Section 124 of the EO Act gives the Tribunal jurisdiction to hear a complaint which is referred to it by the Commission under s108, 113, 117 or 123. It has no jurisdiction to hear a complaint unless it has already been referred to the Commission save for a complaint referred to it by the Minister under s111. Accordingly although the Tribunal has a general power of amendment under s127 of the VCAT Act because it is subordinate to the enabling legislation (s159 of the VCAT Act) it cannot amend a complaint so as to introduce a fresh complaint which has not been the subject of a complaint to the Commission. [3]

1. In Burrows v Victoria (2002) VCAT 1655 Deputy President McKenzie confirmed that a complaint made under the Equal Opportunity Act 1995 could not be amended so as to include a fresh claim or cause of action.
2. In this case, I find that the additional claims made by Mr Tate, first as to the placing of fifth grade students including Miss Shan - Tate in the re-locatable classroom late in 2011, and secondly as to the alleged victimisation by way of 'looking and staring" are fresh complaints which had not been the subject of the complaint to the Commission. They relate to different periods of time from the original complaint, different incidents and even different people, for example the Assistant Principal.
3. I do not therefore allow for the amendment of the complaint.

The events which are the basis of the complaint

1. The complaint is therefore that which was made to the Victorian Equal Opportunity and Human Rights Commission, and referred to the Tribunal. The events were as follows.
2. On 9 December 2010 the classroom allocations were made.
3. Miss Shan-Tate was allocated to the re-locatable classroom. Soon after, Mr Tate made a request to the Assistant Principal for this decision to be reversed, stating medical reasons and reminding the Assistant Principal that Miss Shan-Tate suffered from asthma.
4. On 16 December Mr Tate met with the Principal, Ms Ginnane and provided a medical report which advised that because of her asthma Miss Shan-Tate should be in a classroom away from the main road. Mr Tate's evidence was that this report was supplementary to information the school already had about Miss Shan Tate's asthma. This meeting was, according to the evidence, a difficult one. Mr Tate wanted his daughter to attend, and Ms Ginnane thought it would be better if she returned to her class. Ms Ginnane did not agree to a re-allocation of classroom on this date. According to Mr Tate, Ms Ginnane did not talk of any discussions she may have been having with the Department of Education and Early Childhood Development (DEECD), but did note that several other families had requested classroom changes. At this meeting, according to Mr Tate, Ms Ginnane suggested that Miss Shan-Tate could move to a different school if she was not happy with the classroom allocation.
5. The next day Mr Tate complained to the Western Regional Office of DEECD. From 20 December Mr Tate dealt directly, by telephone and correspondence, with Mr Peter Yewers of that office. Around this time Mr Tate delivered a letter to the Western Regional Office of DEECD, where Katherine Henderson was Regional Director.
6. In Mr Tate's statement of particulars dated 18 December 2011 he states that:

On 24th December 2010 Kathleen Ginnane and Katherine Henderson simultaneously issued correspondence that indicated the change was granted. The Principal emailed a statement that she had made a local decision, based on the request and medical certificate supplied, and the Director stated she had been informed that the Principal had made a local decision.

1. Ms Ginnane's email, dated 24 December 2010, stated, in part, the following:

Adam I have heard nothing back from Peter or Katherine re this issue, which I would like to be resolved now before I finish work for a couple of weeks. My concerns are always for the child first and I do not want Jackie worried or unsure about her room placement for next year throughout the holidays. Even though I have made it very clear to you and to Peter Yewers that I still believe Jackie should rightfully be in the original classroom along with other children who do have varying degrees of asthma, taking into account your strong views on the matter and the certificate from Dr Miao, I have now made a decision to make the class group change. This decision is primarily based on medical grounds and therefore I do need more on record regarding Jackie's asthma than I currently have. Could you please gain from her doctor a new asthma management plan for the start of the year.[4]

