Legal principle as to dismissal or strike out of proceedings

1. The legal principles which govern consideration of the application may be shortly stated.[5]
   • (a) The respondent bears the onus of satisfying the tribunal that the application should be upheld. The burden to be discharged is a heavy one.
   • (b) The tribunal should exercise great care and caution before summarily terminating a proceeding. It is a serious step to do so.
   • (c) The application should be upheld where the tribunal is satisfied that the proceeding is obviously hopeless or obviously unsustainable in fact or in law, or where on no reasonable view could it justify relief, or where it is bound to fail. Frequently, satisfaction of one such head will entail satisfaction of all.

2. I have applied these principles to my determination of the application, as well as the following additional consideration. Whilst an application of this kind is strictly interlocutory in nature, indeed one that could be made at an early stage of a proceeding before any evidence is heard, I have the advantage of having heard and observed the applicant and been able to consider all the material upon which he relies in support of his complaint, and to have done that in the context of submissions made by both sides.

3. For present purposes, other than where there are internal inconsistencies and leaving aside the essential expression of opinion, I have put the applicant's evidence as to factual matters at its highest, notwithstanding that the respondent has made clear it rejects the complaint and disputes the applicant's critical contentions about its alleged discriminatory conduct.

The respondent company was formed in 1949. As is clear from the Memorandum of Association, the objects for which it was established were very broad.[6] They included the purchase of land and the development of properties for profit; the management of such properties, whether belonging to the company or not; and the collecting of rents and income and the supply '...to tenants and occupiers and others such advantages and services as the Company shall deem expedient.'

On 28 October 2001, the applicant purchased his flat in metropolitan Melbourne for $148,500. It was one of 43 units in a building complex originally owned by the company.

Ownership of a particular flat in the complex was affected by the purchase of a specified number of company shares allocated to that flat. Ownership of those shares conferred on the purchaser the right to exclusive occupancy of a particular flat in the complex and, for some shareholders, the exclusive use and occupation of a garage (of which there were seven in total). The applicant did not purchase a garage.

As is clear from the sale of shares agreement, the shares were sold subject to, among other matters, the provisions of the Memorandum and Articles of Association of the company; to the approval of the directors of the company to the transfer of the shares to the purchaser; and to the rules of the company (the rules).[7] The applicant also agreed to later execute an appropriate deed by which he agreed to be bound by the rules and other regulations of the company from time to time in force.[8]

The company had the obligation of maintaining the buildings and services at the property complex. The directors were entitled to fix a levy payable by the shareholders to enable the company to meet those expenses. Such moneys as collected were used in maintaining the exterior of the property and in its upkeep, including maintenance of the garden and all associated administration, secretarial and managerial expenses. The levy was paid quarterly and, it would appear that each shareholder paid about $700 annually.[9]

Generally, the company managed the property as would the committee of an owners corporation. A number of its directors, who also owned flats in the complex, represented it in that task.[10]

Before turning to the applicant's particular concerns, I will deal with the alleged attribute, which is the reason why the applicant says he was discriminated against. The applicant said he had suffered depression and anxiety all of his life. He said the condition was not well treated because he had had an aversion to the medical profession and the treatment it might offer him.

The applicant is now aged 51. He left school in 1976 after completing Form Five. He was then fully and productively employed, having completed an apprenticeship in fitting and turning. He worked in various jobs.

I received a report concerning the applicant from psychologist, Dr Eugene Aidman, dated 7 February 2000.[11] The psychologist stated that through objective psychological testing, he concluded that the applicant had suffered various degrees of depression for a number of years, possibly for up to fifteen years. He said 'The profile pattern suggests an alarmingly low level of adjustment, and a lack of ability to cope with current problems.' The applicant was described as emotionally fragile and dependent on external emotional support, which had been provided, in part, by his wife since they married in 2000. However, the prospect of separating from her, which was then on the cards, was likely to throw him back into a deep depression. Unfortunately, the marriage broke up in December 2002, when the applicant's wife left him and his mental health declined significantly.

