Plaintiff v Defendants

Supreme Court of Victoria|2015-12-11|Before: Derham AsJ

[2015] VSC 703 First Revision: 27 June 2017

JUDICIAL REVIEW AND APPEALS - Application for leave to appeal from VCAT under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) - Whether question of law - Whether real or significant argument that Tribunal was in error - Leave refused.

2 The plaintiff seeks leave to appeal the final order dismissing his application pursuant to s 148 of the Act. The principles applicable are well known and are set out below.

3 In addition to the first defendant, Deakin University, there are 11 further defendants who were respondents in the application made in the Tribunal. I will refer to the defendants collectively as 'Deakin' except where it is necessary to refer to the individual defendant.

4 In all the questions of law raised by the plaintiff, the central point is that a summary dismissal application under s 75 of the Act cannot be used as, or in a way analogous to, a 'no case to answer' application.

5 In the reasons that follow, I conclude that it is open to use the power in s 75 after the applicant has had every opportunity to identify the subject matter of the complaint and produce all available evidence in support. In these circumstances, where a submission is made that on the balance of probabilities the plaintiff has not established that there has been a contravention of the particular legislation in question, and there is nothing of substance which requires an answer from the respondent, the Tribunal is empowered to dismiss the application pursuant to s 75 of the Act.

6 I therefore conclude that there is no real or significant argument that the Tribunal fell into error in dismissing the complaints made by the plaintiff pursuant to s 75 of the Act after all the plaintiff's evidence was heard. I further find that if I am wrong in my conclusion that there is no real or significant argument to be put that error exists, then I consider that to refuse leave would impose no substantial injustice on the plaintiff.

7 The plaintiff's claim alleged discrimination, victimisation and unfavourable treatment and sought payment for allegedly performing higher level duties and an alleged excessive workload. In addition, the plaintiff sought an apology and damages.

8 The learned Member heard all of the evidence adduced by the plaintiff in support of his claims of discrimination, victimisation and unfavourable treatment. The plaintiff had closed his case. Deakin then applied pursuant to s 75 of the Act to dismiss the application on the grounds that it was frivolous, vexatious, misconceived or lacking in substance. The Member:

(a) found that she was satisfied that the plaintiff had the attributes of disability (namely, depression first identified in 2010 and advised to Deakin in 2013), employment activity (his role as Chair of the Academic Progress Committee ('APC') and his industrial association (his challenge to workload allocation and complaints about academic integrity) as defined under the EO Act;

(b) assumed for the purposes of an assessment of the merits of the claims that the plaintiff had established the unfavourable treatment on which he relied;

(c) found that she was not satisfied that there was a connection between the assumed unfavourable treatment and any or all of his attributes (that is his disability, his employment activity and his industrial association). She rightly observed that it was not sufficient that the plaintiff just identify that he had received unfavourable treatment. He must establish that the treatment had arisen as a result of one of his attributes. The attribute need not be the sole reason for the unfavourable treatment, but it must be a substantial reason;

(d) found that there was no evidence to suggest the plaintiff was singled out, or that his depression was a reason for the increased workload allocation experienced, let alone a substantial reason;

(e) found that there was no evidence to suggest that the directions made relating to his role as Chair of the APC arose as a result of the plaintiff's disability. The evidence showed that there was a difference of opinion in the role of Chair of the APC that was the substantial reason for any perceived unfavourable treatment or lack of support;

(f) found that there was no evidence linking the results of any performance reviews of the plaintiff with any challenge made by Weber to previous results. There was no evidence that the plaintiff's employment activity gave rise to any lack of support in his role as Chair of the APC. Nor was there any evidence of any relationship between the plaintiff's employment activity and the worsening of his depression;

(g) found that there was no evidence that any industrial activity by the plaintiff was a substantial reason for any unfavourable treatment he received;

(h) found that Deakin had made adjustments to the plaintiff's work that were reasonable in the circumstances. There was no substance to the claim that reasonable adjustments were not made by Deakin in response to the plaintiff's depression disability. The plaintiff advised the university of this disability in June 2013 and Deakin immediately engaged a Disability Services Manager who formulated a reasonable adjustment plan. The learned Member was satisfied that the adjustments made were reasonable given the nature of the work and the work environment; and

(i) found that the plaintiff had not established a link between the alleged instances of victimisation and any disadvantage or material difference in treatment. There was no evidence that Deakin or any of its staff took any retaliatory action for complaints made under the EO Act. There was no evidence that the university took any action to cause the plaintiff any mental harm, nor was there any evidence that leads or led to the conclusion that any complaint under the EO Act was a reason behind any activity of Deakin in relation to Weber.

9 The plaintiff relied upon his affidavit sworn on 22 December 2014, to which he exhibited the orders of the Tribunal made on 6 November 2014, the written reasons of the Member dated 20 November 2014 and a draft Notice of Appeal, which was subsequently revised.

10 Deakin relied on the affidavits of Amy Marie Goricanec, a law clerk with the defendants' solicitors, sworn on 5 and 25 March 2015,[1] and two folders of exhibits to those affidavits. Those exhibits include the orders made by various Tribunal Members in the course of the proceeding leading up to the trial of the plaintiff's claims, the plaintiff's Particulars of Claim (comprising 156 pages and 391 paragraphs), the defendants' Response to the Particulars of Claim, the written submissions of the plaintiff and Deakin, and the transcript of the hearing which occupied three days, noting that the last day of the hearing the transcript failed to record. Ms Goricanec produced a transcription of her notes of the last day, redacted to remove records of privileged communications.

11 The proceeding in the tribunal was commenced on 6 November 2013. The plaintiff alleged discrimination, an excessive workload and sought payment for allegedly performing higher level duties, damages and an apology. A directions hearing was held on 17 February 2014 before a Senior Member at which the plaintiff sought to amend his claim and add four respondents (the ninth, tenth, eleventh and twelfth defendants to this application). The leave was granted. The Senior Member also ordered a compulsory conference on 22 April 2014.[2]

12 The applicant served amended particulars of complaint on 25 February 2014.[3] This comprised 156 pages and 391 paragraphs. The particulars of complaint referred to exhibits which had not been served with it. On 14 April 2014, the parties attended a further directions hearing before Member Dea who ordered that the plaintiff file and serve a summary of the amendments he had made to his claim and identify any new claims and allegations. The Member also ordered the defendants to file a short form of particulars of defence. During the directions hearing on 14 April 2014, the plaintiff sought leave to join further respondents to his claim, but this application was declined by the Member on the basis that it would be dealt with after the compulsory conference (if that was unsuccessful). The Member also required the applicant to bring to the compulsory conference two copies of the exhibits referred to in his particulars of claim, one for the tribunal and one for the defendants.[4]

13 The compulsory conference took place on 22 April 2014, before Senior Member Megay.[5] At the conclusion of the compulsory conference, orders were made as to the future conduct of the proceeding. In particular, it was ordered that the amended particulars of claim, and Exhibits MW-001 to MW-366, should stand as the plaintiff's witness statement. Senior Member Megay also ordered:[6]

The respondents have liberty to apply at the conclusion of the applicant's evidence for an adjournment to prepare a response if the justice of the case requires.
In the alternative, at the conclusion of the applicant's case, the respondent shall be at liberty to make a submission that the application should be dismissed and this application can be made without the respondents being put to their election and shall be determined as if it was a final submission on the balance of probability.

14 Senior Member Megay ordered that the applicant should focus his claim on the allegations of discrimination in employment as a result of any one or all of his attributes, being; disability, employment activity, industrial activity and the defendant's failure to make reasonable adjustments in response to his disability, and their failure to deal with requests regarding his performance review.[7]

15 The defendants duly filed a response to the plaintiff's particulars of claim on 17 July 2014. At that time, the plaintiff had still not provided all the exhibits to his amended particulars of claim.