The respondent's application for the proceeding to be dismissed under section 75

1. I will first deal with section 75 of the Victorian Civil and Administrative Act 1998, then the law as to and my findings about the claims of direct and indirect discrimination.
2. Section 75 of the VCAT Act gives the Tribunal a discretion to dismiss or strike out a proceeding whether or not all the evidence has been heard. It can do so if in its opinion all or part of the proceeding is frivolous, vexatious, misconceived or lacking in substance, or is otherwise an abuse of process. There have been many cases about section 75. [5] In Norman v Australian Red Cross Society (1998) 14 VAR 243 Deputy President McKenzie put it as follows: "The Tribunal should exercise caution before summarily terminating a proceeding. It should only do so if the proceeding is obviously hopeless, obviously unsustainable in fact or in law, or on no reasonable view can justify relief, or is bound to fail. This will include, but is not limited to, a case where a complaint can be said to disclose no reasonable cause of action, or where a Respondent can show a good defence sufficient to warrant the summary termination of the proceeding.[6]"
3. If the Tribunal is not so satisfied the matter should go to a hearing so the applicant has the chance to have the complaint heard and so the evidence can be tested in the usual way. When the high bar set out above is not reached, and there is simply a dispute between the parties as to the complaint, the matter should go to hearing.
4. In considering an application under section 75 I must take the complainant's case at its highest, and I do, assuming that the events occurred as Mr Tate described them.

The claim of direct discrimination - law and findings

1. In its application under section 75 the respondent submitted that the complaint disclosed no basis for a claim of direct discrimination. The complaint was made under the Equal Opportunity Act 1995, and the definition of direct discrimination in that Act was as follows:

(1) Direct discrimination occurs if a person treats, or proposes to treat, 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.

(2) In determining whether a person directly discriminates it is irrelevant

1. whether or not that person is aware of the discrimination or considers the treatment less favourable;
2. whether or not the attribute is the only or dominant reason for the treatment, as long as it is a substantial reason.

1. Mr Tate submitted that the attribute was impairment, being Miss Shan-Tate's asthma, and that the discrimination was the refusal to change the classroom allocation and the solution that Mr Tate said Ms Ginnane proposed, that Miss Shan-Tate "either attend in the allocated class, or she could leave the school to attend a class in another school ..."
2. I find that there is no basis in the complaint upon which a claim of direct discrimination can succeed. In order for such a claim to succeed, Mr Tate would have to establish that Miss Shan-Tate was treated less favourably than other students in similar circumstances, and that a reason for the less favourable treatment was her asthma. The respondent submitted, and Mr Tate did not contest this, that the classroom allocation was made according to the usual decision making process adopted by the Principal. Miss Shan-Tate was not treated differently, or less favourably than any other student. Regardless of the amount of information Ms Ginnane had about Miss Shan-Tate's medical condition, it cannot be said that she made a decision that had the effect of treating Miss Shan-Tate less favourably because of it. In other words, Ms Ginnane did not make the decision to allocate Miss Shan-Tate to the relocatable classroom because she had asthma. Mr Tate submitted that the discrimination occurred in the initial refusal to change the decision, once the medical report about Miss Shan-Tate's asthma was provided. During this period of time, 9 December 2010 to 24 December 2010, according to Mr Tate, Ms Ginnane maintained that the original allocation stood. I find that this initial refusal to change the classroom allocation cannot be said to have been made because of Miss Shan - Tate's asthma. Rather, on the evidence, I find that the most likely reason why Ms Ginnane refused to change the decision initially was because she considered that she had applied the usual decision making process for allocating children to classrooms.. There was no evidence, even taking Mr Tate's assertion at its highest, that the decision, or the initial refusal to change it, was made because Miss Shan-Tate had asthma. Accordingly I accept the submission of the respondent that the claim of direct discrimination is so lacking in substance as to be bound to fail.

