1. The City of Yarra and Mr Simic applied for orders striking out or dismissing paragraphs 5 to 71 of Ms Stewart's particulars of claim under ss 75, 76 and 78 and clause 18 of Schedule 1[2] of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act). In summary, the respondents contend that paragraphs 5 to 71 of Ms Stewart's particulars of claim should be struck out or dismissed because:
   • (a) Clause 18 of Schedule 1 of the VCAT Act evinces a legislative intention that claims under the EO Act should be made within one year of the conduct complained of and paragraphs 5 to 71 of Ms Stewart's particulars of claim relate to alleged conduct that took place more than one year before she lodged her application with VCAT on 17 December 2015 (the old claims).
   • (b) Ms Stewart's delay in bringing the old claims means that to prosecute them now amounts to an abuse of process.
   • (c) It is also an abuse of process to allow Ms Stewart to prosecute a claim that relates to alleged conduct which she complained about in 2000 and which was resolved at mediation.
   • (d) The claims that relate to alleged conduct that took place more than six years before Ms Stewart lodged her application at VCAT are barred under section 5 of the Limitation of Actions Act 1958.
   • (e) The Tribunal does not have jurisdiction to hear and determine Ms Stewart's claims that the respondents breached the Fair Work Act 2009 and the City of Yarra Enterprise Agreement.
2. At the hearing, Mr Millar, counsel for Ms Stewart, conceded that VCAT has no jurisdiction to hear claims in relation to the Fair Work Act and the City of Yarra Enterprise Agreement and agreed that paragraphs 47, 56, 64 and 80 of Ms Stewart's particulars of claim should be deleted. He otherwise opposed the application on Ms Stewart's behalf.

1. Ms Stewart's particulars of claim can be divided into ten main allegations of fact and law:
   • (a) That Mr Simic sexually harassed Ms Stewart when he rubbed the inside of her hand in a sexual manner while shaking her hand in late 2000 (paragraphs 5 to 10 of the particulars of claim).
   • (b) That Mr Simic sexually harassed Ms Stewart by making comments of a sexual nature about Ms Stewart to other employees, by asking other employees for Ms Stewart's home address and by asking other employees to tell Ms Stewart what he would like to do with her if he could get her alone between 2000 and 2006. This culminated in Ms Stewart making a formal complaint against Mr Simic after he informed her he had been outside her home. The City of Yarra then victimise Ms Stewart by conducting an investigation, clearing Mr Simic of any wrongdoing and sending Ms Stewart two letters dated 13 December 2006 and 21 December 2006 stating that if any further matters in relation to Mr Simic were brought to its attention, Ms Stewart would be removed from her current position due to skill base (paragraphs 11 to 21 of the particulars of claim).
   • (c) That Mr Simic continued to sexually harassed Ms Stewart because following a barbecue in December 2010, employees of the City of Yarra told Ms Stewart they had had concerns about her safety due to comments made by Mr Simic. The City of Yarra then victimised Ms Stewart by changing her place of work and taking other steps to protect her, conducting a second investigation into Mr Simic's actions and putting other measures into place to prevent Mr Simic from having contact with her before she returned to her normal workplace (paragraphs 22 to 32 and 39 to 40 of the particulars of claim).
   • (d) That Mr Simic continued to sexually harass Ms Stewart by waiting for her after work and trying to follow her home. After informing the City of Yarra employees of this in October 2010, the City of Yarra then victimised Ms Stewart by telling her that it was not responsible for her safety after she left work and then stopping her from parking in the depot for safety reasons because other employees had complained about this (paragraphs 33 and 39 to 40 of the particulars of claim).
   • (e) That in November 2012 the City of Yarra victimised Ms Stewart by refusing to change Ms Stewart's work hours despite a request to do so from another employee who could no longer put up with Mr Simic leering at Ms Stewart when she was leaving at night or in the yard. This was followed by Mr Simic falsely accusing Ms Stewart of swearing at him. The City of Yarra then agreed on 22 November 2012 to change Ms Stewart's work hours at her request to prevent her from having any contact with Mr Simic. Ms Stewart's hours were again changed on 27 November 2012 at the request of the City of Yarra to all better control Mr Simic (paragraphs 34 to 38 and 39 to 40 of the particulars of claim).
   • (f) That in March 2013, the City of Yarra victimised Ms Stewart by trying to change her work hours and informing her that she must seek its prior approval before doing overtime. The City of Yarra subsequently agreed not to change Ms Stewart's work hours following a meeting with Ms Stewart and her union representative (paragraphs 41 to 46 and 48 of the particulars of claim).
   • (g) That in January 2014, Mr Simic sexually harassed Ms Stewart by watching her walk up a hill whilst parked in the driveway of the depot and then looking at her when he drove past Ms Stewart. The City of Yarra then victimised Ms Stewart by attempting to change her work hours (paragraphs 49 to 55 of the particulars of claim).
   • (h) That Mr Simic continued to sexually harass Ms Stewart by stalking her before and after work on a daily basis. The City of Yarra then victimised Ms Stewart by not taking any action against Mr Simic after Ms Stewart informed them of his actions in a meeting on 2 October 2014. As a result, Ms Stewart took a photo of Mr Simic's stalking her so she could provide the City of Yarra with evidence in support of her allegations. The City of Yarra further victimised Ms Stewart by standing her down during a meeting on 13 November 2014 for an investigation to take place into her conduct as a result of Mr Simic complaining that she had breached his human rights, failing to investigate her complaints that Mr Simic had been stalking her and instead making her position redundant (paragraphs 57 to 63 of the particulars of claim).
   • (i) That the City of Yarra discriminated against Ms Stewart (presumably on the basis of her sex) by failing to provide her with training opportunities offered to male employees, which Ms Stewart raised with employees of the City of Yarra during the meeting on 13 November 2014 (paragraphs 65 to 71 of the particulars of claim).
   • (j) That in January 2015 the City of Yarra discriminated against Ms Stewart when it made her position redundant because she had not previously been provided with additional training due to her medical condition (presumably her anxiety and depression), which is a disability under the EO Act, which meant that she had not acquired the necessary skills to obtain a more senior position within the City of Yarra (paragraphs 72 to 79 and 71 of the particulars of claim).
2. Ms Stewart also alleges that the City of Yarra is vicariously liable for Mr Simic's conduct referred to in paragraphs 10 (a) to (d), (g) and (h) above.
3. The legislation in force at the time of the alleged conduct referred to in paragraphs (a) to (d) above was the Equal Opportunity Act 1995 (the EO Act 1995). The EO Act 1995 was repealed on 1 August 2011 by s 191 of the EO Act, which also commenced on that date.
4. However, sub-section 194(2) of the EO Act provides:

(2) A person may make an application to the Tribunal under Division 2 of Part 8 about an alleged contravention of a provision of Part 3, 5 or 6 of the old Act that occurred before the commencement day if -

(a) the person did not lodge a complaint under section 105 of the old Act about the alleged contravention before the commencement day; and

(b) the alleged contravention, if proven, would have also been a contravention of a provision of Part 4, 6 or 7 of this Act, if this Act had been in force when the alleged contravention occurred.

1. Accordingly, if Ms Stewart can show the conduct she complains of in paragraphs (a) to (d) above contravened a provision of Part 3, 5 or 6 of the EO Act 1995 and Part 4, 6 or 7 of the EO Act, she can make a claim about that conduct to VCAT under the EO Act.
2. The only allegations that fall outside of the respondents' application are the allegations in paragraph (h) in so far as they relate to Ms Stewart's redundancy and the allegations in paragraph (j), which also relate to Ms Stewart's redundancy, as Ms Stewart was made redundant less than 12 months before she made her application to VCAT.

MS STEWART'S EXPLANATION FOR THE DELAY IN BRINGING THIS APPLICATION

1. Ms Stewart gave the following evidence at the hearing to explain why she did not make an application to VCAT until 17 December 2015.
2. Ms Stewart made her complaint to the Victorian Equal Opportunity and Human Rights Commission within six weeks of being made redundant on 9 July 2015.
3. Ms Stewart did not make a complaint to the Victorian Equal Opportunity and Human Rights Commission or make an application to VCAT during the time she worked for the City of Yarra at the depot because she was made to feel that she would lose her job if she pursued her complaint against Mr Simic in 2006.
4. Ms Stewart believed this because she was given a letter from the City of Yarra in 2006 that stated that if she made any further complaints about Mr Simic, she would be removed from her position due to her skill set but that he be able to stay in his.
5. Ms Stewart provided the Tribunal with a letter from the City of Yarra dated 21 December 2006. The letter refers to a meeting that was held on 5 December 2006, which was attended by Ms Stewart, Michael Cains, Kim O'Connor, Peter McCauley (presumably employees of the City of Yarra), Craig Stevens, Manager Infrastructure and Leanne Sumpter, an ASU representative. The letter noted that the independent report requested by Ms Stewart on the ASU recommended Ms Stewart not return to work at the Collingwood Depot and resume work at a different location, that Ms Stewart had been advised that the working arrangements in relation to access to the office area could not be altered and despite this Ms Stewart had chosen to return to the Collingwood Depot. At the end of the letter, the City of Yarra states:

In respect of your decision to return to the Collingwood Depot, please take special note of the following:

That is you chose to return to Collingwood Depot despite the recommendations in the Independent Assessment report, the discussions with Leanne Sumpter (ASU) and the City of Yarra, that in the future should you again notify Council that you are experiencing distress while working at the Collingwood Depot, that such matters will be dealt with through the normal processes.