16 The hearing of the plaintiff's claim commenced before Member Campana on 22 July 2014. It continued on 23 and 25 July 2014. On the first day of the hearing, the plaintiff presented to the Tribunal and the defendants two large lever arch folders of documents that he stated he wanted to include as part of his evidence. They had not been provided to the defendants beforehand.[8] Member Campana allowed the plaintiff to rely on the documents, although the defendants stated that they needed time to review them before conducting any cross-examination. The plaintiff also told the Tribunal that he needed to amend his amended particulars of claim to add additional allegations, which was allowed. The hearing proceeded and the plaintiff called as his witnesses Professor David Jones and Ms Manita Stokes, both employees of Deakin University.[9]

17 At the commencement of the second day of the hearing, the plaintiff provided the Tribunal and the defendants with a further thick bundle of documents upon which he sought to rely as part of his evidence. Member Campana allowed this.[10]

18 Also on the second day, the defendants sought directions from Member Campana as to how the hearing would proceed, and requested that the plaintiff provide written submissions regarding his claim because it had been expanded and additional material had been provided. Member Campana confirmed that rather than the party presenting their submissions orally she would set a time table for the parties to file and serve written submissions after the plaintiff had concluded his evidence. Following which, she would give her decision regarding the defendants' application for summary dismissal of the plaintiff's claim. The plaintiff gave evidence viva voce during the course of the second day.[11]

19 On the third day of the hearing, the plaintiff provided further documents to the Tribunal and the defendants to be part of his evidence. Again, this was allowed. He submitted that the defendant should be compelled to put on their evidence in response so that he could test that evidence. Member Campana responded that the defendants were able to adjourn the matter and return to put on their evidence or make an application to dismiss the application summarily. The plaintiff continued to give evidence and informed the Tribunal that his claim had changed and it was now his opinion that his allegations of discrimination only made up 30% of his case and the balance was victimisation.[12]

20 At about midday on the third day, the plaintiff confirmed with Member Campana that he had completed calling his evidence. The hearing was adjourned briefly to enable the defendants to review the additional material provided to them that morning before cross-examining the plaintiff. After the adjournment, the plaintiff informed the Tribunal that he had missed five things during his evidence and wanted to address them. Member Campana allowed him to reopen his evidence and address the five topics he said he had forgotten. After dealing with these matters the plaintiff stated that he had concluded his evidence.[13]

21 The defendants then confirmed that they wished to make application to dismiss the plaintiff's case under s 75 of the Act. The defendants also asked that the plaintiff provide written submissions in support of his case against the defendants due to the fact that during the hearing he had verbally amended his claim to include new allegations and had provided additional evidence on a number of occasions. Member Campana made orders requiring the plaintiff to file and serve written submissions, including documents and exhibits on which he relied but had not provided to the defendants. Member Campana also made orders for the defendants to file and serve written submissions in the support of the application to dismiss and that the plaintiff should file and serve a written response.[14]

22 At this time, the plaintiff also requested that the tribunal set aside hearing time for the defendants to put on their evidence. The Member agreed to book in a further five days in October or November, but informed the plaintiff that this was subject to her decision regarding the defendants' application to dismiss the proceeding summarily. In her order the Member provided:

The Applicant having concluded his evidence and the Respondents electing to make submissions that the Applicant's case be dismissed (in accordance with the order of the Tribunal dated 22 April 2014), the Tribunal orders and directs as follows...[15]

23 After orders were made extending the time for compliance with the orders of Member Campana, the plaintiff filed and served on the defendants his written submissions dated 23 August 2014,[16] and subsequently the defendants filed their written submissions on 8 September 2014.[17] The plaintiff filed a response on 19 September 2014.[18]

24 A judge has a duty in relation to represented and unrepresented litigants alike to ensure that the trial is conducted fairly and in accordance with law.[19] It is a frequent consequence of self-representation that the Court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy.[20] What a judge must do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant's intelligence and understanding of the case.[21] The judge cannot be the advocate of the self-represented litigant, for the role of the judge is fundamentally different to that of an advocate. The judge must maintain the reality and appearance of judicial neutrality at all times and to all parties. The assistance must be proportionate in circumstances - it must ensure a fair trial and ought not afford an advantage to the self-represented litigant.[22]

25 In Rajski v Scitec Corporation Pty Ltd[23] Samuels JA said:

In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent ... At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.

26 I have sought during the hearing, and in considering the facts and arguments, to apply these tenets in the determination of the application by Deakin to dismiss the application for leave to appeal, paying due regard to the status and occupation of the plaintiff as a lecturer at Deakin in the Faculty of Science, Engineering and Built Environment. These matters are also relevant to the hearing before the VCAT Member, and are sought to be relied upon in support of the grounds of appeal.

27 The procedure for applying for leave to appeal under s 148 of the Act is regulated in part by Order 4 of Chapter II of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008. Rule 4.09(1) confers discretion on the Associate Judge and, without limiting that discretion, empowers refusal of leave if the Associate Judge is satisfied that the applicant does not have a prima facie case on appeal, or that to refuse leave would impose no substantial injustice.

28 The approach to the question whether or not leave should be granted under s 148(1) of the Act was set out comprehensively in the decision of the Court of Appeal in Secretary to Department of Premier and Cabinet v Hulls.[24] That approach was conveniently summarised by Warren CJ in Myers v Medical Practitioners' Board of Victoria.[25] That summary is as follows:

(a) whether leave is granted or not must always depend upon the justice of the particular case;

(b) if leave is to be granted, the applicant must at least identify a question of law (as distinct from a question of fact) which is important to the substantive appeal's succeeding or failing;

(c) the applicant need not establish an error below - that is for the appeal itself. Rather, the applicant will be required to show that there is a real or significant argument to be put that error exists;

(d) although not essential, the applicant may identify a question of law that is of general or public importance. This will weigh in favour of granting leave;

(e) once a question of law has been identified which bears directly upon the relief which will be sought in the appeal, and once it has been shown that there is sufficient doubt attending that question to justify the grant of leave to appeal, leave will ordinarily be granted if the order below is a final order or final in its effect; and

(f) where the order sought to be appealed is an interim order, there may be reason bearing on the justice done to both parties for not granting leave to appeal, for example, where granting leave to appeal will result in an unnecessary interruption to the substantive proceedings.

29 In Myers, Warren CJ noted that the guidelines laid out are not hard and fast rules and set out a part of the following passage from the reasons of Phillips JA in Hulls:

There is an obvious danger in seeking to summarise the considerations which bear upon the granting of leave to appeal. Ultimately what must govern is the justice of the case as it appears to the Court from which leave to appeal is sought, and that means justice to all parties, not just the applicant. As I said at the outset it is not appropriate for us to do any more than lay down guidelines and any guidelines will sometimes be found inadequate; but with that rider, the foregoing might be summarised along the following lines: When leave is sought to appeal under s 148, it will be necessary for the applicant to identify a question of law which is relevant to the granting of the relief sought on appeal. The importance of the question, either generally or to the would-be appellant in a particular case, will probably be relevant. The applicant must show that there is a real or significant argument to be put on that question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave. Moreover, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice, although, where the order below is final, that injustice will often be more readily discernible. [emphasis added]

30 In Hulls, Phillips JA considered an argument that the provision made by r 4.09 in some way provided criteria for the granting of leave to appeal. He somewhat emphatically rejected that this was the proper interpretation of the Rule. But it is apparent in my view, that the matters identified in r 4.09(2) which may guide an Associate Judge in refusing leave to appeal are consistent with, even on all fours with, the matters identified by the Court of Appeal in Hulls as circumstances in which leave to appeal may be refused.

75 Summary dismissal of unjustified proceedings

(1) At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion -

(a) is frivolous, vexatious misconceived or lacking in substance; or

(b) is otherwise an abuse of process.

(2) If the Tribunal makes an order under subsection (1), it may order the applicant to pay any other party an amount to compensate that party for any costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding.

(3) The Tribunal's power to make an order under subsection (1) or (2) is exercisable by -

(a) the Tribunal as constituted for the proceeding; or

(b) a presidential member; or

(c) a member who is a legal practitioner.

(4) An order under subsection (1) or (2) may be made on the application of a party or on the Tribunal's own initiative.

(5) For the purposes of this Act, the question whether or not an application is frivolous, vexatious, misconceived or lacking in substance or is otherwise an abuse of process is a question of law.

32 It is clear that although the Tribunal is not bound by the rules of evidence applicable in a court of law, and is obliged to conduct the proceeding with minimal formality and technicality, it is nevertheless bound by the principles of natural justice or procedural fairness.[26]

33 In Winn v Blueprint Instant Printing Pty Ltd,[27] Byrne J observed that the requirement that the Tribunal must act fairly and that it was bound by the rules of natural justice, but that this did not require that its procedures be that of a formal. He noted that the Act makes it clear that the Tribunal is to act in an informal way and that its procedures must be moulded to the fact that, in most cases, the parties will not be represented by a professional advocate. This means the Tribunal has to take a more active role and identify the real issues between the parties, directing them to the evidence which legally and logically bears on those issues. It may be that in a given case the Tribunal will itself interrogate witnesses in a manner and to an extent which would not be expected in a court. Of course, s 102(1) of the Act expressly obliges the Tribunal to afford the parties a reasonable opportunity to call evidence and to crossexamine witnesses and make submissions. This obligation is constrained by s 102(2) and by the ordinary requirements of relevance.