In January 2003, the applicant commenced a course in community development at a TAFE but, due to his distress, gave up the course after only six months.[12]

Between 19 May and 10 July 2003, the applicant attended as an outpatient at Waiora Community Mental Health Service in Malvern, for treatment of his depressive symptoms.[13]

At about this time he was also attending a psychiatrist and a social worker at the Alfred Hospital. On 27 June 2003, a letter to the respondent company was drafted by those experts in support of the applicant being allowed to have his cat (Oscar) with him when he moved into his flat the following month. The cat was to assist in his treatment, part of the therapeutic approach. The letter stated that he had an emotional connection with his pet and a decision to prevent him from keeping his cat '... will have a detrimental and significant impact upon [SAF's] mental health causing him much trauma and distress.'[14] As it turned out however, this letter was never sent to the company, because, unknown to the applicant, he had not signed a consent form for its release.

The applicant also produced a letter from his GP dated 1 June 2006.[15] This indicated that he had been a patient at the medical centre since 1996. The GP stated that in 2003 the applicant had suffered a 'nervous breakdown' and had relapsed in March 2006 when he was placed on sickness benefits. The medical notes recorded that the applicant felt victimised by the company between February and June 2006; that he was on anti-depressant medication; and that he was suffering depression and anxiety in March 2007 when he was having further conflict with the company.[16]

The respondent did not concede that the applicant suffered from an impairment, although this point was not argued strongly. I am satisfied that the applicant did suffer from a mental or psychological disorder and hence, an impairment, at the time he says he was discriminated against.[17] This is the relevant 'attribute'.

1. The Articles of Association provided for the creation of the company rules. They stated:

The Directors may from time to time make rules and regulations for the use occupation and care of the flats, garages and common areas. The shareholders of the company shall be bound to comply with the rules and regulations in force from time to time and in the event of any breach of the said rules and regulations the Directors may at their option [either give notice to remedy the breach or remedy the breach themselves and charge the shareholder].[18]

1. In December 2001, following the signing of the sale contract, the applicant had a meeting with two directors of the company so he could execute the deed concerning the rules. He duly signed a copy of the rules, thereby undertaking that he would be bound by them and he acknowledged that 'Residents/shareholders accept that these Rules are for the benefit of all residents and [they are] to ensure harmony within [ZON Pty Ltd] and any breach by [a] resident is the responsibility of the registered shareholders'.[19]

2. The applicant was very upset about this process. He said that one of the directors told him 'Sign now or we will cancel the sale. We've got the power to do so.' He maintained that the directors were overbearing, inflammatory and oppressive and that he was stood over by them. He said he only signed and adopted the rules to avoid the cancelling of the contract and the loss of his deposit and the flat he had chosen. He determined he would have the argument with the company about this issue at a later time. The applicant fully understood the content of the rules - it was just the very nature of them, which made them 'undemocratic' and 'discriminatory'. In short, in his view, no owner/occupier should have had to comply with them and he was subjected to a serious breach of his human rights by being forced to do so.

3. The applicant said the directors told him that day that he was not allowed to have a cat in his flat. However, he did not say anything at this time about his mental condition or his history of depression or treatment, including his need for an 'assistance animal'. He specifically refrained from doing so because, as he explained, this all involved highly personal material and he believed people with depression were stigmatised if others came to know of their condition.

Before dealing with the applicant's specific complaints, I will provide a little background. The applicant settled the property on 28 January 2002, the shares were transferred on 13 March 2002 and the flat was leased out for 12 months from February 2002 to February 2003. He moved into the premises in July 2003, after he finished treatment for his depression at the Waiora Mental Health Centre.

