Tassone v Hickey [2001] VCAT 47

2. The Respondents costs are reserved. The Respondent has liberty to apply for those costs. That application must be made on or before 18 July 2001. If that application is not made within that time, there is no order as to costs.

1. The decision in this matter was reserved and I am now in a position to hand it down. The decision is that the complaints are dismissed. The orders have been typed and signed and the Registrar is in a position to give you copies of them.

2. I now give my reasons for this decision. These complaints were lodged by Bruno and Damiano Tassone against the respondent who is Monsignor Hickey. Monsignor Hickey has applied to have the complaint struck out or dismissed under s.75 of the Victorian Civil and Administrative Tribunal Act 1998 which I call the VCAT Act on all the grounds mentioned in that section. Those grounds are that the complaints are frivolous, vexatious, misconceived, lacking in substance or at an abuse of process.

3. The principles to be applied in determining applications such as this were discussed by the Victorian Court of Appeal in Rabel v. State Electricity Commission [1998] 1 VR. 102 and have been followed by VCAT in many cases, for example Norman v. Australian Red Cross Society, a decision of VCAT dated 27 November 1998.

4. Relevantly, those principles are that VCAT should be cautious before summarily terminating a complaint before evidence has been heard and tested in cross-examination and so depriving the litigant of the chance to have the case heard in the ordinary course. It should only do so where the respondent satisfies it that the case is undoubtedly hopeless, manifestly untenable in fact or law or otherwise doomed to fail.

5. One way in which a respondent may do this is to satisfy the Tribunal that one of the exception provisions to the prohibitions of discrimination in the Equal Opportunity Act (1995) so clearly applies to the case that the case is manifestly hopeless.

6. The effect of s.12 of the Equal Opportunity Act is that conduct is not prohibited discrimination if an exception provision applies. The respondent takes the complainants' case at the highest - that is, the respondent assumes that the complainants will be able to prove what they assert.

7. What the complainants assert is this. Monsignor Hickey is parish priest of St Mels Roman Catholic Church, Shepparton. The complainants are parishioners of that parish and attendees of that church. The complainants and some others in the parish wish to be able to celebrate a festival for St Joseph, the father of Jesus Christ.

8. In 1992, the complainants and others formed a committee to organise that celebration or festival. The celebration involved a street procession, a mass, a shared meal and various other social activities. From 1992 to 1997 Monsignor Hickey endorsed the celebration. He conducted the celebration mass at St Mels Church. He made the church hall and other parish facilities available for use in the celebration. He authorised the organising committee to go from door to door seeking funds for the celebration.

9. By letter dated 30 April 1997, he withdrew these authorisations and that endorsement. Since then St Joseph's celebration has not been celebrated by mass at St Mels Church or by using St Mels parish facilities.

10. The reasons given in Monsignor Hickey's letter of 30 April for withdrawing that endorsement were that the conditions under which he had originally endorsed the celebration were not being met. Those conditions were that the celebration was to be organised by a representative committee, that it present regular balance sheets to Monsignor Hickey and that the celebration should not interfere with the St Mels parish celebration of the St Anthony festival.

11. The complainants dispute the validity of all these reasons. They say that the true reason, or at least a substantial reason for Monsignor Hickey's withdrawing his endorsement of the St Joseph's celebration is the complainant's religious activity. They say that withdrawing the endorsement of that celebration is a beach of the Equal Opportunity Act.

12. The religious activity on which the complainants rely is their belief in and their participation in the St Joseph celebration. Religious belief or activity is an attribute listed in s.6 of the Equal Opportunity Act. Among other things, s.4 of that Act defines this term to mean holding a lawful religious belief or view or engaging in a lawful religious activity.

13. Although the reason for Monsignor Hickey's withdrawal of the endorsement of the St Joseph's celebration would clearly be a contentious matter if the complaints had gone to a hearing, the respondent argues this application taking the complainant's case at its highest and assuming that belief in and participation in the St Joseph's celebration is an attribute within the meaning of s.6 of the Equal Opportunity Act and that this attribute was at least a substantial basis for Monsignor Hickey's decision.