34 In Norman v Australian Red Cross Society,[28] Deputy President McKenzie summarised the principles applicable derived from State Electricity Commission of Victoria v Rabel[29] to an application under s 75 under the Act in the following way:

(a) the application is for the summary termination of the proceeding. It is not the full hearing of the proceeding;

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

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

(d) an application to strike out a complaint is similar to an application to the Supreme Court for summary dismissal of civil proceedings under r 23.01. Both applications are designed to prevent abuses of process. However, it is a serious matter for a Tribunal, in interlocutory proceedings which would generally not involve the hearing of oral evidence, to deprive a litigant of his or her chance to have a claim heard in the ordinary course;

(e) the Tribunal should exercise caution before summarily terminating a proceeding. It should only do so if the proceeding is obviously hopeless, obviously unsustainable in fact or in law, or on no reasonable view can justify relief, or is bound to fail. This will include, but is not limited to, a case where a complaint can be said to disclose no reasonable cause of action, or where a Respondent can show a good defence sufficient to warrant the summary termination of the proceeding;

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

(g) the test for determining whether a complaint is frivolous, vexatious, misconceived or lacking in substance is different from that applied in other Australian Anti-Discrimination jurisdictions where the legislative context is different from Victoria. It is similar to that applied by the Supreme Court in civil proceedings for the purposes of r 23.01; and

(h) the Tribunal should not apply technical, artificial or mechanical rules in construing a complaint or coming to a view about the case a Complainant wishes to advance.

35 In applying these principles it is important to bear in mind that they are applicable to a variety of situations, including the making of applications under the section at an interlocutory stage of a proceeding and also at a hearing after evidence is adduced. It is also pertinent to observe that these principles were expressed against the background of interlocutory applications.

36 There are a number of principles and propositions relevant to the scope and operation of s 75 derived from a variety of decisions, particularly in VCAT itself.[30] Most reinforce the express terms of the section. Those that are relevant to this proceeding are as follows:

(a) an application may be made under the section at any time in a proceeding;[31]

(b) there is a distinction between an order dismissing the proceeding and one striking it out. The former brings the proceeding to an end without any possibility of reinstatement; whilst the latter enables the possibility of a reinstatement;[32]

(c) the respondent bears the onus of establishing that VCAT should exercise its discretion to summarily dismiss or strike out all or part of the proceeding;[33]

(d) the power applies to any proceeding in VCAT;[34]

(e) oral evidence may be called in an application under the section;[35]

(f) there are no formal requirements for an application under this section save that the basis upon which it is said the proceedings should be dismissed or struck out should be clearly enunciated with reference to the wording of the section;[36]

(g) it is a precondition to a valid order under the section that VCAT makes an express finding that the proceeding is frivolous, vexatious, misconceived or lacking in substance, or is otherwise an abuse of process. The reasons given must support that finding;[37]

(h) there is an overlap between the concepts identified in s 75(1)(a). The proceeding may be frivolous or misconceived because it is lacking in substance;[38]

(i) misconceived in the context of the section means "obviously untenable or groundless."[39] This includes that the application is outside the jurisdiction,[40] is statute barred,[41] or raises matters the applicant is estopped from raising;[42] and

(j) it is open under the section to ask whether there is anything of substance which requires an answer from the respondent after the complainant has had every opportunity to identify the subject matter of the complaint and produce all available evidence in support.[43]

37 In my view, it follows from these propositions that it is open to use the power in s 75 after the applicant has had every opportunity to identify the subject matter of the complaint and produce all available evidence in support. In these circumstances, where a submission is made that on the balance of probabilities the plaintiff has not established that there has been a contravention of the particular legislation in question, and there is nothing of substance which requires an answer from the respondent, the Tribunal is empowered to dismiss the application. I discuss this aspect of the matter further below.

The Questions of Law, the Parties Submissions and Consideration

38 The plaintiff's amended draft Notice of Appeal contains seven questions of law, each of which has several sub-paragraphs. Deakin contends that none of the questions properly allege an error of law and that the grounds are without substance. I will set out each question in the way in which the plaintiff has presented it in his amended draft Notice of Appeal dated 20 March 2015 and dealt with it in his outline of submissions.[44] I will set out my view as to whether there is a real or significant argument to be put that error exists in relation to each question of law and state my conclusions, by reference to each question separately.

Whether the Tribunal erred in law and misdirected itself by failing to adhere to the principles of natural justice and prejudiced the outcome and caused a diminution in the capacity of the Tribunal to conduct a fair hearing.

40 The plaintiff advanced 11 sub-paragraphs to substantiate this the question. Some of the sub-paragraphs fall into groups. The first group concerns a contention that the Tribunal did not afford the plaintiff procedural fairness by failing to advise and explain to him the legal ramifications of an application for summary dismissal under s 75 of the Act and not holding a full hearing of all the evidence, including the evidence of Deakin. The relevant sub-paragraphs are as follows:

Did the Tribunal err in law by failing to advise and explain to the Applicant the legal ramifications of a summary dismissal application under s 75; (question 1(a))

Did the Tribunal err in law by failing to advise and explain to the Applicant that it was deviating from the prescribed procedural process of a summary dismissal application under s 75, and stating any legal ramifications of such a deviation; (question 1(b))

Did the Tribunal err in law by detouring on a frolic of its own in diverging from the rules and test required of a summary dismissal application under s 75; (question 1(c))

Did the Tribunal err in law by directing that the complaint be brought on for a full hearing, and then conduct the hearing as a summary dismissal application, without any prior notice to, or notice at the commencement or during the conduct of the hearing, to the Applicant (question 1(j)).

Did the Tribunal err in law by breaching the hearing rule of natural justice (question 1(k)).

41 The plaintiff referred to the decision of Kyrou J in Hoe v Manningham City Council[45] and the decision of Bell J in Tomasevic v Travaglini & Anor.[46] In substance what he says is that the Member had failed to ensure a fair trial for him as a self-represented litigant. He said that he went into the hearing on the basis that it was a full hearing of his case. The Tribunal could not allow a summary dismissal once it had embarked on a full hearing.[47] He relied on the whole of the transcript of the hearing before the Tribunal to make good this submission. As I noted earlier, the assistance afforded to a self-represented litigant must be proportionate in the circumstances so as to ensure a fair trial, without giving an advantage to the self-represented litigant over the opposing, represented party.

42 It seems to me that the Tribunal and counsel representing Deakin did explain to the plaintiff the process upon an application for summary dismissal. At the very outset of the hearing, after the plaintiff had sought to introduce two lever arch folders of further materials concerning further complaints of victimisation and by way of introducing material relevant to submissions, Counsel for Deakin referred to the order of Senior Member Megay and the directions she made following the Compulsory Conference. He noted:[48]

I'll just ask the Tribunal if we can go to that order of Senior Member Megay just in terms of procedure for this hearing. You'll see that Mr Weber is to present his evidence, after which my clients are able to either make submissions in terms of dismissal or seek an adjournment to prepare the respondents' evidence.

43 On day two of the hearing,[49] there was discussion about how the matter would proceed having regard to what apparently was a change in direction of the plaintiff in making his application. After referring to the use of written submissions the learned Member stated:

Given that there is going to be presentation of material, Mr Weber, today, on the fly so to speak, it might be easier for you to then present written submissions to me and I will talk to you about a time frame that you might like to provide those as to what you say were the attributes, reference to evidence as to what evidence you say supports your contentions that you were discriminated against on the basis of those particular areas and how you were treated unfavourably as a result of that.[50]

44 The learned Member then responded to a question from the plaintiff as to whether the respondents were required to appear to give evidence, saying:

Whether the application is dismissed at that point or whether there is a case to answer and the respondents need to come back and then present their evidence and then we'll proceed. So that's I think how we'll proceed, I think that's the best way to move forward, particularly if the parties weren't aware that we weren't sitting tomorrow.[51]

45 The plaintiff asked a number of questions of the Member about the presentation of his evidence, in particular evidence as to the University policies and the member indicated that she was not going to apply strictly the requirement that he present those policies in his evidence providing he referred to the policies and appended them to his submissions. The plaintiff indicated that he had read a lot of case law about the leading of evidence. The member said:

I am making it very clear to you today, Mr Weber, that in relation to policy and procedure specifically - that the University will be aware of because it is part of their policy and procedure - I am not going to tie you strictly to presenting that in your evidence ... I am happy for you to refer to that by way of submissions. This Tribunal is not strictly bound by the rules of evidence, so we're going to move outside that ...[52]

46 On the third day, 25 July 2014, in relation to which the transcript is missing, the plaintiff maintains he challenged the order of Senior Member Megay. The notes of that day in evidence do not bear out that contention. Those notes show that he contended that the orders of Senior Member Megay were incorrect, to which Member Campana responded that they were not.[53] The plaintiff maintained that the notes were wrong in this respect. His recollection was that the Member said she could not change the orders. As I understand his submission, his argument is now, and was then, that the application under s 75 could not be used in the course of a full hearing of his complaints and that once a full hearing commenced, the defendants had to go into evidence.[54]

47 For the reasons I canvass below, I reject that submission. Even if he had properly made that submission to Member Campana, and it was rejected, it could not lead to a real or significant argument that she fell into error for the substantive reasons set out below.

