Victorian Civil and Administrative Tribunal|2013-03-14|Before: Mr P

This matter is listed for a compulsory conference at 10 am on 10 April 2013 on site at the Whitecliffs to Camerons Bight Foreshore Park. The Applicant must attend in person. A representative of the Respondents with authority to settle the matter on that Respondent's behalf must attend. The legal representatives of the parties may attend. The Respondent is to notify the Tribunal and the Applicant of the address details for the compulsory conference no later than 3 April 2013.

The Applicant is to file with the Tribunal and serve on the Respondents witness statements on or before 3 May 2013.

The Respondents are to file with the Tribunal and serve on the Applicant witness statements on or before 24 May 2013.

The Applicant is to file and serve any material in reply on or before 31 May 2013 and on or before that date the parties are to exchange and file all the material on which they intend to rely at hearing.

Unless the Tribunal gives leave and save in accordance with these Directions, the parties may not:

(a) present a case at the hearing different from that contained in the material filed by that party in the proceeding;

(b) call a witness whose statement has not been provided;

(c) seek to present further evidence-in-chief beyond that contained in the statement of a witness's evidence filed with the Tribunal.

This matter is listed for a 3 day hearing commencing at 10 am on 11 June 2013 at 55 King Street Melbourne.

The applicant, his parents and other family members have camped at the Tyrone Foreshore Camping grounds in Rye (the camping grounds) for some 63 years. For more than the last 20 years, they have been allocated site 14.
In August 2011, they were allocated site 36. This re-allocation followed a dispute between the applicant's family and the occupiers of sites 4, 10 and 18.
The applicant, acting on his parents' behalf, complains that site 36, and others offered to them as alternatives, are not suitable for his parents, both of whom suffer from disabilities for the purposes of the Equal Opportunity Act 2010 (EO Act). The applicant says that, in allocating a camp site other than 14, the respondent has discriminated against his parents.
The respondent operates the camping grounds. It has applied for an order under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) for the proceeding to be summarily dismissed.

Section 75 gives the Tribunal discretion to dismiss or strike out a proceeding whether or not all the evidence has been heard. It can do so if, in its opinion, all or part of the proceeding is frivolous, vexatious, misconceived or lacking in substance, or is otherwise an abuse of process.
There have been many cases about section 75 and the law about how to approach the section is clear.[1] The Tribunal is required to exercise caution before summarily terminating a proceeding. It should only do so if the proceeding is obviously hopeless or 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 an application 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. If the applicant indicates to the Tribunal that the whole of his or her case is contained in the material before the Tribunal, the Tribunal may consider whether, on all of that material, there is a real question of substance which should go to a full hearing. However, where an applicant indicates that there is other evidence to be called, unless that evidence is heard, the Tribunal cannot determine the application on the basis of the material then before it.[2]
If the Tribunal is not satisfied that the proceeding should be summarily dismissed, the matter should go to a hearing so the applicant has the chance to have the complaint heard and so the evidence can be tested in the usual way. When the high bar set out above is not reached, and there is simply a dispute between the parties as to the complaint, the matter should go to hearing.
In considering an application under section 75, the Tribunal must take the applicant's case at its highest.

The applicant relies on sections 9 and 25 of the EO Act.
Section 9 deals with indirect discrimination and says as follows:

(1) Indirect discrimination occurs if a person imposes, or proposes to impose, a requirement, condition or practice

(a) that has, or is likely to have, the effect of disadvantaging persons with an attribute; and

(2) The person who imposes, or proposes to impose, the requirement, condition or practice has the burden of proving that the requirement, condition or practice is reasonable.

(3) Whether a requirement, condition or practice is reasonable depends on all the relevant circumstances of the case, including the following -

(a) the nature and extent of the disadvantage resulting from the imposition, or proposed imposition, of the requirement, condition or practice;

(b) whether the disadvantage is proportionate to the result sought by the person who imposes, or proposes to impose, the requirement, condition or practice;

(d) the financial circumstances of the person imposing, or proposing to impose, the requirement, condition or practice;

(e) whether reasonable adjustments or reasonable accommodation could be made to the requirement, condition or practice to reduce the disadvantage caused, including the availability of an alternative requirement, condition or practice that would achieve the result sought by the person imposing, or proposing to impose, the requirement, condition or practice but would result in less disadvantage.

(4) In determining whether a person indirectly discriminates it is irrelevant whether or not that person is aware of the discrimination.

