Pursuant to Sections 75 and 109 of the Victorian Civil and Administrative Tribunal Act 1998 this Tribunal orders -

2. That the Respondent's costs are reserved. The Respondent has liberty to apply for those costs. Any such application must be filed and served on or before 31 May 2002.

3. That, if the Respondent does not apply for those costs within the time set by Paragraph 2 or if, within that set time, the Respondent advises the Tribunal that he does not seek costs, there is no order as to costs.

[1] I can now hand down the decision in relation to this complaint, and it is that the complaint is dismissed. I now give my reasons.

[2] Mr Tomasevic has lodged a complaint with the Equal Opportunity Commission ("the Commission") under the Equal Opportunity Act 1995("Equal Opportunity Act"). The Commission characterised the complaint as claiming impairment discrimination, and authorising or assisting discrimination. It declined to entertain the complaint under s.108(1)(a) of the Equal Opportunity Act. That provision permits the Commission to decline a complaint which it considers frivolous, vexatious, misconceived, or lacking in substance. As was his right, Mr Tomasevic required the Commission to refer the complaint to VCAT. The complaint was referred to this Tribunal. After particulars of complaint of defence were filed in accordance with the Tribunal's directions, the respondent, Dr Strauss, applied under s.75 of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act"), to dismiss this complaint as misconceived or lacking in substance.

[3] The principles applying to applications of this kind are set out by the Victorian Court of Appeal in Rabel v. State Electricity Commission 1998 1 VR 102 and had been followed by VCAT in many subsequent cases. So far as relevant they are these. The Tribunal should be cautious before summarily terminating a complaint under this section, and so depriving the litigant of the chance to have the case heard in the ordinary course. It should only do so where the respondents satisfies it that the case is manifestly hopeless, undoubtedly untenable, or doomed to fail for one of the reasons mentioned in s.75(1). Two of these reasons are that the proceeding is misconceived or lacking in substance, in other words, the two reasons of which Dr Strauss now relies.

[4] I have before me the complaint, the particulars of complaint and defence, and written and oral submissions by the parties on this strike out application. The particulars of complaint refer by way of background to another complaint which Mr Tomasevic has made against the Department of Education, Employment and Training, and Mr Van Halen who, at the material time, was principal of Deer Park Secondary College. To put the complaint against Dr Strauss in context, it is necessary to mention this other claim. I now summarise Mr Tomasevic's claims against Dr Strauss. The background to the claim is this.

[5] From 1990, Mr Tomasevic was employed as a physical education teacher at Deer Park Secondary College. He was later promoted to coordinator and then manager of the Health and Physical Education area. He says that from 1999 on, he made a number of reports to the school vice-principal that a member of the school staff had been misappropriating school funds. The school, he says, did not act on these reports.

[6] In May and June 2000, disciplinary proceedings were instituted by Principal Van Halen against Mr Tomasevic, and at the end of June 2000 Mr Tomasevic was suspended from teaching duties. It is unnecessary for me here to set out in detail the disciplinary action and its course. Principal Van Halen arranged for Mr Tomasevic to attend an appointment with Dr Strauss on 10 August 2000. It is this medical examination and the report which resulted from it which are the subject of Mr Tomasevic's claim against Dr Strauss.

[7] Dr Strauss diagnosed Mr Tomasevic as being unfit to work in a teaching situation, and unfit for full time teaching duties. Mr Tomasevic says that as a result of the Department taking into account this diagnosis, he remains on suspension from full time teaching duties. In a separate complaint numbered A416 of 2001 in this Tribunal's files, Mr Tomasevic claims impairment discrimination among other things against the Department and against Principal Van Halen.

[8] I now summarise specifically the claims of Mr Tomasevic against Dr Strauss on the basis of all the material before me. Read as a whole, the claims are that Dr Strauss presumed that Mr Tomasevic had a psychiatric impairment whereas he did not in fact have such an impairment. He says that as evidence that he did not have such an impairment, his own treating general practitioner and four other psychiatrists have examined him and reported to that effect.