1. Ms Stewart was cross-examined about her evidence by Mr Solomon-Bridge, counsel for the respondents. Ms Stewart gave evidence that she was a union member and had sought advice from the union in 2006. She said the union did not advise her to make a complaint to VCAT but did advise her that Mr Simic's behaviour amounted to sexual harassment. She said the union had told her that her job would be in jeopardy if she made a complaint.
2. When asked why she had not made a complaint to VCAT about the hand shaking incident in 2000, Ms Stewart said she was made to feel she would lose her job. She added that her job provided the main income to her family and for this reason she did make a claim until she had been made redundant, as advised by the union when she was stood down for alleging that Mr Simic had stalked her in his car. Ms Stewart explained that she had waited eight months to bring her claim after being stood down because she was hoping to hold her job. Ms Stewart maintained that the letter from the City of Yarra stated that she would be removed from her position. When it was put to Ms Stewart by Mr Solomon-Bridge that the letter merely proposed moving her to a different location, Ms Stewart answered that, to her, moving location was the same as losing her job because she would be losing her second home.
3. When Mr Solomon-Bridge put to Ms Stewart that nothing in the letter supported her evidence that her job with the City of Yarra was under threat, Ms Stewart said that she had provided the Tribunal with the wrong letter.
4. During re-examination, Ms Stewart provided the Tribunal with a letter from the City of Yarra dated 13 December 2006. At the end of the letter, the City of Yarra states:

In respect of your decision to return to the Collingwood Depot, please take special note of the following:

That is you chose to return to Collingwood Depot despite the recommendations in the Independent Assessment report, the discussions with Leanne Sumpter (ASU) and the City of Yarra, that in the future should you again notify Council that you are experiencing distress while working at the Collingwood Depot, that you will accept relocation to a location other than the Collingwood Depot as soon Council can arrange it.

1. Ms Stewart gave evidence that she would not sign the first letter because it removed her rights. She maintained that the letter stated that if she made a complaint against Mr Simic, she would be seen as the cause of the problem. She said that the letter made her feel that she was always the problem and could not complain. Ms Stewart also said that Wendy Welgus, the City of Yarra OH&S and RTW Co-ordinator, told her that if she took out an intervention order against Mr Simic, she would be removed from her position at the Collingwood depot if they could find one.
2. In further cross-examination, Ms Stewart agreed that Ms Welgus had not said anything about what would happen if she made a sexual harassment claim. Ms Stewart maintained that she was made to feel that way because of the letter from the City of Yarra, which stated it. She gave evidence that the second letter from the City of Yarra was a lie and that they were still trying to relocate her at this time. Ms Stewart also denied that the fact she had made WorkCover claims in 2006, 2011 and 2014 was inconsistent with her evidence that she was afraid to make a complaint about the sexual harassment because it would lead to her relocation or dismissal. Ms Stewart said that this was because coming to VCAT was different. She also said that she made the WorkCover claim under the direction of her doctor, who told her that she was covered.

SECTION 76 AND CLAUSE 18 OF SCHEDULE 1 TO THE VCAT ACT

1. Schedule 1 to the VCAT Act varies Parts 3 and 4 of the VCAT Act for proceedings brought under various acts.
2. Part 7 of Schedule 1 relates to proceedings brought under the EO Act. Relevantly, clause 18 states:

18. Summary dismissal of application more than 12 months old

The Tribunal may make an order under section 76 summarily dismissing an application under the Equal Opportunity Act 2010 in respect of an alleged contravention of Part 4, 6 or 7 of that Act if the alleged contravention occurred more than 12 months before the application was made.

(1) At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding for want of prosecution....