In summary, the applicant says that the requirement, condition or practice imposed on his parents is that they must abide by the decision of the respondent as to which site they are offered for camping accommodation without due consideration of their disabilities and the consequent unsuitability of the sites allocated or offered to them. The applicant says that such a requirement, condition or practice has the effect of disadvantaging Mr & Mrs Rigby because of their disabilities and is not reasonable. He says that, for a range of reasons, site 14 is the most suitable for his parents.
The applicant also says that the respondent has breached section 45 which imposes obligations regarding reasonable adjustments in the context of the provision of services. That section says as follows:

(a) if a person with an impairment requires adjustments to be made to the provision of a service by another person (the service provider) in order to participate in or access the service or derive any substantial benefit from the service;

(b) whether or not the services are provided for payment.

(2) The service provider must make reasonable adjustments unless the person could not participate in or access the service or derive any substantial benefit from the service even after the adjustments are made.

A service provider may make reasonable adjustments for a person with an impairment by -

• including subtitles in recorded audio-visual presentations;

(3) In determining whether an adjustment is reasonable, all relevant facts and circumstances must be considered, including -

(a) the person's circumstances, including the nature of his or her impairment; and

(b) the nature of the adjustment required to accommodate the person's impairment; and

(d) the effect on the service provider of making the adjustment, including -

(ii) the number of persons who would benefit from or be disadvantaged by doing so; and

(e) the consequences for the service provider of making the adjustment; and

(f) the consequences for the person of the service provider not making the adjustment; and

(g) any relevant action plan made under Part 3 of the Disability Discrimination Act 1992 of the Commonwealth; and

(h) if the service provider is a public sector body within the meaning of section 38 of the Disability Act 2006, any relevant Disability Action Plan made under that section; and

(i) any relevant disability standards made under the Disability Discrimination Act 1992 of the Commonwealth.

The applicant says that, by failing to provide site 14 to his parents, the respondent has breached section 45. He says that the provision of site 14 to his parents would be a reasonable adjustment which meets the obligation contained in section 45.
The applicant also says that he has further evidence to produce regarding the nature of Mr & Mrs Rigby's disabilities and as to why the sites other than 14 are not suitable in the light of those disabilities.

Consistent with paragraph [8] above, the respondent quite properly agreed that:

Each of Mr K Rigby and Mrs Rigby have disabilities within the meaning of that term as defined in the EO Act and so they have attributes which are protected 2. The respondent provided services to the applicant and his parents

The alternative sites offered to Mr & Mrs Rigby may be proven to be less suitable taking into account their disabilities or it may be proven that no other sites would be suitable

Mrs Rigby attends the camping grounds and will continue to attend as part of the family booking
The section 75 application was made before the respondent filed its defence and before any witness statements were filed. As a consequence, the material available to me to consider constitutes the applicant's application and particulars of complaint, the respondent's section 75 application and the submissions made to the Tribunal at the hearing.
The respondent said in its section 75 application that the material filed by the applicant does not give rise to an allegation of discrimination under the EO Act. At the section 75 hearing, the respondent agreed that the particulars of claim filed by the applicant made it clear that the applicant alleged the respondent had engaged in indirect discrimination under section 9 of the EO Act and had failed to make reasonable adjustments contrary to section 45 of that Act.
The respondent's application included the following:
- The applicant's real complaint is that the family has been allocated a site different to site 14
- The respondent has a discretion as to the acceptance of applications to camp and how to allocate camp sites. It seeks to balance the interests and concerns of applicants in the interests of promoting a safe and harmonious environment for all
- A camper has no entitlement to a particular site and there is no obligation on the respondent to give reasons for its site allocation decisions
- The respondent has little knowledge of Mrs Rigby and her disabilities
- The applicant and his family was allocated site 36 for April 2011 because of problems between the applicant and neighbours near site 14 in 2010. The applicant was informed of the allocation on or around 17 August 2011. The applicant and his parents were not removed from the site. The applicant was later offered alternative sites which were rejected
- The particulars of complaint do not allege anything which constitutes an allegation of direct discrimination or indirect discrimination
- All of the allegations concern the alleged unfairness and adverse effects on the applicant's parents of an allocation of a site other than site 14 - it is not a complaint about discrimination
- The first alternative site offered (site 36) is a premium site which is larger than site 14 and is a similar distance from the amenities block as site 14 and with good access
- No attempt has been made to establish a causal link between any alleged discrimination by the respondent and any protected attribute that the applicant alleges he or his parents possess
The respondent says that there is a complete absence of any fact, material or evidence that would support the applicant's allegation of discrimination. Having regard to all of these matters, the complaint is said to be manifestly groundless, hopeless or could not possibly succeed. It says that the underlying complaint and the proceeding are hopeless and unsustainable in law and could not justify relief. Accordingly, it seeks an order dismissing the proceeding under section 75.
At the hearing the respondent contended that, in truth, for the purposes of section 9 of the EO Act, the requirement, condition or practice the applicant relies on is a requirement to accept any site other than site 14. The respondent says it must be reasonable for such a condition to be imposed where the respondent must balance a number of matters in determining which sites to offer. Those considerations include the order in which applications are received, the availability of sites, how campers get on with each other and their mobility requirements.
On the question of whether reasonable adjustments were made, the respondent contended that Mr & Mrs Rigby could participate in, access the accommodation service or derive a substantial benefit from that service on being allocated a site other than 14. That is because they could make use of the camping ground and access all of the facilities in the camping ground.