48 It is clear to me from a review of the evidence and the transcript, combined with the history of the proceeding as set out above,[55] that the plaintiff was well aware before the hearing of the prospect of Deakin making a submission at the end of his case that it be dismissed. Senior Member Megay made this abundantly clear in the directions she gave at the conclusion of the compulsory conference on 22 April 2014.[56] The directions were referred to early on the first day of the hearing, as I have said. During the hearing Member Campana made it clear what was to happen and gave the plaintiff an appropriate opportunity to supplement his documentary evidence by including it with his written submissions. In my opinion, she thereby afforded assistance to the plaintiff proportionate to the circumstances. I am therefore satisfied there is no significant argument that there has been a denial of procedural fairness to the plaintiff, quite the contrary.

49 In the course of his oral submissions in support of his the application for leave to appeal, the plaintiff maintained that he was mistaken as to the process. It seems that he thought he was addressing an interlocutory application under s 75 of the Act which related to the content of his complaint and not his evidence, or at least that is how I understood his position as explained during argument.[57] He maintained that at the end of the third day the process to be adopted was not explained to him. The transcript for the third day is missing. Ms Goricanec has produced her notes of what occurred (redacted to remove privileged material). On the last 2 pages of those notes she recorded:[58]

Ms Campana: (Mr Weber concludes his evidence and Ms Campana requests to hear from the Respondent)

Ms Kupsch [Counsel for Deakin]: We make an application for s 75 dismissal application.

Ms Campana: [in regard to Mr Weber's evidence] she will be dealing with Mr Weber's evidence at its highest].

[She will consider] Those matters and contravention [raised by Mr Weber in regard] to [his] witness statement.

(Member Campana requests that Mr Weber outline in his application):

What remedy or relief you are seeking
[provide] reference to the additional material; and
How it is discrimination and victimisation;
If you say you were victimised in bringing a claim of discrimination- [please provide] case law, documentation, [and] legislation.

[Mr Weber is to provide written submission in support of his case in] 3 weeks. You [Mr Weber] can write to the Tribunal seeking an extension.

Mr Weber: (confirmed that he would be expanding on his witness statement and including more allegations as since the orders of Member Megay made on 22 April 2014 more issues had arisen).

Ms Campana: [The respondent is to provide written submissions in support of their application to dismiss Mr Weber's claim] within 14 days [after Mr Weber submits written submissions in support of his case.] [Mr Weber is to provide a response to the Respondent's application 14 days after] 14 days Mr Weber's response [is to be provided].

[I have] booked the case in for a further 5 days [for the respondents to put on their evidence as requested by Mr Weber] subject to any determination I make with the summary dismissal application.

Parties can apply in writing at any time to extend the timetable. [Member] Campana will need to be referred to [in] this [in your request so that she may approve the extension].

Mr Weber: I only want the solicitors [for the Respondent] communication with me.

50 It emerges quite clearly from these exchanges that the process adopted involved the plaintiff completing his evidence and making his submissions, Deakin making its submission in support of its application to dismiss the proceeding, and then the plaintiff responding. There is no question of a denial of procedural fairness to the plaintiff in this procedure being set down and followed. If he was mistaken about the process it is not due to a want of explanation by the Tribunal.

51 In general, it can be said in relation to the way Member Campana conducted the hearing that the plaintiff was afforded procedural fairness and treated with due regard to the fact that he was self-represented. He was given great liberty in the way he presented a very large volume of materials and was allowed to provide additional materials without notice and adjust how he was putting his complaints. The plaintiff had the opportunity to summarise his materials and to incorporate additional Deakin University policies which would not otherwise have been in evidence and he was allowed to write submissions explaining exactly how he put his case.

52 The plaintiff advanced the following question of law:

Did the Tribunal err in law by simply adopting the views of the Respondents (without any evidence adduced by them in support of the application) and in doing so failed to decide the issues for itself; (question 1(d))

53 The reasons of the Tribunal show that it undertook a detailed, thorough and independent consideration of the complaints and that it considered the evidence in support of the complaints made by the plaintiff and did not simply adopted the views of Deakin.[59] It is plainly correct that no evidence was led by Deakin. That is because the application for summary dismissal was made at the conclusion of the plaintiff's evidence and before Deakin had adduced any evidence. Deakin was not obliged to lead evidence. It was adopting a course of action analogous to the making of a no-case submission in a legal proceeding in a court.

Did the Tribunal err in law by failing to constrain the application for summary dismissal solely to the Applicant's originating complaint and not the Applicant's evidence adduced at the full hearing; (question 1(e)).

Did the Tribunal err in law by failing to give prior notice to the Applicant that it intended to rely on the respondents' written submission, and which failed to identify any defect in the applicants originating complaint, but rather to rely on the applicants evidence tendered at the full hearing (question 1(f)).

55 These questions seem to be based on the proposition that s 75 is available only to strike out the original complaint. That is not so, and the plaintiff cannot have been unaware of this from the time of the compulsory conference held by Senior Member Megay. The Tribunal did warn the plaintiff that it would rely on written submissions from both Deakin and from him.

Did the Tribunal err in law by deciding on the summary dismissal application where in all the circumstances, it was not open to the Tribunal because it lacked jurisdiction.

57 This proposition is picked up in a different way in Question 2. I will deal with it under that heading.

58 Then the plaintiff raises some miscellaneous questions, as follows:

Did the Tribunal err in law by failing to expressly state in its reasons that the Applicant's complaint was frivolous, vexatious, misconceived or lacking in substance (when it had already decided that it was not an abuse of process) and provided the reasons to support the finding (question 1(h)).

Did the Tribunal err in law by failing to administer and hear the summary dismissal application 'expeditiously' (question 1(i)).

59 The first of these questions refers to the requirement, established by the authorities, that it is a precondition to a valid order under s 75 that VCAT makes an express finding that the proceeding is frivolous, vexatious, misconceived or lacking in substance, or is otherwise an abuse of process. The reasons given must support that finding.[60] Contrary to the contention embedded in this question, the Tribunal did expressly find that there was no substance to the various claims.[61] In my view, there is no real or significant argument that the Tribunal failed to expressly find that the plaintiff's complaints were lacking in substance, nor that the Tribunal failed to provide reasons supporting the findings.

60 The second of the questions in this miscellaneous group depends upon the misapplication of the judgment of the Court of Appeal in SECV v Rabel. The provision under consideration in that case, s 44C of the then Equal Opportunity Act 1984 (Vic) ('the EO Act 1984'), required the application to be made before the hearing (that is at an interlocutory stage) and to be determined as expeditiously as possible. Section 44C, as it then was, provided:

44C. Application to strike out a complaint

(1) A respondent may apply in writing to the Board to have a complaint struck out on the grounds that it is frivolous, vexatious, misconceived or lacking in substance at any time between the lodging of the complaint and the commencement of the hearing of the complaint by the Board, other than at a time when the matter is in the process of being conciliated.

(2) The Board must begin to hear the application within 1 week of receiving it, and must determine the application as expeditiously as possible.

(3) In determining an application under this section -

(a) the Board must allow both the complainant and the respondent the opportunity to make both oral and written submissions; and

(b) in all other respects the procedure of the Board is at its own discretion; and

(c) the procedures of the Board in conducting an inquiry or proceedings before the Board set out in Division 3 of this Part do not apply.

61 There is no corresponding requirement in s 75 of the Act that the Tribunal must determine the application as expeditiously as possible. Although there is a general obligation in all proceedings that the Tribunal conduct the proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of the Act and the enabling enactment and a proper consideration of the matters before it permit.[62] The importance of the specific requirement in s 44C of the EO Act 1984 lies in the overall interpretation that the Court gave to that section in SECV v Rabel. The requirement for any application to be made before the commencement of the hearing (s 44C(1)) and the requirement that the Board must begin to hear the application within one week of receiving it, and must determine the application as expeditiously as possible, when combined with the requirements in s 44C(3), showed the intention that the application had to be dealt with at an interlocutory level, quickly and therefore not at trial. The operation of s 75 is quite different; it may be employed at any time.