[9] He says that on the basis of this presumed impairment, Dr Strauss treated him less favourably than he would have treated a person whom he did not presume to have a psychiatric impairment by,

[10] (A) Conducting a medical examination of Mr Tomasevic which was too short to make a proper diagnosis.

(B) Giving too much weight to what was said in a letter written to Dr Strauss by Principal Van Halen concerning Mr Tomasevic's alleged behaviour at the Deer Park Secondary College.

(C) Giving too little weight to what was said by Mr Tomasevic at the medical examination.

(D) At the medical examination not advising Mr Tomasevic of the contents of Principal Van Halen's letter and not giving him an opportunity to respond to it.

(E) Basing his diagnosis on the fact that Mr Tomasevic had suffered from depression a year earlier. Mr Tomasevic says that that depression was temporary, that he had recovered from it in 1999 and required no further treatment.

(F) By not investigating whether what Principal Van Halen said in his letter was accurate.

(G) By incorrectly diagnosing Mr Tomasevic as having a psychiatric impairment, which made him unfit for full time teaching duties. Mr Tomasevic also claims that Dr Strauss, by diagnosing him as unfit for teaching duties because of a psychiatric impairment, provided a report which the Department and Principal Van Halen then used as a basis for discriminating against him on the basis of impairment, in that this report was the basis for his continuing suspension from teaching duties.

[11] I note that the claim against Dr Strauss is denied.

[12] I now say something about Dr Strauss' report. It is not necessary for me to set out the report in full. I summarise certain broad aspects of it.

[13] The report first sets out a detailed patient history, which on its own words is based on statements made to Dr Strauss by Mr Tomasevic. That history mentions Mr Tomasevic's depression, that it had not caused him to have time off work, and that by the middle of the year it had ceased and no treatment was required. It then sets out what, on the face of the report, is Mr Tomasevic's version of disciplinary action taken in relation to him and what he says led to it. It then sets out a number of observations such as that Mr Tomasevic repeats himself. The report goes on to mention statements made in a letter sent to Dr Strauss by Principal Van Halen. These are statements about Mr Tomasevic's alleged behaviour to students and staff at the college.

Dr Strauss refers to statements such as that the behaviour was irrational in dealing with staff and students, that Mr Tomasevic was depressed and behaved in an inappropriate manner and was lacking in moderation of judgment.

[14] Dr Strauss then mentions the possibility of Mr Tomasevic having a schizoid disorder or schizo-effective disorder involving a combination of mood disorder and psychosis.

[15] He states that it is difficult to make a specific diagnosis on the basis of only one visit, but that he has no doubt that Mr Tomasevic is psychiatrically disturbed. He states that there appears to be little evidence to back up the allegations of financial impropriety. And states his opinion that Mr Tomasevic is, to a certain extent, delusional.

[16] He expresses the opinion that Mr Tomasevic needs psychiatric assessment and treatment. He says that Mr Tomasevic is unfit to be in a teaching situation and again, later in his report, that he is unfit for full time teaching duties. Dr Strauss says that Mr Tomasevic should be encouraged to have treatment and that the best person to do this is his general practitioner.

[17] He says that he would have, "no argument" if a copy of his report was sent to this general practitioner but would be, "reluctant" for Mr Tomasevic to have access to the report.

[18] I now come to Dr Strauss' application. It is convenient for me first to deal with the claim that Dr Strauss authorised or assisted the department or Mr Van Halen, to discriminate against Mr Tomasevic.

[19] Mr Tomasevic says that the department and Principal Van Halen and Dr Strauss have acted in concert to ensure that he remains suspended from teaching duties. In his particulars of complaint and written submissions on this application, he does not explain what evidence he might give at the hearing, of the complaint, to support this allegation.

[20] In oral submissions, he said that he would give evidence that Dr Strauss was known to Principal Van Halen. He said that he based this on being told at the medical examination, by Dr Strauss, that Principal Van Halen was known to him. He says that once his freedom of information request for relevant correspondence between Dr Strauss and the department is granted, he will know more about what that relationship was.