14. The respondent argues on three grounds that the complaints ought to be dismissed. First, Monsignor Hickey's conduct, even if attribute-based, was incapable of constituting a breach of the Act; it was incapable of constituting services within the meaning of s.42 of the Equal Opportunity Act. Second, even if it is capable of constituting services, it is incapable of constituting direct discrimination under that Act. Third, even if it falls under s.42 and is capable of constituting direct discrimination, the conduct is not prohibited because it falls under a number of the exception provisions in the Equal Opportunity Act. These are the three bases on which the respondent argues that the complaint should be dismissed. I deal with each in turn.

15. I begin by asking is the conduct so incapable of constituting services for the purpose of the Act that the case is manifestly hopeless and should be struck out or dismissed? Section 42(1) of the Equal Opportunity Act provides that -

"(1) a person must not discriminate against another person -

(a) by refusing to provide services to the other person;

(b) in the terms on which services are provided to the other person; or

(c) by subjecting the person to any other detriment in connection with the provision of services to him or her".

16. The section applies whether or not the services provided are provided for payment. (See s.42(2)). Section 4 defines services in this way -

"services" includes, without limiting the generality of the word -

(a) access to and use of any place that members of the public are permitted to enter;

(b) banking services, the provision of loans or finance, financial accommodation, credit, guarantees and insurance;

(c) the provision of entertainment, recreation or refreshment;

(d) services connected with transportation or travel;

(e) services or any profession, trade or business including those of an employment agency;

(f) services provided by a government department, public authority, State-owned enterprise or municipal council -

but does not include educational training in any educational institution".

17. The respondent argues that on its proper interpretation this definition does not include spiritual services. It is confined to temporal or secular services. The complainants argue that the term is broad enough to include both spiritual and secular services. I am not satisfied that the conduct here is so clearly incapable of constituting services under the Equal Opportunity Act that the case is manifestly hopeless on this ground.

18. According to the particulars of complaint, the services which Monsignor Hickey provides to parishioners of St Mels including the complainants are those of a parish of the Roman Catholic church including the conducting of masses, pastoral care for parishioners and the making available of church facilities for parish activities.

19. The definition of services in the Equal Opportunity Act is inclusive not exhaustive. Even some of the inclusions themselves use the word "services" such as services provided by a municipal council. The inclusions do not limit the ordinary meaning of the term "services". The definition of this term in the Equal Opportunity Act is very similar to the definition of the term "services" in the West Australian Equal Opportunity Act 1984. That definition was interpreted by the High Court in I.W. v. City of Perth [1997] HCA 30; [1997] 146 ALR 696.

20. It is clear from the majority judgments in that case that "services" has its ordinary meaning and is capable of covering both tangible and intangible benefits. The court indicates that the inclusions in the definition in the West Australian Act did not limit that ordinary meaning.

21. It is argued for the respondent that the flavour of the term "services" really relates to the supply of commodities. The majority judgments in I.W.'s case in my view looked more at the question of benefit to the individual although it is clear that that is not necessarily a definitive indicator of whether conduct is a service or not.

22. The High Court in the majority judgment seemed to me to have been applying a dictionary definition of the term "services" which relates to any act of helpful activity rather than the commodity-based definition. Both definitions are contained in the dictionary meanings given to the term "services".

23. The respondent argued that since the inclusions in the definition cover only secular matters, I should conclude that the Equal Opportunity Act does not cover the conferral of benefits of a spiritual kind. I do not think that this is the correct way to construe the definition. The statute expressly says that the inclusions are not intended to limit the breadth of the term "services". That terms has it ordinary dictionary meaning.

24. In this sense it may be thought that it was unnecessary to state the inclusion at all but the inclusions may have been stated to clarify the breadth rather than to limit the scope of the ordinary meaning of the term "services". So for example, the inclusions make it clear that the fact that certain providers provide the service does not take those services out of the definition of the term. A specific reference is made to services provided by the public sector - that is, by the State or by municipal councils.

25. Again, the inclusions make it clear that relationships which may be thought to be of a private or contractual nature can also be covered by the term "services". So the inclusions mention banking, credit and recreation. There is nothing in the ordinary meaning of the term "services" to confine it to secular as distinct from religious matters.

26. Because the matter is not free from doubt, I can have recourse to s.35 of the Interpretation of Legislation Act 1984 for assistance. That tells me that I must prefer a construction which will promote the underlying purpose or object of the Act.