62 The plaintiff complained of the delay in the summary determination of his complaints as if they had to be dealt with prior to any hearing of the complaints, that is at trial. This was put so as to demonstrate that the dismissal at the hearing was at odds with the requirement for expedition (s 89(1)(d)) and the requirements laid down in SECV v Rabel, and confirmed in Forrester v AIS Corporation & Ors[63] and Towie v Victoria,[64] that, in effect, an application under s 75 could not be made at trial and must be made at an interlocutory stage of the proceeding.

63 Having regard to the way in which the plaintiff has presented his application, particularly in his written submissions and draft Notice of Appeal, it is apparent that he has followed the reasoning of the Court of Appeal in SECV v Rabel (and the subsequent cases) without fully appreciating the differences in the applicable legislation and the particular subject matter and circumstances being considered.

64 This is also relevant to what I have concluded to be the central plank of his application, namely, that a summary dismissal application under s 75 of the Act must not be used as analogous to a 'no case to answer' application.

Whether, on its proper construction, s 75(1)(a) of the VCAT Act permits the summary dismissal of a proceeding after the commencement of a full hearing, and where in the circumstances all evidence had not been tendered.

65 There are three sub-paragraphs to this question, as follows:

Did the Tribunal err in law by failing to allow the Applicant the opportunity to adduce all evidence required to approve his case, either oral, written and/or elicited by way of cross-examination of the Respondents' witnesses (question 2(a));

Did the Tribunal err in law by allowing a summary dismissal application to be decided on outside the interlocutory period (question 2(b)); and

Did the Tribunal err in law by allowing the application to be decided outside the interlocutory period and in so doing did the Tribunal fail to follow and apply binding legal authorities (question 2(c)).

66 The plaintiff refers back to his submissions made in respect of question 1 and submits that it is clear from the reasons of the Tribunal, the defendant's affidavit in support and their outline of submissions, that the Tribunal allowed the claims made by the plaintiff in the Tribunal to go to a full hearing. It was unlawful for the Tribunal, having allowed the matter to go to a full hearing, to exercise the power summarily to dismiss the proceeding based only upon the plaintiff's material.[65] The plaintiff referred to various extracts from the Court of Appeal decision in SECV v Rabel and submitted:

A Respondent to a complaint may apply to have the complaint struck out, but it is evident that such an application is to be made at an interlocutory stage and that it is to be heard and determined expeditiously.[66] At all events, the procedures appropriate to a full scale hearing are regarded as inappropriate.[67] Where the Respondents to an application for summary dismissal put no material forward in support of its application[68] which is intended to show why the complaint ought not to proceed but which is limited to the Applicant's complaint,[69] and the Tribunal then only relies on 'the complaint documentation', the Tribunal has no jurisdiction to hear the application and must dismiss the application.[70]

67 The plaintiff then quoted from the reasons of Phillips JA in SECV v Rabel where his Honour said:[71]

In my opinion, an application under s.44C is closer to the type of application that may be made in a civil proceeding in this Court (for instance under order 23) for summary dismissal of the proceeding or for summary judgment in favour of the defendant. Indeed, in view of his Honour's references to General Steel Industries Inc. v. Commissioner for Railways (N.S.W.) and Dey v. Victoria Railways Commissioners, the learned Judge below may well have been proceeding upon similar lines, notwithstanding earlier references by him to Assal. Nevertheless it seems unnecessary on this appeal to state finally what test should be applied when it is claimed that a complaint is "lacking in substance" under s.44C. Suffice it to say that there was no warrant in this case for the Board's looking through the supporting documentation to see if it bore out (to whatever extent was thought relevant) the complaint that was being made. The Board's view that that supporting documentation did not bear out the complaint provided no foundation, in my opinion, for the Board's concluding that the complaint was "lacking in substance" within the meaning of s.44C, whatever the proper meaning of that phrase may be in that section.

68 The plaintiff submitted that the Tribunal fell into error in examining his material. By this I take it to mean that it was impermissible to use s 75 of the Act as a source of power to make a submission analogous to a 'no case' submission against a complainant in a VCAT proceeding.

69 I have set out above the text of s 44C of the EO Act 1984 that was under consideration in SECV v Rabel.[72] The submissions of the plaintiff sought to use the reasoning in that case to limit the reach of s 75. The result of his argument would be to deny the use of the power in a case where the trial of the complaints had been commenced and the evidence of the plaintiff had all been presented.

70 But that was not the circumstances facing the Court in SECV v Rabel. That was a case of an application at an interlocutory stage (as it had to be under the section), before any hearing of the evidence advanced by the complainant. In the short reasons of Tadgell JA (who agreed with the reasons of Phillips JA), his Honour made it clear that the wide power given by s 44C gave the Board jurisdiction to dismiss a complaint without receiving evidence, or without receiving evidence save that which it chooses to receive, the procedure being largely in its discretion. He remarked:[73]

Presumably, if a complaint is "struck out" pursuant to s.44C of the Equal Opportunity Act 1984 the effect upon it is as though it is dismissed: that is the end of it, and the order to strike out is appealable by virtue of s.49(4) as if it were a final order of the Magistrates' Court. The Equal Opportunity Board appears to have jurisdiction to achieve such a result without receiving evidence, or without receiving evidence save that which it chooses to receive: the procedure is largely in its discretion. In other words, in the exercise of the jurisdiction which s.44C confers, the Board may deprive a complainant of a hearing on the merits of a case which that complainant wishes to advance without receiving evidence at all. That being so a respondent to a claim, upon whose application alone the jurisdiction is exercisable, ought in my opinion to bear an onus to demonstrate that, consistently with the evident philosophy of the Equal Opportunity Act, the complainant's case should not be allowed to proceed. The jurisdiction conferred on the Board by s.44C is no doubt a useful one in that it enables the Board in appropriate cases to deal summarily with complaints that are obviously hopeless or obviously undeserving of relief. If no reasonable view of what a complainant desires to advance as a case could justify relief under the Act it would presumably be in everyone's best interests that the Board should so decide, and do so summarily. There could, however, be no justification for the Board's depriving a complainant of a right to pursue a claim for relief under the Act without knowing what case the claimant desired to pursue. [Emphasis added]

71 The emphasised passage in that quotation shows that it was the dismissal of the complaint on the basis of incomplete material that lay at the heart of the reasoning of the Court of Appeal. Having made these remarks, and others not presently relevant, Tadgell JA went on to describe as potentially open under that section the dismissal of a complaint after hearing the complainant's evidence:[74]

The Board did not conclude that the complaint was frivolous, vexatious or misconceived within the meaning of s.44C. It did conclude that the complaint was "lacking in substance" because, as I understand, there was an insufficiently solid factual foundation for it. That, of course, is a justification for dismissing a complaint after hearing the complainant's evidence. It is not, in my opinion, a justification for ordering that a complaint be "struck out" pursuant to s.44C - at all events without allowing evidence to be called by the complainant with a view to establishing a prima facie case. I agree that the Equal Opportunity Board should now be directed to hear and determine the respondent's complaint. [Emphasis added].

72 The plaintiff relied upon various passages from the reasons of Ormiston and Phillips JJA in SECV v Rabel to sustain the following propositions:

(a) under s 44C a test should be applied which is appropriate to a preliminary application heard "expeditiously" (as sub-s.(2) requires) on an interlocutory basis, i.e., before "the commencement of the hearing of the complaint";[75]

(b) the material available for a hearing of such an application must be limited to the complaint and any particulars thereof and such evidence, filed on behalf of the respondent, intended to show why the complaint ought not proceed, and any answer thereto by the complainant, none of which having regard to the timetable can be expected to canvass the whole of the case but merely deal with specific matters of defence raised by the respondent;

(c) the basis for hearing the application is akin to that applicable under rr 23.01 and 23.03 of Chapter I of the Supreme Court (General Civil Procedure) Rules 2015 ('the Rules'). Though evidence may be called, it should be confined to that which shows that the complaint is either frivolous or vexatious or that which shows that the complaint is so lacking in substance that it ought to be summarily terminated, together with any necessary answering material from the complainant;

(d) in the absence of a proper hearing at which the complainant has an opportunity to call all relevant evidence, there can be no satisfactory way of determining that a complaint should be dismissed at a preliminary stage. Unless it can be demonstrated, either from the materials by which the complainant has instituted the claim or by reference to facts which would undoubtedly deny the complainant relief, that the complaint is so hopeless that it should be summarily brought to an end;[76]

(e) whatever test may be acceptable at other stages of the administrative process or during the conduct of an ordinary tribunal hearing, a complaint cannot be dismissed under s 44C or its successor unless it is clear beyond doubt that the complaint is lacking in substance. That is, that the complainant has no arguable case which should be allowed to be resolved at a full hearing;[77] and