From the time of occupation until December 2006, when he finally left his flat, the applicant had been engaged in significant disputes with the company concerning one or other of the following rules.[20] * (a) Pets: 'Flat occupiers are not permitted to keep any dog, cat or any other animal or bird in any flat or on the grounds.' * (b) Car parking: 'Except for those with [a] reserved space, car parking or standing within the grounds is prohibited. ... Vehicles such as bikes, motor bikes etc., are not to be left standing on the grounds at any time.' Any shareholder with rights to a car parking space which was not being used was required 'to make available or rent their space to a resident on the waiting list.' * (c) Pot plants: '... Pot plants are to be no more than 23 cms in diameter and in single row only.' * (d) Tenants: 'The shareholders will provide to estate agents acting on their behalf a set of these Rules and draw their attention to the need of their acknowledgment and acceptance by all prospective shareholders/residents.' * (e) Alterations: 'Written application must be lodged with the Directors for approval prior to any changes being made in flats.'

The disputes concerned the applicant keeping a cat in his flat on two occasions; keeping his motor bike and not a car in a garage owned by another person; having pot plants larger than permitted and not in a single file outside his flat; refusing to allow a tenant who came to live with him in 2006 to be interviewed by the directors so that she could subscribe to and sign the company rules; and cleaning a carpet which had become soiled because of alterations to his flat, which gave rise to concerns of the company about noise-proofing the exposed wooden floors.

The applicant's first cat was Oscar. He had had this pet since 1998 and it was very dear to him. As I have noted, he knew when he took up occupancy that under the rules he was not allowed to have the cat with him in the flat, but he took him in anyway. Regrettably, this pet was killed at the end of 2003 when it was run over by a car. Later, the applicant 'adopted' his tenant's cat, Orson, in July or August 2006, and also kept that one in the flat.

The applicant conceded in evidence some of his pot plants were larger than those permitted by the rules, although he maintained the contrary in his correspondence with the company secretary.[21] He said the proposed interviewing of his tenant by the directors in 2006 and the requirement that she adopt the rules was a breach of her privacy. Indeed, in the correspondence he said she was merely a 'guest' who was not bound by the rules. He rejected the respondent's concerns that he had a motor bike in a friend's garage and not a car. Finally, he was annoyed that directors queried his cleaning of the carpet which followed some alterations he had undertaken (apparently with approval).

The respondent made frequent requests that the applicant comply with the company rules concerning these matters. These requests were reduced to writing in 2006 when there was a deal of correspondence between the parties. It is unnecessary for me to set out any more of the detail of the various disputes. A substantial amount of the hearing time was taken up with the applicant's explanation of them. The applicant made clear his views that the company's interventions concerning all these issues were oppressive and unreasonable. As he put it in a letter, which he wrote to the company secretary in March 2006 '... the actions and attitudes taken by the directors have made me feel discriminated, intimidated, victimised, scrutinised, my privacy invaded, my basic rights denied.'[22]

The respondent's knowledge of the applicant's impairment

1. Of significance, the applicant did not inform the company about his depression until he wrote the letter I have mentioned in March 2006.

2. The applicant again referred to his depression in a letter to the company secretary dated 25 September 2006.[23] In that letter, he said he had supplied '...medical justification to pet ownership (ref Wiora [sic] Mental Health Clinic letter 2003).' This was a clear reference to the letter drafted by the psychiatrists at the Alfred Hospital, which I have already mentioned.[24] However, as I have explained, the Alfred letter was never sent. Clearly enough, the applicant believed it had been and that the company knew of his condition and the therapeutic need for him to have the cat in the flat. But he was mistaken in that belief.

3. The applicant's tenant also said in her affidavit there were several times (inferentially in 2006) when the applicant told the company secretary over the phone 'that he was suffering from depression and that he could not afford the solicitor costs and that this blatant victimisation had caused him a nervous breakdown'.[25] The applicant also said he had told the company secretary on the phone about his depression.

4. I accept that from March 2006, the respondent knew the applicant was suffering from a depressive illness or condition of some sort. However, knowledge of the existence of a relevant attribute does not mean discrimination occurred under the EO Act.