The respondents' contentions in relation to section 76 and clause 18 of Schedule 1 of the VCAT Act

1. The respondents contended that clause 18 evinces a legislative policy that applicants, in the ordinary course, are expected to bring applications to VCAT under the EO Act within 12 months of the conduct occurring. Mr Solomon-Bridge also contended on behalf of the respondents at the hearing that clause 18 applies to all claims made under the EO Act, including historical claims made by virtue of the provisions of s 194(2) of the EO Act.
2. Mr Solomon-Bridge relied on the decision of Senior Member Proctor in Kramersh v IPD Education Limited[3], who dismissed the applicant's application under s 76 of the VCAT Act in so far as the applicant sought reinstatement as an employee of the respondent. In that case, the applicant had waited 18 months after his employment was terminated before he lodged his application.
3. Mr Solomon-Bridge contended that a 12 month time limit appropriately balances a respondent's need for expedition and the needs of the applicant.
4. More generally, the respondents also contended that the Tribunal should exercise its discretion to strike out or dismissed paragraphs 5 to 71 of Ms Stewarts particulars of claim because:
   • (a) The delay is making the claim to VCAT is inordinate, unreasonable and inexcusable, especially as regards the more "historical" complaints.
   • (b) The nature of Ms Stewart's proceeding in the Tribunal is such that it will depend heavily on viva voce evidence and the credit of witnesses, especially as regards the occurrence or otherwise of various instances of alleged sexual harassment (for instance, whether Mr Simic rubbed Ms Stewart's hand in a sexual manner or parked near her and watched her walk up a hill).
   • (c) VCAT has previously noted:[4]

While one of the objectives of the [former] Equal Opportunity Act is to provide redress for victims of discrimination and those making complaints should not be unfairly shut out from pursuing a claim, this must be balanced against matters such as the need for finality and the unfairness to a respondent which is caused by lengthy uncertainty as to whether or not a claim will be brought.

(d) The respondents have not been responsible for the delay in any way

(e) The prejudice to the respondents is set out in the affidavit of Lauren Drummond affirmed 19 July 2016 (Ms Drummond's affidavit). It includes the loss of critical witnesses who have retired from the City of Yarra since the events in question.[5]

(f) The delay has affected the quality of justice. It is apparent from Ms Drummond's affidavit that there are few contemporaneous documents available. The deterioration of the remaining witnesses' memories may be inferred.[6]

(g) The public interest favours dismissal or striking out. It is not in the public interest for persons to be confronted many years after the event with serious allegations which, if proved, will produce considerable consequences for them.

1. Mr Solomon-Bridge also contended that Ms Stewart's explanation for why she did not make her claim until 17 December 2015 was not credible and that the Tribunal should find that she did not genuinely believe she would lose her job if she made an application to VCAT. Mr Solomon-Bridge relied on the fact that the City of Yarra had withdrawn the letter dated 13 December 2006, that Ms Stewart was represented by her union at this time and that she made three WorkCover complaints between 2006 and 2014. Mr Solomon-Bridge contended that the City of Yarra's letter dated 21 December 2006 does not bear out Ms Stewart's subjective belief and that even if the Tribunal accepts her explanation for the delay in making her claim, her actions were not reasonable because her subjective belief was fanciful. Mr Solomon-Bridge contended there was no cogent, let alone reasonable explanation for the delay and that it is not reasonable for a person who believes they have been sexually harassed or discriminated against in the workplace to do nothing until they are dismissed or resign, no matter how much time elapses.
2. The respondents relied on the Tribunal's decision in Burrows v State of Victoria, where the Tribunal observed:[7]

The Department next submits that because of the delay in lodging the complaint, it would be an abuse of process for it to proceed further. In determining whether delay in bringing a claim makes it an abuse of process, the primary consideration is the interests of justice. Relevant factors to be considered include whether the delay is inordinate or unreasonable and inexcusable, any explanation for the delay and the adequacy of that explanation, the nature of the proceeding, whether the respondent was responsible for the delay, any prejudice caused to the respondent if the proceeding continued and the effect of the delay on the quality of justice, that is, the ability to conduct a fair hearing of the proceeding (for example, whether significant documents have now been lost or destroyed, whether the witnesses' memories are so impaired that the quality of evidence will be compromised, whether witnesses have died and their importance is such that the quality of evidence is compromised); and the public interest. These factors must be balanced against each other and none is determinative.

1. In Burrows, the Tribunal summarily dismissed various claims brought by an applicant under the EO Act 1995, which related to conduct which had occurred 6 ½ years to 12 years before the lodging of the complaint, on account of the unreasonable delay in bringing them.
2. Whilst initially these submissions were made in support of the respondents' application for orders striking out or dismissing paragraphs 5 - 71 of Ms Stewart's particulars of claim under s. 75 of the VCAT Act on the basis that the delay amounts to abuse of process and the Tribunal's observations in Burrows were made in relation to s 75, it my view these submissions are also relevant to whether the Tribunal should exercise its discretion to make these orders under s 76 and clause 18 of Schedule 1 of the VCAT Act due to Ms Stewart's delay in making her application.