(f) the procedures appropriate to a full scale hearing are regarded as inappropriate to an application under s 44C.[78]

73 The plaintiff's transposition of these propositions from SECV v Rabel to this case does not work. The position under s 44C of the EO Act 1984 is significantly different to the position under s 75 of the Act, as it was different from the provisions of the Commonwealth Racial Discrimination Act 1975 considered by Sir Ronald Wilson in Assal.[79] As Phillips JA said in SECV v Rabel:[80]

But that is by no means all that the learned president said in Assal. As his Honour observed below:-

[The president] also rejected a formulation of the test in terms that it must be clear that the complainant has no reasonable prospect of success. Instead, the appropriate test, Sir Ronald Wilson held, was whether the evidence was capable of establishing each of the elements which was required to be established if the offence was to be proved. He concluded, at p.78,903, that the evidence in that case 'falls far short of demonstrating a capacity to establish racial discrimination. It holds out no real possibility of success for the complainant in these proceedings'. [emphasis added]

That reference to "the evidence" points up what I think is the very real difference between this case and cases like Assal which arise under s.25X of the Racial Discrimination Act 1975. Section 25X confers a power on the relevant Commission to "dismiss a complaint" which may be exercised "at any stage of an inquiry", that is, the inquiry into the substance of the complaint. Nagasinghe[81] illustrates the difference. In that case an Indian dentist was complaining of racial discrimination when she failed to obtain a job at a Medical Centre. Upon the inquiry into her complaint, she gave her evidence on oath and was followed by the principal witness for the Medical Centre, who was cross-examined, before the Commissioner considered the respondent's application under s.25X. In contrast, s.44C confers a power which is plainly to be exercised only at an interlocutory stage, before the commencement of any full-scale hearing by the Board and thus quite possibly (in the discretion of the Board) before the taking of any evidence at all - a possibility which is confirmed, I think, by the provisions of s.44C(3)(b) and (c). I should have thought that on that account the application, authorised by s.44C, could not be approached along similar lines to an application under s.25X of the Racial Discrimination Act, which makes it altogether improbable that a test devised in relation to s.25X would be useful on an application under s.44C.

74 As these passages from the reasons of Phillips JA make clear, the express terms of, and legislative intendment behind, s 44C were the limiting factors. By contrast, in this case, as in Assal, the Tribunal may determine an application to dismiss "at any time", which must mean at any stage of the proceeding in VCAT, including during a full hearing on an application analogous to a 'no case submission'.

75 The plaintiff has been led into confusion about the operation of s 75, in my opinion, by the fact that the decision in SECV v Rabel, and the subsequent cases, such as Forrester v AIS Corporation & Ors[82] and Towie v Victoria,[83] concerned applications before the hearing or trial of the complaints. The common situation of such an application being made at an interlocutory stage of the proceeding has resulted in decisions in which the appellate courts have emphasised the need for considerable circumspection to be exercised by the Tribunal before too readily accepting such an application where the complainant has not had the opportunity to call evidence and to explain the very essence of how they are aggrieved, particularly in the discrimination context.

76 In the reasons for decision, Member Campana observed:[84]

While the Tribunal must exercise the greatest of caution in dismissing any case summarily, in the majority of cases in which summary dismissal is sought the Applicant has not put all the evidence before the Tribunal. The present application for summary dismissal has occurred after Mr Weber has lead all of his evidence. His case is at its highest. The questions for determination by the Tribunal, are the same as those that would have to be answered at the end of a hearing - Has Mr Weber established on the balance of probabilities that there has been discrimination or victimisation? Has Mr Weber established a basis for the argument that the Respondents have failed to provide reasonable adjustments to accommodate his disability? These questions will be answered below.

77 In making these observations, the learned Member applied the appropriate test derived from the authorities to which I have referred. It is therefore my view that there is no real or significant argument that the Tribunal fell into error in dismissing the complaints made by the plaintiff pursuant to s 75 of the Act after all his evidence was heard.

78 I mention for the sake of completeness the 'killer point' made by the plaintiff in his oral submissions, namely that on the face page of the reasons the 'Hearing Type' is described as 'Summary Dismissal Application', where in fact it was listed as the full hearing of his complaints.[85] This description is apt to describe the reasons because that was the application before the Member on which she was giving her reasons. The same would have been the description had she rejected the application.

79 The plaintiff submitted, of course, that he does not need to establish an error below - that is for the appeal itself. Rather, the applicant will be required to show that there is a real or significant argument to be put that error exists.

80 If I am wrong in my conclusion that there is no real or significant argument to be put that error exists, then I consider that to refuse leave would impose no substantial injustice on the plaintiff. I reach that conclusion because the learned VCAT Member considered all the evidence of the plaintiff and it is not suggested that she fell into error in the factual or legal conclusions she reached, save in minor respects raised by Questions 6 and 7, and these I consider not to raise real or significant arguments that the Tribunal made an error of law.

81 Paragraph 1(g) under Question 1 (referred to above at paragraph 56 above) effectively raises the same point but casts it in terms of VCAT's jurisdiction. It fails to disclose a real or significant argument that the Tribunal lacks the jurisdiction to order the complaints be dismissed for the same reasons.

Whether the Tribunal erred in law and misdirected itself by failing to ask itself the proper question with respect to s 131 of the VCAT Act.[86]

82 There are three sub-paragraphs to this question, as follows:

Did the Tribunal err in law by failing to apply its legal authority during the course of a full hearing, that is, to amend a previous procedural order which allowed a summary dismissal application to be hearing during the course of a full hearing, in order to avoid an error (question 3(a));

Did the Tribunal err in law by allowing itself to be bound to a previous order which provided for the hearing of the application to be heard on the basis of a Supreme Court 'no case to answer' rather than a 'strike out' application (question 3(b)); and

Did the Tribunal err in law in failing to allow the Applicant to make submissions during the course of the full hearing, in respect of rebutting the previous Tribunal orders allowing a summary dismissal application to be made at the conclusion of the Applicant's evidence (question 3(c)).

83 The plaintiff referred back to his submissions made regarding the applicability of the decision of the Court of Appeal in SECV v Rabel, as referred to above in relation to questions 1 and 2. He submitted that a summary dismissal application must not be conducted as a 'no case to answer' application. This, he submitted, was an error of law by the Tribunal and that it prejudiced the plaintiff's complaint. He referred to s 102(1) of the Act, which expressly obliges the Tribunal to afford the parties a reasonable opportunity to call evidence and to cross-examine witnesses and make submissions.[87] He referred to his affidavit in support of the application at paragraphs 16 to 18[88] where he says that the Tribunal during the full hearing made a fundamental error. He says he made a submission to Member Campana that the orders made by Senior Member Megay at the compulsory conference on 22 April 2014 were ultra vires and that the Member had erred in allowing Deakin the power of election to make an application for summary dismissal during the course of a full hearing. The plaintiff said from the Bar table that Member Campana said that she did not have authority to change the previous order and told him that an application for summary dismissal would be considered at the conclusion of his evidence.

84 The plaintiff submitted that his rights to a full hearing were prejudiced by the Tribunal binding itself to a previous order, which was within its authority to change. He also submitted that the direction for him to make a written submission "against the respondent's verbal application to summarily dismiss my case without the respondents first having made out their claim was tantamount to 'putting the cart before the horse' and this caused me to be harmed."[89]

85 Deakin submitted that to the extent that the plaintiff asserted that Member Campana considered herself bound by the orders of Senior Member Megay, this was factually incorrect because the plaintiff was permitted to expand his claim and his evidence beyond what was ordered by Senior Member Megay.

86 Deakin also submitted that its application was for summary dismissal under s 75 and not a 'no case to answer' submission. The application was properly made and heard and the plaintiff was afforded an opportunity to file a response to the written submissions filed by Deakin in support of the application for summary dismissal.

87 I have searched the transcript of the second day of the hearing on 23 July 2014, and the notes of the third day, 25 July 2014 and cannot find any record where the plaintiff says that he made application for the Tribunal to vary the order of Senior Member Megay. As I have said,[90] there is a reference to a submission that he contended the order of Senior Member Megay was incorrect. Even if he had properly made that submission to Member Campana, and it was rejected, it could not lead to a real or significant argument that she fell into error for the substantive reasons I give above. I agree with the submissions of Deakin that in considering the application to dismiss the complaints pursuant to s 75, Member Campana did not misdirect herself either with respect to the operation of s 131 of the Act, or in any other respect.

Whether the Tribunal erred in law and misdirected itself by failing to adopt the correct procedure into the application for summary dismissal by the Respondents that caused prejudice to the Applicant.