1. Ultimately, in October 2006, a letter of demand that the applicant comply with the rules was written by a solicitor on behalf of the respondent. The applicant briefed a solicitor to reply.[26] By November 2006, it seemed that all matters had been resolved when the applicant's solicitor agreed the applicant would comply with the particular rules in issue.

40. However, the applicant said in evidence that his solicitor had at that time acted without instructions. If that was so, the applicant did nothing to correct the position or to repudiate the solicitor's letter.[27] Indeed, he moved a number of his pot plants, as requested. Then he and his tenant left the flat on 4 December 2006 and the dispute with the respondent was effectively at an end.[28]

1. Under s 42(1) of the EO Act, a person must not discriminate against another person -
   • (a) by refusing to provide goods or services to the other person;
   • (b) in the terms on which goods or services are provided to the other person;
   • (c) by subjecting the other person to any other detriment in connection with the provision of goods or services to him or her.
2. The prohibition applies whether or not the goods and services are provided for payment. Although there are a number of exceptions specified in the EO Act, none are presently relevant.

3. The discrimination may be direct or indirect, but it must be based on a specified 'attribute'.[29] In this case, the attribute relied on by SAF is the 'impairment' consisting of a mental disorder, namely the long-standing depression suffered by him.

4. The applicant does not complain that the respondent has refused to provide goods and services; or done so on discriminatory terms. Essentially, he complains that in the course of managing the complex and applying the rules to the applicant, that is, in connection with the provision of those services, the respondent has subjected the applicant to a detriment, namely, by humiliating and denigrating him because of his impairment.

Was the company providing services to the applicant?

Thus the first question arising is whether the respondent company was, relevantly, providing services to the applicant? The respondent submitted it was not providing services in its oversight of the company rules and in its upkeep and maintenance of the building complex.

There can be no discrimination unless the company was engaged in, relevantly, the provision of services. The term 'services' is defined in the EO Act very broadly and inclusively. Without limiting the generality of the word, it includes the 'services of any profession, trade or business ...'.[30]

Paragraph 7D of the Articles of Association made clear that the levy was paid 'for the purpose of enabling the company to meet the expenses of the company incurred in connection with maintaining the building and services' at the property (emphasis supplied).[31] While the respondent conceded the company was providing 'services' in that sense, it was contended the oversight of the rules - which was the gravamen of the complaint - was not a service, and if it was, it was not a service provided to the applicant personally. I disagree on both counts.

In IW v City of Perth,[32] the High Court considered the operation of the Equal Opportunity Act 1984 (WA) (the WA Act) which, like the EO Act, contained an inclusive definition of the word 'services'. The Court made clear the word should be given its ordinary, wide meaning.[33] The Macquarie Dictionary relevantly defines the word to include 'an act of helpful activity'; 'the providing or a provider of some accommodation required by the public' such as telephone services or utilities and the like.[34] The Concise Oxford Dictionary (8th ed, 1990) defines a 'service' to include assistance or a benefit given to someone, or the act of helping or doing work for another or a community.[35]

The High Court also emphasised that in construing such a word, contained as it is within beneficial and remedial legislation such as the EO Act, a liberal construction which promotes the object of an anti-discrimination statute should be adopted.[36] As noted by Dawson and Gaudron JJ, 'In construing legislation designed to protect basic human rights and dignity, the courts "have a special responsibility to take account of and give effect to [its] purpose."'[37]

The objectives of the EO Act are: * (a) to promote recognition and acceptance of everyone's right to equality of opportunity; * (b) to eliminate, as far as possible, discrimination against people; * (c) to eliminate, as far as possible, sexual harassment; * (d) to provide redress for people who have been discriminated against or sexually harassed.[38] 7. I am bound to adopt a construction of the word 'services' that would promote the purpose or object underlying the EO Act in preference to a construction that would not promote that purpose or object.[39]

8. The company was in the business of managing the property complex for the benefit of all the shareholders, including the applicant. Levies were paid by owners (and perhaps occupiers) for this service, including by the applicant. It made no difference whether he considered the 'services' being provided were adverse to his interests or not.