I will deal with the claim of indirect discrimination first.
While I accept that the applicant's case has focussed on site 14 and it is apparent that, for a range of reasons, they would prefer that site, the particulars of complaint read as a whole indicate that the concern about the other sites is that they may not be suitable, given the nature of Mrs Rigby's disabilities.
The evidence produced may establish that there was a failure to take account of the needs of applicants for sites who have physical disabilities, and that any applicant for a site with a disability would be or is likely to be disadvantaged. The evidence may prove that site 14 is the only site which is safe and suitable for Mr and/or Mrs Rigby.
The respondent has not persuaded me that it can prove now that, in allocating a site which Mr & Mrs Rigby must accept, it acted reasonably under section 9(3) such that the complaint of indirect discrimination cannot succeed. I note again that there was no evidence from the respondent before me on which to base such a conclusion. I had only Counsel's statement from the bar table that the respondent must balance a number of factors when allocating sites. Given the early stage of the proceeding, it is not unusual for the material before the Tribunal to be incomplete, but it can make it more difficult to establish that a proceeding ought to be dismissed under section 75 of the VCAT Act.
I now turn to the allegation that the respondent failed to make reasonable adjustments and so breached section 45 of the EO Act.
At issue is whether the sites which were offered by the respondent instead of site 14 were sufficiently suitable for Mr & Mrs Rigby to take up the accommodation service. The applicant says that the other sites offered were not suitable and raise safety concerns and that only site 14 is suitable for his parents. The respondent says that there are other sites which are equally suitable and so the reasonable adjustment sought - being provision of site 14 - is not required in order that Mr & Mrs Rigby can participate in or access the accommodation service or derive a substantial benefit from that service.
These are clearly matters which can only be determined based on evidence about the nature of site 14 and the other sites, the location of those sites as compared to parking areas and other facilities, and other matters which may raise safety or health issues for Mr or Mrs Rigby. Evidence about the sites and the camping grounds' facilities would also be required to determine whether Mr & Mrs Rigby may be able to participate in or access the accommodation service or derive any substantial benefit from that service by being allocated another site.
While reference was made to the matters the respondent must balance in allocating sites, there is insufficient material before me to conclude now that it can prove that the matters raised in section 45(3) as to reasonableness would lead to a finding that the adjustment sought - the allocation of site 14 only - is not reasonable and so this complaint must fail.
For these reasons, the application cannot be dismissed under section 75 of the VCAT Act.

[1] The cases include the following: State Electricity Commission of Victoria v Rabel & Ors [1998] 1 VR 102; Norman v Australian Red Cross Society (1998) 14 VAR 243; Towie v State of Victoria [2002] VCAT 1395; Forrester v AIMS Corporation [2004] VSC 506; Naylor v Oakley Thompson & Co Pty Ltd & Ors [2008] VCAT 2074

Civil and Administrative Tribunal Act 1998

Opportunity Act 2010

Administrative Act 1998

Discrimination Act 1992

Rigby v Whitecliffs to Cameron Bight Foreshore (Human Rights) [2013] VCAT 1314 (14 March 2013)

Rigby v Whitecliffs to Cameron Bight Foreshore

At a glance

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Before

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Judgment (44 paragraphs)

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Legislation Cited (4)

Cases Cited (1)

Rigby v Whitecliffs to Cameron Bight Foreshore (Human Rights) [2013] VCAT 1314 (14 March 2013)