88 There are two sub-paragraphs to this question, as follows:

Did the Tribunal err in law by conducting the summary dismissal application as a court of record 'no case to answer' application (question 4(a))? and

Did the Tribunal err in law by failing to conduct the summary dismissal application on the basis of a 'strike out' application under r 23.01 and 23.03 of the Rules of the Supreme [Court]?

89 The plaintiff again refers back to the submissions he made in support of questions 1 and 2, which focussed on the principles established in SECV v Rabel. He submitted in support of this question that a summary dismissal application under s 75 must not be conducted as a 'no case to answer' application.

90 Deakin referred back to the submissions it made in relation to the application of SECV v Rabel. The operation of s 75 is different from the procedure to be adopted in an application in the Supreme Court under rr 23.01 and 23.03 of the Rules. An application for summary dismissal under s 75 can be made at any time in a proceeding. In this case, the application was heard at the completion of the plaintiff's evidence at which time the Tribunal was able to understand the claims made "at their highest"[91] and undertake its assessment of that evidence in accordance with the procedure prescribed in s 75. The Tribunal correctly noted that it must exercise the jurisdiction with the greatest of caution.[92]

91 I refer to my reasoning above in relation to questions 1 and 2. There is no real or significant argument that the Tribunal fell into error in the approach it took to the application. If there is such an argument, for the reasons I give above, to refuse leave to appeal would impose no substantial injustice on the plaintiff.

Whether, on its proper construction, s 117(5) of the VCAT Act, the Tribunals reasons failed to give complete expression as to the reasoning process that it had employed so as to move from its consideration of the evidence to its conclusion.

92 There are three sub-paragraphs to this question, as follows:

Did the Tribunal err in law by failing to adopt and administer relevant, binding legal authorities from superior jurisdictions in its reasons and in so doing, failing its legal obedience to follow and apply such authorities (question 5(a))?

Did the Tribunal err in law by simply repeating the words of s 75 of the VCAT Act without any application of the legal principles in its reasons to grant the summary dismissal application (question 5(b))? and

Did the Tribunal err in law by failing, in its reasons, to provide its statement of legal principles relevant to the application of the summary dismissal before it, and then its application of those legal principles to justify its decision (question 5(c))?

93 The plaintiff submitted that the Tribunal was obliged to give reasons which include findings on all material questions of fact, refer to the evidence or other material upon which those findings are based and provide an intelligible explanation of the process of reasoning that has lead the Tribunal from the evidence to the findings and from the findings to the ultimate conclusion. The plaintiff submitted that the reasons are devoid of any substantive legal principles to support them and notwithstanding paragraph 16 of the Reasons, they simply repeat the words of s 75 without any statement of legal principles or how those principles are applied.

94 Deakin submitted that the requirements of s 117 of the Act were punctiliously met by the Tribunal. The reasons refer to the evidence on which the findings on material questions of fact are based and provide an explanation of the process of reasoning that led from the evidence to the findings. The Tribunal set out its understanding of the applicable law so that it is clear what law the Tribunal applied in arriving at its conclusions. The path of reasoning is clear.

95 It seems to me that the main criticism that the plaintiff makes of the reasons of Member Campana concerns the fact that she does not go through the authorities to which the plaintiff refers, particularly SECV v Rabel, as to the operation of s 75. In my view, the reasoning of the learned Member is perfectly acceptable and I agreed with the submissions of Deakin in this respect.

Whether on its proper construction, the Equal Opportunity Act 2011, the Tribunals reasons failed to identify that acts of discrimination and victimisation, by way of detrimental action by the Respondents that had been taken against the Application. (sic)

96 There are six sub-paragraphs to this question, as follows:

Did the Tribunal err in law by failing to identify that discrimination against the Applicant had been undertaken by the Respondents whilst employed by the First Respondent (question 6(a))?

Did the Tribunal err in law by failing to identify that victimisation had been undertaken by the Respondents after complaints of discrimination had been made against the Respondents by the Applicant whilst employed by the First Respondent (question 6(b))?

Did the Tribunal err in law by failing to identify that threats of termination of the Applicant's employment were undertaken by the Respondents whilst the Applicant was on personal leave (question 6(c))?

Did the Tribunal err in law by failing to identify that the Respondents failed to safely return the Applicant to work, failed to return the Applicant to work on a return to work plan, and failed to follow its own policies in regard to the Applicant's returning to work after an illness (question 6(d))?

Did the Tribunal err in law by failing to determine that the Applicant's employment with the First Respondent was terminated (question 6(e))? and

Did the Tribunal err in law by failing to determine that the termination of the Applicant's employment amounted to constructive dismissal (question 6(f))?

97 In support of this question, the plaintiff submitted that he returned to work on 20 March 2014, on a certificate of capacity signed by his medical practitioner. Deakin failed to return him to work, reduced his pay to 50% and refused to allow him to conduct any university duties.[93] Subsequently, Deakin placed him on unpaid sick leave.[94] The failure of Deakin to place the plaintiff on a return to work program and also to dismiss him was a breach of the EO Act.[95] Similarly, the plaintiff submitted that unilaterally demoting him by reducing his workload and his wage by 50%, and subsequently by 100%, is termination of the plaintiff's employment, which is tantamount to constructive dismissal.[96] The Tribunal found that no detriment had been suffered by the plaintiff.

98 Deakin submitted that the Tribunal thoroughly assessed the plaintiff's evidence in relation to the claims of discrimination,[97] and found that Deakin had not discriminated against him. Similarly, in relation to victimisation, the reasons demonstrate that the plaintiff's evidence was thoroughly examined[98] and its findings in relation to those claims were sound. In relation to the assertion that the Tribunal failed to identify threats of termination of the plaintiff's employment undertaken whilst he was on personal leave, the evidence surrounding the plaintiff's communications with the university were analysed by the Tribunal[99] and the Tribunal stated that it was satisfied based on those facts that Deakin had not engaged in any acts of victimisation or threatening behaviour.

99 In relation to paragraphs 6(d), the plaintiff contends that the Tribunal was in error by failing to identify that Deakin failed to safely return the plaintiff to work, implement a return to work plan, and to follow its own policies in regard to the plaintiff returning to work after an illness. Deakin submitted that these assertions assume the plaintiff was fit to return to work and/or that Deakin did not make efforts to accommodate adjustments to the plaintiff's working conditions. These assumptions are not consistent with the evidence given at the hearing. The Tribunal's findings clearly record the evidence given of the plaintiff's medical condition and his communications with the university regarding his return to work.[100] The Tribunal found that Deakin's actions in response to the plaintiff's medical condition and attempts to return to work did not constitute discrimination or victimisation.

100 In relation to paragraph 6(e), where the applicant contends that the Tribunal was in error by failing to determine that the plaintiff's employment by Deakin was terminated, Deakin submitted this question assumed the plaintiff's employment was terminated. However, the plaintiff remains employed by Deakin (the first defendant) and is currently on unpaid leave, having exhausted his leave entitlements.

101 In relation to the submission by the plaintiff in reliance on the decision in Collier v Austin Health & Ors,[101] the facts in that case were fundamentally different from the facts in this case. In Collier, the employee suffered from mental illness and had been certified by a medical practitioner as being fit to return to work. She wished to access the benefits associated with her employer's return to work program. Her employer refused and the evidence in relation to that refusal indicated that her employer was reluctant to return her to work and preferred to 'get her off the books.'[102]

102 In this case, as the Tribunal recorded,[103] at the time the plaintiff advised Deakin that he was returning to work, he presented a medical certificate which required him to work on restricted duties, none of which were able to be fulfilled given the nature of his employment. The plaintiff was subsequently assessed by Dr Daniels as unfit to return to work. Deakin communicated to the plaintiff that he remain on sick leave subject to further assessment to be undertaken in three months,[104] which the plaintiff failed to attend. The Tribunal found that Deakin's payment of 50% of the plaintiff's wages was not a reduction but rather a nominal payment made notwithstanding that his paid leave entitlements had been exhausted.[105] Similarly, Deakin did not then reduce the plaintiff's pay by 100%, but rather the plaintiff had exhausted his leave entitlements and remained on unpaid leave. In short, the plaintiff's employment has not been terminated by Deakin.

103 In relation to paragraph 6(f), where the plaintiff asserted the Tribunal fell into error by failing to determine that the termination of the plaintiff's employment amounted to constructive dismissal, Deakin referred back to the submissions referred to above.

104 I have examined the reasons of Member Campana in relation to the contentions of the plaintiff and Deakin. I find that in every respect, Deakin's submissions are correct. In my view, on the facts found by the Tribunal, there is no real or significant argument that the Tribunal was in error in setting out the reasons for the conclusions it reached that no acts of discrimination or victimisation had been taken by Deakin against the plaintiff as set out in question 6.