9. The word 'services' is defined inclusively, hence it is to be given its ordinary and wide meaning and is to be construed in accordance with the objects of the EO Act. As the evidence stands, I am satisfied that the company was engaged in the provision of goods to the applicant in its superintendence of the company rules and management of the complex.

The final question is whether there was any relevant discrimination against the applicant? I am satisfied there was not.

Discrimination may be either direct or indirect. There is here, no evidence of direct discrimination in the sense that the respondent has treated or proposed to treat the applicant 'less favourably than the person treats or would treat someone without that attribute, or without a different attribute, in the same or similar circumstances.'[40]

The applicant relies on the presence of indirect discrimination, which can occur if a person imposes, or proposes to impose, a requirement, condition or practice that someone with an attribute does not or cannot comply with; and that a higher proportion of people without that attribute, or with a different attribute, do or can comply with; and that is not reasonable.[41]

Here, the issue concerns the respondent's requirement that the applicant comply with the rules. Whether a requirement is reasonable depends on the relevant circumstances of the case, including the consequences of failing to comply with the requirement; the cost of alternative requirements; and the financial circumstances of the person imposing, or proposing to impose the requirement.[42] In determining whether a person indirectly discriminates, it is irrelevant whether or not that person is aware of the discrimination,[43] so too, is any motive that that person may have.[44]

Discrimination can occur by subjecting a person to any detriment 'in connection with the provision of goods or services to him'. A detriment can include humiliation and denigration.[45] For present purposes, I accept the applicant was humiliated and denigrated in the course of his dispute with the respondent. But, relevantly, any discrimination must be of the kind set out in section 9 of the EO Act.

The respondent correctly accepts there was a 'requirement' placed upon the applicant by the company to comply with the company rules. It also correctly noted that there was no evidence the applicant could not comply with each of the requirements made. Indeed, ultimately he did so in late 2006 by moving his pots, even though he was not happy about that. Before then, he had refrained from having a cat in his flat from 2003 (after the first pet died) until 2006, because he knew that would be contrary to the company rules.

Generally speaking, other shareholders, whether with the same or a different attribute, were compelled to comply with the company rules. The rules were there for the good governance of the property and to assist the shareholders to exercise quiet enjoyment of their flats, the walkways and surrounding facilities, including the garden. In my view, the respondent did no more than ask the applicant to comply with the company rules, which he had knowingly signed up to at the time of purchasing his flat. None of the requests were causally linked to his attribute and it was reasonable that he should be expected as one of the shareholders to comply with the company rules.

I will assume that the respondent was willing to allow other owner/occupiers to have larger pots, or pets contrary to the rules. Such an attitude may have discriminated against the applicant, but not because he suffered from his mental condition. That was, at worst, a failing to act fairly towards the applicant - and other owner/occupiers for that matter - in the application of the rules.

It is to be recalled that in 2001, the applicant specifically declined to inform the company of his depressive condition. Given that he (mistakenly) believed the letter from the Alfred psychiatrists had in fact been sent in mid 2003 when he moved into the flat, it would seem by that time he had changed his mind about not telling the respondent of the existence of his condition. Nevertheless, it was not until March 2006 that he first said anything directly about his condition to the respondent. In addition, at no time did the applicant specifically apply to the company to keep either cat as part of any therapeutic treatment for his depressive condition.

In his correspondence and discussions, the applicant never suggested to the company that any of the disputes he was having were, on the respondent's part, causally linked to his depression. Nor was it ever suggested in the solicitor's correspondence of 2006 concerning compliance with the rules, or by the applicant's tenant in her affidavit, that any of the respondent's unacceptable conduct was causally linked to the relevant attribute. The highest it is put by the tenant is that on one occasion in 2006, one of the directors laughed, when the tenant said the applicant was depressed and that she 'seemed to take pleasure in the bullying of such ...'.[46] Assuming the truth of this statement, it does not follow the respondent engaged in relevant discrimination. In all the circumstances, such an attitude demonstrates an uncaring arrogance on the part of an individual director, not relevant discrimination by the respondent.