27. The scheme of the Equal Opportunity Act is indicated by its objectives. They appear in s.3. One of them is to eliminate as far as possible discrimination by prohibiting it on the basis of various attributes. The interpretation of "services" which I suggest would, in my view, promote that objective and would not strain the meaning of the term. (As to construction of human rights related legislation generally, see Waters v. Public Transport Corporation [1991] HCA 49; [1991] EOC 92-390).

28. I would simply say that, taking a hypothetical and one would hope unlikely example of a priest or minister of religion who refused all services of a church to people of a particular race, it does not seem to me that the Equal Opportunity Act is not apt to cover such a refusal because it is not a refusal of "services".

29. Some support for the broader definition of services comes in my view from ss.75 to 77 of the Equal Opportunity Act. These are the exceptions relating to religious matters. They disapply the whole of part 3 in certain specified circumstances. One would have expected more narrowly drafted provision if in fact in certain specified circumstances the provisions of part 3 already had no application.

30. I should add that I was referred by all parties to the second reading speech for the bill that eventually became the Equal Opportunity Act. (See for example, Victorian Parliamentary Debates, Legislative Assembly at p.1249 and following). In that speech the then Attorney-General said in relation to the exceptions concerning religious matters that the bill intended to strike an appropriate balance between freedom of religion and freedom from discrimination. This statement is not of assistance in interpreting the definition of services. The statement relates more to the exceptions provisions than to that definition and it gives no indication of what the appropriate balance is.

31. The Respondent argued that Parliament could not have intended the definition of "services" to cover the choice, by a Priest, of which religious observances to perform in the Priests Parish, and so effectively to enable parishioners with particular attributes to dictate what that choice will be by claiming discrimination if other choices were not to their liking. I reject this submission. The scope of the definition of "services", but also by the scope of the concept of discrimination and by the exceptions to the prohibitions in the Act. Even if the performance of a religious observance is a service, this fact does not mean that the performance of the observance will be covered by the Equal Opportunity Act or that that Act will take away the Priest's freedom of choice as to which religious observance to perform. Even if the Act applies, it only means that a Priest cannot discriminate in the performance of this service in a way prohibited by the Act. The term "services" should, as I have indicated, be interpreted according to its ordinary meaning and having regard to the objectives of the Act.

32. I now come to the respondent's second argument. This was that even if the conduct was capable of constituting services, it was incapable of constituting direct discrimination. There is some confusion in the particulars of complaint about how exactly the complainants' case is put under s.42 of the Equal Opportunity Act. It seems difficult to characterise Monsignor Hickey's refusal to conduct mass and to allow the use of parish facilities for the St Joseph's celebration as a refusal to provide a service, given the general description of services which is set out in the particulars of complaint.

33. It would also seem artificial to characterise as a separate service every mass which Monsignor Hickey conducts or every use of parish facilities which Monsignor Hickey authorises. These seem more to be the terms or content of the general services which he provides. Indeed there is some suggestion in the particulars of complaint that this is in fact how the case is put.

34. The complainants are saying that a term of the service provided by Monsignor Hickey is either that mass will not be conducted and church facilities will not be used for the St Joseph's celebration or alternatively that masses will be conducted and church facilities will be permitted to be used for any purpose other than the St Joseph's celebration. In either event, the characterisation turns on the refusal to conduct masses or allow church facilities to be used for the St Joseph's celebration.

35. According to the particulars of complaint, the claim is one of direct discrimination. There is no suggestion that this is a claim of indirect discrimination. Under the Equal Opportunity Act s.8, direct discrimination occurs if a person treats someone with an attribute less favourably than the person treats or would treat someone without that attribute or with a different attribute in the same or similar circumstances. The attribute must be a substantial reason for the treatment but the reason for the treatment is not, as I have said, the grounds of this application.

36. Section 42 prohibits discrimination by refusing to provide a service in the terms of the provision of a service, or by subjecting a person to a detriment in connection with the provision of a service. The conduct which falls into one of these categories must also be the conduct which constitutes the treatment for the purposes of direct discrimination. Here the treatment is the refusal to conduct mass or to make church facilities available for the St Joseph's celebration.

37. Direct discrimination requires a comparison to be made between the way Monsignor Hickey treats the complainants, people with the attribute of religious belief or activity and the way he treats or would treat someone with a different attribute or without that attribute. That treatment must be in the same or similar circumstances.