1. The law about indirect discrimination is set out in section 9 of the Equal Opportunity Act 1995 as follows:

(1)Indirect discrimination occurs if a person imposes, or proposes to

(a)that someone with an attribute does not or cannot comply

(b)that a higher proportion of people without that attribute, or

with a different attribute, do or can comply with; and

(2)Whether a requirement, condition or practice is reasonable depends

on all the relevant circumstances of the case, including -

(a)the consequences of failing to comply with the requirement,

(b)the cost of alternative requirements, conditions or practices;

(c)the financial circumstances of the person imposing, or

proposing to impose, the requirement, condition or practice.

(3)In determining whether a person indirectly discriminates it is

irrelevant whether or not that person is aware of the discrimination.

1. The original decision as to classroom allocations was announced to children and their families on 9 December 2010. Miss Shan-Tate and her family were not happy with the decision. There were meetings and discussions between Mr Tate and Ms Ginnane, and between Mr Tate and the Western Regional Office of DEECD. No doubt this was a stressful period, and I accept and understand that Miss Shan-Tate and her family were unsettled and distressed by the uncertainty about what arrangements would be in place for the following year. I accept that at one stage Ms Ginnane suggested that if Miss Shan-Tate was not happy with the classroom allocation the family might wish to consider transferring to another school. This, according to Mr Tate, widened the degree of uncertainty and anxiety. I understand that this would be so. On 24 December, however, Ms Ginnane and Ms Henderson, Regional Director of DEECD, sent the emails that confirmed the decision that Miss Shan-Tate would go into the classroom of her choice in 2011. Mr Tate read these emails after Christmas.
2. I find, therefore, that there was no requirement, condition or practice imposed upon Miss Shan -Tate with which she could not comply because of her asthma. Miss Shan-Tate was not allocated to the re-locatable classroom, and was able to commence the new school year in the classroom of her choice.
3. I further find that there was no requirement, condition or practice proposed to be imposed upon Miss Shan Tate with which she could not comply. The decision was a provisional decision until it was finalised on 24 December 2010. In accepting the evidence at its highest, I accept that Ms Ginnane presented it as a final decision. It was, however, clearly subject to review and it was reviewed. The decision was re-considered by both Ms Ginnane and the DEECD and was ultimately reversed. In seeking to have the decision reviewed by DEECD Mr Tate clearly considered it to be a provisional decision which was still subject to change. [7] It was a decision subject to change, and it was changed.
4. Accordingly, taking the complainant's evidence at its highest, I accept the submission of the respondent that the claim of indirect discrimination is so lacking in substance as to be bound to fail.

1. As I have not allowed the amendment, the events that this complaint deals with occurred between 9 December 2010 when the initial classroom allocation was made, and 24 December 2010, when the final decision was made and communicated by email to Mr Tate.
2. There were various other issues raised. For example, the respondent alleged that Mr Tate's role on the school council may have been an underlying basis for the complaint. Mr Tate strongly refuted this. I have not taken Mr Tate's role on the school council or any of his interactions with the Principal in that role into account in making my decision. Mr Tate made various complaints about the Principal generally and, for example, her contact with other students, and also about the complaints handling processes of the school and the Department. As these do not relate to the claims of discrimination I have not taken them into account in making the decision.
3. For an application under section 75 to be successful, the bar is high. As I have said, I find that the claims of direct and indirect discrimination are so lacking in substance as to be bound to fail, for the reasons set out above. I am therefore satisfied that the high bar is met and accordingly I make the order set out at page 1.

[2] Submissions of Mr Tate dated 30 March 2012 at page 25

[3] Kay v Bracks (2000) VCAT 2304 at paragraph 18

[4] Set out in Mr Tate's Response to Submissions dated 30 March 2012 at page 13

[5] The cases include the following: 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.

[6] Norman v Australian Red Cross Society (1998) 14 VAR 243;

[7] Note Capodicasa v Herald and Weekly Times Limited [1998] VADT 14 (11 September 1998) in which the issue of whether or not the omission of a complainant's name from a work roster constituted unfavourable treatment when the roster was ultimately changed to include his name.