Most significantly, the applicant said that after he had informed the company of his mental illness in March 2006, its conduct and victimisation of him continued in exactly the same way, as had been the case previously. That suggests to me the respondent's requests to comply with the rules were unrelated to the attribute and explained in other ways.

Whilst the applicant said in evidence, he had been singled out and discriminated against because of his mental illness, in the next breath he conceded that the company was simply requesting that he comply with the rules, which everybody in the complex was bound to do. Whilst he maintained the company had singled him out for victimisation, he agreed in his evidence this was not necessarily because of any mental illness suffered by him. He said he could only speculate that the respondent's requests to move his pot plants had something to do with his mental illness.

In truth, the applicant's principal concern was that the rules were applied unequally, as between the various owner/occupiers. He said others were allowed by the respondent to breach the rules. He produced a photo of an (unidentified) owner/occupier's larger pots/plants.[47] He maintained some other occupier had a pet. The applicant's tenant said in her affidavit that several flats had plants on walkways, which were larger than those permitted by the rules, and that an elderly lady had a cat, to which the respondent turned a 'blind eye'.[48] The company denied in the correspondence that any others were in breach of the rules.[49] However, I note that on 2 November 2006, the respondent issued a general notice that pots were to be 'no more than 23 cms from [a flat] wall and contains (sic) small plants only'.[50]

Most significantly, the applicant was at pains to point out how the anxiety of all these disputes worsened, if not caused, his mental instability and depression. In his letter to the company secretary dated March 2006, he said '...I had been suffering severe depression as a ramification of the ongoing victimisation by the directors over my motorcycle...' (emphasis supplied).[51] In another letter to the company secretary of 25 September 2006, the applicant said:

I have already supplied a medical justification to pet ownership (ref Wiora Mental Health Clinic letter 2003). Suffering chronic depression which is well documented I can prove in court that the so called directors have given me not one but two server [sic] nervous breakdowns through their belief they have the right to interfere in my life eg no motorcycles, no pets, intimidation, extorsion [sic] - sign now or we will cancel the sale/ your shares will be sold, victimisation- not giving me the car park because I bought a motorcycle/ removal of plants which had been there for up to three years/ following builders to my door/ calling me to account for myself before a board for scrubbing my carpets, invasions of privacy- making me explain myself six times for my renovations/ demanding who stays with me be brought before the so called board, deformation [sic] of character- brought before the board to explain myself, informing the secretary that I have been told five times to move my plants when I have not had even one complaint. Every time I try to get back on my feet these so called directors interfere with my life, this is the third time. (emphasis supplied) [52]

These observations do not suggest the applicant was subjected to discrimination of the relevant kind.

1. Harking back to his objection to being forced to sign and adopt the rules in 2003, and the very existence of them, the applicant complained in the same September letter:

In conclusion may I say that I have tried to get along with everyone and just mind my own business but it appears to me certain people think they have the right to discriminate, intimidate, victimise and invade the privacy of individuals because they have constructed a system to do so

1. Whilst the worsening of the depression was an important point and a most regrettable consequence of the dispute, in my view, the evidence demonstrates that the 'discrimination' complained of by the applicant was the attempt by the respondent to enforce the rules and the way this was done, not that the requests were made of him to comply with the rules because of his impairment.

2. I have no doubt that the applicant has suffered tremendous anxiety and tension in his dealings with the respondent, and that he believes he ultimately had no choice but to leave his flat at the end of 2006. It is regrettable that he has suffered in this way, but in my opinion, the evidence does not show that he has been subjected to direct or indirect discrimination by the respondent under the EO Act. The fact that he believes the enforcement of the company rules was oppressive to him as a minority shareholder and 'undemocratic' does not mean that any relevant discrimination has occurred.