38. If the treatment is as I have defined it, Monsignor Hickey has treated all parishioners, irrespective of attribute, the same. He has not treated the complainants less favourably than the rest. The comparison cannot be, as the complainants argued, between the refusal to conduct mass or permit the use of church facilities for the St Joseph's celebration and what the complainants say would be the conducting of mass or the permission to use church facilities for some other purpose.

39. That comparator is impermissible for two reasons. First it is not a comparison in the same or similar circumstances. Second it is not the same treatment. It is not the conduct which is alleged to fall under s.42. That conduct relates to the St Joseph's celebration alone. On this basis the complaints are incapable of constituting direct discrimination and so are manifestly hopeless.

40. I would add that a second foundation for my conclusion that the complaints are manifestly hopeless is that they are covered by s.75(1)(c) of the Equal Opportunity Act. That provision states -

"(1) Nothing in Part 3 applies (including sections 47 and 58)-

(c) the selection or appointment of people to perform functions in relation to, or otherwise to participate in, any religious observance or practice".

41. The respondent argues that this exception clearly applies. The complainants argue that it does not apply because it is confined to the selection or appointment of the alleged discriminator or of the complainants. The complainants argued that the conduct here concerns not Monsignor Hickey's appointment but the discharge of his functions after his appointment as parish priest. They argue that the conduct here does not concern the appointment or selection of the complainants but rather that Monsignor Hickey's refusal to endorse a festival in which the complainants wish to participate is the relevant conduct.

42. I agree with the respondent that this exception clearly applies. It is in broad terms. It is not confined to the selection or appointment of the person whose conduct is the subject of the complaint. In my view it would cover not only the selection by a parish priest of some parishioners and not others to participate in a religious observance or practice but also a decision by a parish priest that no one in the parish is to participate in a particular religious observance or practice.

43. In my view that is what Monsignor Hickey has done here. The St Joseph's celebration is a religious observance or practice, albeit it does include some ancillary social activities. Monsignor Hickey has decided that his parish church and his parishioners will not participate in that celebration. If this exception provision applies, then by s.12 the conduct is not prohibitive discrimination.

44. The respondent also relied on a number of other exceptions in the Act. The respondent said that his conduct was covered by s.75(2). That sub-section provides -

"(2) "Nothing in part 3 applies to anything done by a body established for religious purposes that -

(a) conforms with the doctrines of the religion; or

(b) is necessary to avoid injury to the religious sensitivities of people of the religion".

45. I am not satisfied that these exceptions so clearly apply that the complaints are manifestly hopeless on this ground. While Monsignor Hickey as a parish priest may be described as a church official, I am not satisfied that he is a religious body for the purposes of the provision. It was not argued by the Respondent on the basis that the church was a religious body and Monsignor Hickey was acting on its behalf. There was no argument of that kind put. The religious body, according to the respondent's argument, was Monsignor Hickey.

46. In addition no doctrine which prohibits the conduct of the St Joseph's celebration was pointed to by the respondent. Although it was asserted in the respondent's submissions that there was a church doctrine that a priest has absolute discretion to decide which religious observances are conducted in the parish under the priest's authority, no evidence was led to support this assertion and no religious teachings were referred to support it.

47. No evidence was led by the respondent as to the sensitivities of people of the Roman Catholic religion which would be injured if the St Joseph's celebration were conducted at St Mels or of whether to avoid injuring any such sensitivities, it was necessary rather than merely convenient or desirable not to conduct that celebration, or of the nature or composition of the group which might be affected by such a celebration being conducted.

48. There is some suggestion that Monsignor Hickey's religious sensitivities might be injured but again there was no evidence of this. Indeed there was evidence to the contrary. It is not disputed that Monsignor Hickey endorsed the St Joseph's celebration from 1992 to 1997.

49. The respondent also relied on the exception in s.77. That section provides -

"Nothing in part 3 applies to discrimination by a person against another person if the discrimination is necessary for the first person to comply with the person's genuine religious beliefs or principles".

50. Again for similar reasons to those I have mentioned in relation to s.75(2)(b), the respondent has not satisfied me that this exception is clearly applicable.

51. My conclusion is that the complaints are not curable by amendment and should be dismissed under s.75 of the VCAT Act. I would add one final comment. On the material before me, it is clear that the disagreement which has arisen between the complainants and some other parishioners and Monsignor Hickey has caused distress and disharmony. It would seem far better for all that this matter be resolved through private discussion or mediation rather than through the public forum of this Tribunal.