Whether the Tribunal erred in law by failing to provide the Applicant with human rights protections afforded by the Charter of Human Rights and Responsibilities Act 2005.

105 There are four sub-paragraphs to this question, as follows:

Did the Tribunal err in law by failing to have the proceeding decided with a competent, independent and impartial Tribunal after a fair hearing (question 7(a));

Did the Tribunal err in law by discriminating against the Applicant because of his protected attributes (question 7(b));

Did the Tribunal err in law by contravening the provisions of the Act, that is: '...to protect and promote human rights by imposing an obligation on all public authorities to act in a way that is compatible with human rights' (question 7(c)); and

Did the Tribunal err in law by failing to consistently with their purpose, interpret all statutory provisions in a way that is compatible with human rights (question 7(d)).

106 The plaintiff submitted that the Tribunal has obligations under the Charter of Human Rights and Responsibilities Act 2005 (Vic) ('the Charter') which it has failed to apply. He submitted that if the Tribunal has been found to misinterpret s 75 and/or has detoured on a frolic of its own, then it would amount to a breach of the Charter. I refer to my reasons why Questions 1 and 2 do not give rise to a real or significant argument that the Tribunal was in error in dismissing the complaints under s 75 of the Act. The plaintiff's rights under the Charter are no greater than those which, as a matter of law, he has pursuant to s 75.

107 The plaintiff does not identify the respects in which the proceeding was decided otherwise than by a competent, independent and impartial Tribunal after a fair hearing. Deakin submitted that the Tribunal conducted a fair hearing and its reasons demonstrate a rational and transparent basis upon which its conclusions were reached. I cannot but agree, particularly in the absence of any identifiable failure of the Tribunal to afford the plaintiff a fair hearing.

108 In paragraph 7(b), the applicant contends that the Tribunal discriminated against him because of his protected attributes. Deakin submitted that there is no factual or legal basis for this contention. The Tribunal was mindful of the plaintiff's metal illness in its approach to the conduct of the hearing and afforded the plaintiff breaks during the presentation of his evidence and the explanations of the processes where appropriate. I do not agree the Tribunal discriminated against the plaintiff.

109 In paragraph 7(c), the plaintiff alleges the Tribunal contravened a provision of the Charter which required it to protect and promote human rights by imposing an obligation on all public authorities to act in a way compatible with human rights. This appears to relate to s 1(c) of the Charter, which is the Charter's purpose section. A contravention of the purpose of the Act does not constitute a justiciable error of law. In any event, it has not been shown that Member Campana's approach to the determination of the complaints against Deakin under the EO Act could give rise to any different reasoning or result were the analysis of Deakin's actions considered in the context of its position as a public authority.

110 In paragraph 7(d), the plaintiff asserts the Tribunal failed to interpret all the statutory provisions in a way compatible with human rights. Deakin submitted that in accordance with its submissions made in relation to Question 6, the Tribunal acted appropriately and its interpretation of the statutory provisions relevant to the plaintiff's claim was reasoned and well documented in its findings. The Tribunal did not detour on a frolic of its own as alleged by the plaintiff. There is no question of law or proper ground of appeal raised by Question 7. Once again, I agree with Deakin.

Other Submissions Referred to in the Plaintiff's Affidavit

111 As a matter of completeness, Deakin makes submissions in relation to various matters referred to in the plaintiff's affidavit in support of the application for leave to appeal, even though they are matters not directly connected with the questions of law or grounds of appeal set out in the amended draft notice of appeal.[106] I will deal briefly with these matters so as to put at rest any thought or contention that the plaintiff has not been given a full hearing or that his submissions have not been properly considered.

112 The various matters referred to in the plaintiff's affidavit, and the submissions made by Deakin concerning them, and my own views, are as follows:

(a) in paragraphs 2 to 10 the plaintiff asserts the Tribunal did not follow proper procedure under s 75 in dismissing the proceeding. These matters have been dealt with in relation to Questions 1 and 2 above;

(b) in paragraph 12 the plaintiff referred to his statement of intention on the third day of the hearing to subpoena further documents from Deakin for cross-examination purposes and the Member stated this was not necessary. This is factually incorrect. This issue arose after the plaintiff had closed his case. He sought further documentation at this time, but the Member declined his application on the basis that what he was seeking was irrelevant to his claim.[107] Deakin points out that this represents a misunderstanding of the Tribunal's powers under s 75 and the procedure to be followed when application for summary dismissal is made. To the extent that the plaintiff contends that he had not presented all of his evidence at the time Deakin made its application for summary dismissal, that can only be on the footing that the plaintiff sought to have the opportunity to cross-examine Deakin's witnesses. As has been pointed out above, the plaintiff was given every opportunity to introduce his evidence, such as by requiring the attendance of staff of Deakin, and by including further documents in the submissions he made;

(c) paragraphs 28 and 29 of the plaintiff's affidavit addresses issues in relation to his allegedly excessive workload and asserted "it is law that where an employer engages in causing an employee to work an excessive workload, and this causes some detriment, that this constitutes 'Bullying'". He also states that the Member failed to take into account his complaints of excessive workloads in arriving at her decision. Deakin points out that this is factually incorrect in that the Tribunal's written reasons specifically addressed the plaintiff's allegations in relation to this workload. The plaintiff experienced an increased workload but that this was a part of a plan across the entire university and there were directions that each staff member had to take on additional work. The Tribunal found there was no evidence to suggest that the plaintiff was singled out.[108] I agree;

(d) in paragraph 32, the plaintiff alleges the Tribunal failed to consider that his performance reviews and subsequent appeals were being undertaken by those he had made complaints against. Once again, Deakin submitted that this was incorrect in that the Tribunal's consideration of the evidence lead in relation to the plaintiff's performance reviews is thoroughly documented in the written reasons. To the extent that the Member misreported the findings of the performance review, the error was not relevant to the ultimate findings in relation to the claims in the proceeding. I agree;

(e) in paragraph 36, the plaintiff alleges that the Tribunal was in error in not providing a complete expression of the reasoning as to why the Tribunal rejected the evidence tendered in relation to his Workcover claim. During the hearing the plaintiff requested the Tribunal make orders requiring Deakin to provide him with a copy of a report of a Mr Joe Graffam and the letter written by Mr Michael O'Donoghue to Dr Daniels. The Tribunal specifically addressed this request and refused to make the orders sought and noted that the documents were not relevant. The Member nevertheless stated that she had heard and would take into account the plaintiff's evidence in relation to the circumstances surrounding his Workcover claim and the medical examination conducted by Dr Daniels;[109]

(f) in paragraphs 37 and 38, the plaintiff refers to the issue of the making of reasonable adjustments in the work place. He says that in his evidence he provided documents from Deakin that clearly state that no reasonable adjustments had been put in place. The Tribunal failed to take into account this evidence and that has affected the outcome. Deakin submitted that the Member did not ignore any vital evidence or the totality of the reasonable adjustments sought. On the contrary, the Member's findings demonstrate a thorough review of all the available evidence and clearly state the reasoning by which the Tribunal's findings in relation to reasonable adjustments were made.[110] In my view, the plaintiff has not demonstrated that the Member failed to take evidence into account and the reasons of the Member appear to deal with the plaintiff's evidence in this regard;

(g) in paragraphs 44 and 45, the plaintiff refers to disclosures he made under the Whistleblowers Protection Act 2001. He contended that his confidentiality was breached after making these disclosures. The Tribunal concluded no breaches of confidentiality occurred given the evidence before it.[111] The plaintiff contended the Member had erred in law in reaching this conclusion. In any event, the plaintiff's statements regarding this issue do not relate to any ground of appeal or question of law. I agree with Deakin's submission that the Tribunal's findings were consistent with the evidence led by the plaintiff; and

(h) in paragraph 48, the plaintiff refers to the vicarious liability of employers for discrimination by its employees. He asserts that s 105 of the EO Act comes into play by the mere act of the employer. This is a misstatement of the operation of s 105. The Tribunal's written reasons specifically addressed the plaintiff's misunderstanding of the operation of this provision.[112] Once again, I agree.

113 For the reasons set out above, the plaintiff has not established that there is any real or significant argument that in relation to any of the identified questions of law the Tribunal fell into error in a way which is important to whether the application to dismiss the plaintiff's complaints against the defendants succeeded or failed.

114 Accordingly, the application for leave to appeal will be dismissed. I will hear the parties as to the costs of the application after they have had an opportunity to consider these reasons.

[1] First Goricanec Affidavit and Second Goricanec Affidavit, respectively.

At a glance

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Judgment (277 paragraphs)

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Legislation Cited (11)

Cases Cited (8)