Ms Stewart's contentions in relation to section 76 and clause 18 of Schedule 1 of the VCAT Act

1. Mr Millar contended on Ms Stewart's behalf that paragraphs 5 - 71 of her particulars of claim should not be struck out or dismissed under s 76 of the VCAT Act because:
   • (a) Clause 18 does not impose a de facto 12 month time limit to make claims under the EO Act.
   • (b) There is no evidence of want of prosecution of Ms Stewart's application.
   • (c) Clause 18 does not apply to alleged contraventions of the EO Act 1995.
2. Mr Millar relied on the decision of Senior Member Proctor in Kramersh v IDP Education Limited[8] in which he stated:

I disagree clause 18 imposes a de facto 12 month time limit. It gives VCAT discretion to prevent injustice due to delay, in terms of application[s] being pursued in whole or in part.[9]

1. Mr Millar contended that imposing a 12 month time limit on claims made under the EO Act would be a very serious step because it would drastically reduce the ability of applicants to make claims. To do so, clear words in the legislation are needed. In any event, given that clause 18 says VCAT "may" make an order under section 76, claims made in relation to conduct that occurred more than 12 months before the application was lodged are not precluded by clause 18.
2. Mr Millar also relied on the decision of Senior Member Megay in Richardson v Monash University.[10] Mr Millar contended that Senior Member Megay considered and rejected the respondents' argument when she stated:

It is clear that there has been a drafting mishap in relation to the amendment in the Schedule to the Act. I think it most unlikely that this was meant to alter the meaning of what constitutes 'want of prosecution' to mean a delay in bringing an action as opposed to commencing one and failing to continue to prosecute it. The matter is of course complicated by the fact that Clause 18.1 is part of the substantive legislation and there does not seem to be any reason why the discretionary power reposed in it should be read down. In any event it requires contraventions of the 2010 Act and properly pleaded, this case concerns alleged contraventions of the 1995 Act...[11]

1. Mr Millar contended that given that Ms Stewart relies on allegations which, if proved would amount to contraventions of the EO Act 1995 competently brought under the EO Act and it is arguable that clause 18 does not apply to such claims, these claims should be allowed to go to hearing.
2. In response to the respondents' submissions about Ms Stewart having delayed making the application. Mr Millar contended on Ms Stewart's behalf that the Tribunal should not exercise its discretion to strike out or dismiss paragraphs 5 - 71 of Ms Stewart's particulars of claim because:
   • (a) The substantive allegations of sexual harassment are against Mr Simic and there is no reason why he should not answer these allegations. Mr Simic has not gone on affidavit to say he is prejudiced in any way by the timing of these allegations and it is not even clear from the Ms Drummond's affidavit whether Mr Simic's recollection has been sought.
   • (b) The sexual harassment allegations against the City of Yarra are simply of vicarious liability. Whether vicarious liability attaches to those acts depends on the evidence that the City of Yarra brings concerning the precautions that they put in place to prevent sexual harassment occurring, presumably with reference to matters such as policies and training provided. Just because the City of Yarra may have to speak with people who are no longer their employees is no reason why these matters should not proceed to hearing.
   • (c) Further, if the City of Yarra wishes to defend the matter on the basis of the exception available under s 110 of the EO Act, then it is a matter for the City of Yarra to produce that evidence. There is nothing in the material before the Tribunal suggesting any hardship in obtaining that evidence, if it chooses to run that argument and there is no reason to strike out paragraphs 5 - 71 of Ms Stewart's particulars of claim on this basis.
   • (d) The allegations of discrimination, are straightforward and recent (February 2014) and there is no reason why the allegations should not proceed to hearing.
3. In relation to Ms Stewart's evidence about why she delayed making her claim to VCAT, Mr Millar contended that her explanation was on all fours with the facts alleged in her particulars of claim and that after the redundancy took effect, Ms Stewart could make a claim to VCAT without fear of retribution. He also pointed out that her evidence that she had made a claim to the Victorian Equal Opportunity and Human Rights Commission within six weeks of being made redundant was unchallenged and that this was not the action of an employee sitting on her hands to the prejudice of the respondents. Mr Millar contended that Ms Stewart's reasons for bringing the claim so late in the piece were legitimate and entirely understandable and in doing so have caused no significant prejudice to the respondents. In addition, Mr Millar contended that the City of Yarra was responsible for the delay because it had made "shots across the bow" that indicated if Ms Stewart pursued matters against Mr Simic, prejudice may result. Mr Miller submitted that the City of Yarra cannot profit from these actions. He concluded by contending that Ms Stewart had given a crystal clear explanation for why she acted when she did, that she had a well-founded and understandable reluctance to pursue matters and well-founded and understandable concerns about what might happen if she did.
4. However, Mr Millar conceded that the actual wording of the City of Yarra's letter dated 21 December 2006 is less significant than Ms Stewart's perception of what the letter conveys.