3. The applicant was obliged to comply with the rules because he had agreed to do so and this was the reasonable requirement of the company. The detriment of humiliation and denigration did occur to the applicant in connection with the provision of the services by the company of managing the complex and enforcing the rules, but that detriment was wholly unrelated and not causally connected to his impairment. Accordingly, I could not be satisfied there has been any indirect indiscrimination.

1. I am satisfied the respondent has discharged the heavy burden which lies upon it in the present application. I am satisfied the proceeding is obviously hopeless and unsustainable in fact and in law. There is no causal link between the treatment of the applicant and his particular attribute. In those circumstances, his complaint could never justify relief and the proceeding is bound to fail. The complaint cannot be cured by amendment.

2. Hence, I am satisfied that the applicant's proceeding is misconceived or lacking in substance, and that I should dismiss it under s 75(1)(a) of the VCAT Act.

3. In these circumstances, it is unnecessary for me to determine whether the proceeding is otherwise an abuse of process by reason of the very lengthy delay which elapsed before the applicant made his complaint to the commission.

4. I should also note that the concept of 'victimisation' has a special meaning under s 97 of the EO Act, which is not applicable to the complaint made by the applicant.[54]

1. That the name of the applicant in this proceeding be anonymised and he be referred to as 'SAF', and the name of the respondent in this proceeding be anonymised and it be referred to as 'ZON Pty Ltd'. 2. Pursuant to s 75(1) of the Victorian Civil and Administrative Tribunal Act 1998, the proceeding is dismissed.

[1] The statement of complaint is at exhibit A.

[2] Section 136.

[3] The application is to be distinguished from one made under s 109(1) of the EO Act which provides for the striking out of a complaint or part of it, but not the power to summarily dismiss a proceeding.

[4] The other case is reported as SAF v State of Victoria (State Revenue Office) (Anti-discrimination) [2010] VCAT (No A212/2010).

[5] The principles have been discussed in many cases, but see particularly: State Electricity Commission of Victoria v Rabel & Ors [1998] 1 VR 102; and the decisions of VCAT - Norman v Australian Red Cross Society (1998) 14 VAR 243; Towie v State of Victoria [2002] VCAT 1395; and Naylor v Oakley Thompson & Co Pty Ltd & Ors [2008] VCAT 2074.

[9] See the company's profit and loss statement for the year ended 30 June 2000 and its budget for the year ended June 2001, which form part of exhibit C.

[10] Two such directors attended the VCAT proceeding.

[17] Section 6(b) EO Act. 'Impairment' is defined in s 4 to include (d) a 'malfunction of a part of the body, including - (i) a mental or psychological disease or disorder....'

[18] Clause 7F of the Articles of Association, exhibit B.

[20] The detail is more fully set out in exhibits A and G.

[21] Letter dated 11 August 2006 (exhibit H).

[27] It was not until 2010 that the applicant made a complaint against the solicitor to the Legal Services Commissioner.

[28] Thereafter, the flat was leased to others.

[30] Section 4, EO Act, see item (e) of the definition of 'services'.

[32] [1997] HCA 30; (1996) 191 CLR 1.

[33] Brennan CJ and McHugh J at 11, Dawson and Gaudron JJ at 23, Toohey J at 27, Gummow J at 41-42 and Kirby J at 69-70.

[34] IW, per Brennan CJ and McHugh J at 11.

[36] Brennan CJ and McHugh J at 12, Dawson and Gaudron JJ at 22-23, Toohey J at 26-27, Gummow J at 35-36 and Kirby J at 58-59.

[39] Section 35(a) of the Interpretation of Legislation Act 1984.

[40] Section 8(1), EO Act.

[49] Respondent's letter to the applicant dated 20 September 2006 (exhibit H).

[50] Exhibit N. This was not an accurate statement of the rule, see [30(c)] above.

[54] The applicant did not contest this point and explained the word 'victimisation' was used by an officer from the commission who had assisted him to draft his complaint.