrimination grounds and the human rights grounds of seeking the relief or remedy were independent and the tribunal should have exercised its jurisdiction with respect to both. She has not established any of the other grounds of appeal.

66 Pursuant to s 148(5) of the Victorian Civil and Administrative Tribunal Act, there will be an order extending the time in which to make an application for leave to appeal until 20 March 2014. Pursuant to s 148(1), there will be an order granting leave to appeal.

67 Pursuant to s 148(7), there will be orders setting aside so much of the order of the tribunal as dismissed Ms Goode's application for relief or remedy under s 39(1) of the Charter and, in respect of that aspect of her application, remitting the proceeding to be heard and decided again by the tribunal (as originally constituted) according to law, either with or without the hearing of further evidence as the tribunal determines. The order of the tribunal will be otherwise affirmed.

[1] Goode v Common Equity Housing Limited (unreported, Victorian Civil and Administrative Tribunal, Senior Member G Nihill, 19 December 2013).

[2] [2007] VSC 337; (2007) 17 VR 100, 129-30 [138]-[142].

[3] [1999] VSCA 117; [1999] 3 VR 331 (Tadgell, Phillips and Batt JJA).

[4] [2012] VCAT 1472 (27 September 2012) (Senior Member B Steele).

[5] [2013] VCAT 1869 (30 October 2013) (Senior Member G Nihill).

[8] See PJB v Melbourne Health ('Patrick's Case') [2011] VSC 327 (19 July 2011) (Bell J) [296]-[297].

[9] Sudi (2011) 33 VR 559, 580 [96].

[11] [2011] VSC 327 (19 July 2011).

[12] [2013] VSC 407 (1 February 2013) ('Debono').

[13] See the second reading speech in the Legislative Assembly by Attorney-General (the Hon Rob Hulls): Hansard, 4 May 2006, p 1294; and p 28 of the explanatory memorandum.

[15] Ibid 430 [102] ff, 443 [192]-[195].

[16] [2011] VSC 327 (19 July 2011).

[18] Sabet [2008] VSC 346; (2008) 20 VR 414, 430 [104] (Hollingworth J).

[19] [2011] VSC 327 (19 July 2011) [296]-[297].

[21] [2013] VSC 407 (1 February 2013).

[22] [2011] VSC 327 (19 July 2011).

[25] Debono [2013] VSC 407 (1 February 2013) [81]-[82].

[28] [2011] VSC 327 (19 July 2011) [299].

[29] [2013] VSC 407 (1 February 2013) [82].

[30] [2012] VCAT 1472 (27 September 2012) (Senior Member B Steele) ('Caripis').

[32] [2013] VCAT 1869 (30 October 2013) (Senior Member G Nihill) ('Slattery').

[33] (2011) 33 VR 559 (Warren CJ, Maxwell P and Weinberg JA).

[34] [2013] VCAT 1869 (30 October 2013) (Senior Member G Nihill) [160].

Opportunity Act 1995

Opportunity Act 2010