1. Mr Solomon-Bridge disagreed with the Tribunal's interpretation of the effect of clause 18 as described in Richardson. Mr Solomon-Bridge contended that the reference to section 76 of the VCAT Act in Clause 18 must be read to be a reference to a delay in bringing an action. He also contended that it would be perverse to interpret clause 18 in a manner that allows VCAT to dismiss "old claims" under the EO Act but not "really old claims" under the EO Act 1995.

What powers does VCAT have under section 76 and clause 18 of Schedule 1 of the VCAT Act?

1. In my view, Clause 18 modifies s 76 of the VCAT Act[12] to give VCAT the power to summarily dismiss claims made under the EO Act "if the alleged contravention occurred more than 12 months before the application was made" without having to make any findings in relation to want of prosecution. Parliament clearly intended to give VCAT the power under clause 18 of the Schedule 1 of the VCAT Act to strike out or dismiss claims made under the EO Act which are more than 12 months old and it nominated s 76 of the VCAT Act to be the means by which such orders are made. The wording of clause 18 is unequivocal.
2. I also consider clause 18 applies to all claims made under the EO Act, including historical claims made by virtue of the provisions of s 194(2) of the EO Act. The enabling act for historical claims is the EO Act, not the EO Act 1995, which has been repealed. Any orders made by VCAT in favour of an applicant are made under the EO Act. There is nothing in the wording of clause 18 to suggest VCAT's power to strike out or dismiss claims made under the EO Act which are more than 12 months old is limited in the manner contended by Ms Stewart.
3. In any event, if I am wrong about this, in my view VCAT is not limited to considering whether a party has failed to diligently prosecute their claim once proceedings have been issued at VCAT when considering whether VCAT should make an order under s 76 of the VCAT Act. VCAT may also consider whether there has been an inordinate and inexcusable delay by a party in commencing the proceeding. As Deputy President McKenzie (as she was then) observed in Gabriel v Council of Box Hill Institute of TAFE:

These words, "want of prosecution" are the same as the words used in the Rules of the Supreme Court relating to civil procedure, in particular Rule 24.01. The Tribunal should in applications under this section, take into account similar considerations as do the courts in determining whether to terminate a proceeding for want of prosecution. These considerations include whether there has been an inordinate and inexcusable delay by a party in commencing (emphasis added) or taking a step in the proceeding; whether the delay means that there will be a substantial risk that a fair trial will not be possible; any prejudice to the respondent which is caused by the delay and any hardship to a plaintiff if the matter is dismissed for want of prosecution. The overriding consideration of which these factors are examples is the interest of justice and the courts' ability to control its processes to ensure that those interests are not compromised. [13]

1. Accordingly, I do not accept Ms Stewart's contention that because she has diligently prosecuted her claim since lodging it with VCAT, the Tribunal cannot dismiss it under s 76 of the VCAT Act. If I am satisfied that there has been an inordinate and inexcusable delay by Ms Stewart in commencing her application at VCAT, her application can be dismissed under s 76 of the VCAT Act.

Should any of Ms Stewart's claims be dismissed under s 76 and clause 18 of Schedule 1 of the VCAT Act?

1. I agree with the respondents that Ms Stewart's claims set out in paragraph 10 (a) above should be dismissed under s 76 of the VCAT Act as provided by clause 18 of Schedule 1 of the VCAT Act. The alleged conduct took place over 15 years before Ms Stewart made her application and there is no evidence that Ms Stewart genuinely believed in 2000 that if she made an application to VCAT, she might have lost her job. This delay is inordinate and inexcusable. I also take into account that, as contended by the respondents, over time, witnesses memories fade, documents are often destroyed or lost and the quality of evidence deteriorates. I accept the evidence set out in Ms Drummond's affidavit that the respondents would suffer prejudice if this claim was allowed to proceed due to the loss of critical witnesses who have retired from the City of Yarra since the events in question, including those in senior management positions at the relevant times, and because the few current employees who may have some direct knowledge of the events in question were not in senior management positions at the relevant times. Taking all of these matters into account, I am satisfied that if the claim was allowed to proceed, the delay would affect the quality of justice and it is not in the public interest for the respondents to be required to defend very serious claims relating to conduct that allegedly occurred over 15 years ago.

1. Ms Stewart's claims set out in paragraph 10 (b) above should also be dismissed under s 76 of the VCAT Act. According to the particulars set out in this paragraph, Mr Simic sexually harassed Ms Stewart for 6 years between 2000 and 2006, when Ms Stewart made her first formal complaint. However, there is no evidence that Ms Stewart genuinely believed prior to receiving the City of Yarra's letter dated 13 December 2006, that if she made an application to VCAT about Mr Simic's conduct, she might have lost her job. Ms Stewart provided no excuse for not making a claim to VCAT between 2000 and 2006 and the delay of between 15 and nine years is inordinate and inexcusable. Again, I also take into account that over time, witnesses memories fade, documents are often destroyed or lost and the quality of evidence deteriorates and evidence contained in Ms Drummond's affidavit in relation to the prejudice likely to be suffered by the respondents as a result of the delay. I am satisfied that it is not in the public interest for the respondents to be required to defend very serious claims relating to conduct that allegedly occurred between 15 and nine years.

The particulars contained in paragraphs 10 (c) to (e)

1. For the same reasons, I am also of the view that Ms Stewart's claims set out in paragraphs 10 (c) to (e) above which relate to conduct that was alleged to have taken place in 2010 and 2012 should also be dismissed under s 76 of the VCAT Act. Whilst Ms Stewart may have believed in 2006 that if she made an application to VCAT in relation to Mr Simic's conduct, she may have been dismissed, I am not satisfied this was a reasonable belief. There was no suggestion in either version of the letter from the City of Yarra to Ms Stewart about the outcome of the meeting on 5 December 2006 that if Ms Stewart made more complaints about Mr Simic, her job was in jeopardy. Whilst I accept that the earlier version of the letter asked Ms Stewart to agree to relocate to a location other than the Collingwood Depot if in the future she notified the City of Yarra that she was "experiencing distress" while working there, this request was deleted from the letter at Ms Stewart's request. In any event, viewed objectively, a request to accept a change of location does not equate to a threat of dismissal.
2. In addition, whilst Ms Stewart's particulars show that she did make additional complaints against Mr Simic in 2010 and 2012, she was not relocated or dismissed by the City of Yarra after making these complaints. In these circumstances, even if Ms Stewart genuinely believed from 2006 onwards that she would lose her job if she made an application to VCAT, I am not satisfied that this belief was a reasonable belief. Ms Stewart's reasons for the delay in making her claim to VCAT do not excuse the delay of between five and three years and it is not in the public interest to allow these claims to proceed.

The particulars contained in paragraphs 10 (f) and (g)

1. Ms Stewart's claims set out in paragraphs 10 (f) and (g) above which relate to conduct that was alleged to have taken place in 2013 and January 2014 should also be dismissed under s 76 of the VCAT Act for the same reasons. Ms Stewart's particulars in paragraphs 10 (f) and (g) above contain additional allegations of sexual harassment against Mr Simic and victimisation by the City of Yarra and details of fresh complaints made by her during this time. Again, no action was taken by the City of Yarra in 2013 or early 2014 that could objectively be said to provide her with a reasonable foundation for her apparent belief that her job would be in jeopardy if she made an application to VCAT. Ms Stewart's reasons for the delay do not excuse it. Whilst I acknowledge that the delay in making a claim to VCAT in relation to the conduct referred to in these paragraphs (2 ½ years and 23 months respectively) is less significant than the proceeding delay, that the extent to which memories are likely to have faded or the possibility of documents having been destroyed or lost is reduced and the prejudice likely to be suffered by the respondent if the claims are allowed to proceeded, on balance, I am nonetheless satisfied that the delay is likely to affect the quality of justice and that it is not in the public interest to allow these claims to proceed.

The particulars contained in paragraphs 10 (h) and (i)

1. The particulars contained in paragraphs 10 (h) and (i) above relate to a meeting Ms Stewart had with the City of Yarra on 2 October 2014 and on 13 November 2014, the City of Yarra's decision to stand Ms Stewart down at the latter meeting and its decision to make her redundant in January 2015. 13 November 2014 was the last day Ms Stewart attended her workplace before she refused the City of Yarra's offer of redeployment and accepted her redundancy entitlements on 9 July 2015. Ms Stewart's evidence is that she did not make an application to VCAT during this time because she was hoping to hold on to her job after having been stood down by the City of Yarra. I am satisfied that that Ms Stewart's job was genuinely in jeopardy at this time as a result of her attempt to provide the City of Yarra with photographic evidence that Mr Simic was stalking her and that her reason for not making a claim to VCAT within 12 months of these events is reasonable. I am not satisfied that the short delay in bringing her application to VCAT will have any significant impact on the respondents ability to defend the claim and that they will not suffer any significant prejudice if these claims are allowed to proceed. For these reasons the respondents' application for an order striking out or dismissing Ms Stewart's particulars contained in paragraphs 10 (h) and (i) above is dismissed.

The respondents' contentions that Ms Stewart's claims should be struck or dismissed under s 75 of the VCAT Act

1. The respondents also contended that Ms Stewart's delay in bringing the claims set out in paragraphs 10 (a) to (i) above means that to prosecute them now amounts to an abuse of process and that they should be struck out or dismissed under s 75 of the VCAT Act.
2. As explained in paragraph 36 above, the respondents' contentions in relation to why paragraphs 5 - 71 of Ms Stewart's particulars of claim should be struck out under s 75 of the VCAT act are set out in paragraphs 32 to 34 above. Additionally, the respondents contended that it is also an abuse of process to allow Ms Stewart to prosecute a claim that relates to alleged conduct which she complained about in 2000 and which was resolved at mediation (the claim set out in paragraph 10 (a) above).
3. Ms Stewart's contentions in relation to why paragraphs 5 - 71 of Ms Stewart's particulars of claim should not be struck out under s 75 of the VCAT act are set out in paragraphs 42 to 44 above. In addition, Ms Stewart denied that Ms Drummond's affidavit showed that an agreement had been reached between the parties after the mediation in 2000 on the basis that it did not refer to any releases having been signed by the parties. Mr Millar also noted that the file note headed "Follow up Meeting after Mediation"[14] was dated 31 January 2000, which was before the alleged incident, although he conceded during the hearing that the date on the file note may have been a typographical error.
4. Section 75(1)(b) relevantly provides that, at any time, the Tribunal may dismiss or strike out a proceeding if it is an abuse of process. Whilst "abuse of process" is not defined in the VCAT Act, it has been described by the Supreme Court of Victoria as a "proceeding that is being used in a way that is manifestly unjust, oppressive or unfair to a party to the proceeding, or would otherwise bring the administration of justice into disrepute among right-thinking people"[15]. VCAT has held on many occasions that this includes a proceeding where there has been an inordinate delay in bringing the complaint.[16]
5. Having considered the contentions of the parties in relation to s 75 of the VCAT Act, I can find no grounds for either allowing any additional claims to proceed or dismissing any more of Ms Stewart's claims than those I have allowed and dismissed under s 76 and clause 18 of Schedule 1 of the VCAT Act.

The parties' contentions in relation to section 5 of the Limitation of Actions Act 1958

1. As I have decided to dismiss all of Ms Stewart's particulars of claim that relate to alleged conduct that took place more than six years before she lodged her application under s 76 of the VCAT Act, it is unnecessary to consider whether these claims are statute barred under s 5 of the Limitation of Actions Act 1958.

The parties' contentions in relation to the particularisation of Ms Stewart's claim

1. The parties agreed at the hearing that Ms Stewart would file and serve amended particulars of claim in accordance with this decision and that the amended particulars of claim would address any outstanding request for further and better particulars from the respondents. The respondents may apply for further and better particulars of the claim or any other orders they consider appropriate if they form the view on receiving the amended particulars of claim that the particulars are still inadequate.

1. Mr Solomon-Bridge indicated at the hearing that the respondents intended to apply for an order for Ms Stewart to pay their costs in relation to their application to strike out paragraphs 5 to 71 of Ms Stewart's particulars of claim in the event they were successful. If the respondents intend to make such an application, it should be made in writing.

[1] Ms Stewart's application only refers to discrimination due to parental status but it can be inferred from her particulars of claim and her submissions filed in opposition to this application that she is also claiming discrimination due to sex and disability.

[2] The respondents were granted leave at the hearing to amend their strike out application to include an application for orders under s 76 and clause 18 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998.

[3] [2014] VCAT 1439.

[4] Burrows v State of Victoria [2002] VCAT 1655 at [44].

[5] See Tewoldebrhan v Australian Safeway Stores Pty Ltd [2006] VCAT 2291 at [28].

[6] Cf. Kramersh v IPD Education Limited [2014] VCAT 1439 at [49].

[7] [2002] VCAT 1655 at [38].

[8] [2014] VCAT 1439.

[10] [2013] VCAT 1632.

[12] Pizer's Annotated VCAT Act, 5th Edition, Jason Pizer and Emrys Nekvapil, Thomson Reuters 2015, [VCAT.76.200].

[13] Gabriel v Council of Box Hill Institute of TAFE [2002] VCAT 302 at [8].

[14] Exhibit 'LFD-6' of Ms Drummond's affidavit.

[15] Molyneux v VCAT [2007] VSC 89 at [53].

[16] Burrows v Victoria [2002] VCAT 1655; Sleigh v Victoria [2010] VCAT 2057 at [8], [28]; Garcia v Miles [2012] VCAT 262 at [16], [20]; Jovancevski v United Voice [2013] VCAT 25 at [15]-[16].