[21] He also says that the department has used the diagnosis in Dr Strauss' report as a basis for continuing his suspension from teaching duties, even though he had supplied the department with reports from his general practitioner and for other psychiatrists, stating that he did not have a psychiatric illness and that therefore no psychiatric treatment was required.

[22] Under s.98 of the Equal Opportunity Act, a person is, among other things, prohibited from authorising or assisting another person to contravene Part 3 of the Act. Part 3, among other things, prohibits an employer from discriminating against an employee by limiting the employees access to a benefit or by subjecting the employee to a detriment.

[23] Assuming for the purpose of this application only, that the conduct of the department and or Principal Van Halen, would be capable of constituting a breach of Part 3, there is nothing in the material before me, which is direct evidence or on the basis of which it will be open to the Tribunal at hearing, to infer that Dr Strauss authorised or assisted that breach.

[24] Some direct knowledge of the action that the employer proposes, after receiving the medical report, to take in relation to Mr Tomasevic is necessary before Dr Strauss could be said to have authorised or assisted that action. On the material before me, the most that can be said is that the employer has chosen to use Dr Strauss' report in a particular way. There is nothing to link this choice with Dr Strauss.

[25] This claim against Dr Strauss is therefore manifestly unsustainable. It is not curable by amendment and should be dismissed.

[26] Mr Tomasevic's second claim against Dr Strauss is that in breach of s.42 of the Equal Opportunity Act,

Dr Strauss, because of a psychiatric impairment, which he presumed Mr Tomasevic to have, treated Mr Tomasevic less favourably than he would have treated a person in similar circumstances, in respect of whom he did not presume such an impairment. This is a claim of direct discrimination. (As to these claims generally, see Equal Opportunity Act ss 7(2)(d) and 8).

[27] It is conceded on behalf of Dr Strauss that the services of a psychiatrist, such as he is, are services within the meaning of s.4 of the Equal Opportunity Act. However, it is first submitted for Dr Strauss that s.42 only applies where a person seeks services and is refused them or where there is a relationship of service provider and recipient, between the two people. I agree with this submission.

[28] Section 42(1) prohibits one person from discriminating against another, and I quote the relevant parts of the provision:

by refusing to provide ... services to the other person;

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

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

[29] Section 42(2) makes it clear that the section applies, whether or not the services are provided for payment.

[30] It is common ground that Mr Tomasevic did not, of his own accord, go as a patient to or engage or employ Dr Strauss. He went in accordance with an arrangement made by Principal Van Halen. He did not seek that appointment.

[31] Dr Strauss' medical report was provided to Principal Van Halen, not to Mr Tomasevic. This is clear from the report itself. There is no continuing doctor/patient relationship between Mr Tomasevic and Dr Strauss. There was one medical examination only, occurring on 10 August 2000.

[32] It is submitted for Dr Strauss that in these circumstances there is no service sought by Mr Tomasevic and no service provided by Dr Strauss to Mr Tomasevic.

[33] Insofar as there may have been any service, it was provided to Principal Van Halen and was a service of conducting a medical examination of and reporting on that examination to Principal Van Halen. The request for the report was made by Principal Van Halen.

[34] Since there is no relevant service provided by Dr Strauss to Mr Tomasevic, this conduct is incapable of breaching s.42. This claim is therefore manifestly unsustainable. It is not curable by amendment and should be dismissed.

[35] I do not consider that Dr Strauss' suggestion in his report that the report be made available to Mr Tomasevic's general practitioner, but not to Mr Tomasevic, turns Dr Strauss' conduct into the provision of a service to Mr Tomasevic. The report does not contain a direction that it be given to Mr Tomasevic's general practitioner. It leaves the choice of whether or not to give the report to that general practitioner, to Principal Van Halen.

[36] It is unnecessary for me to discuss whether, if I had decided that a service was being provided to Mr Tomasevic, Mr Tomasevic's claims are capable of constituting direct discrimination either in the terms of the provision of that service or by subjecting him to a detriment in connection with the provision of that service. I would however make some brief comments, pointing out the difficulties of proving claims such as these.

[37] First, this report on its face, contains a summary of statements made in Principal Van Halen's letter to the doctor, statements made at examination by Mr Tomasevic and Dr Strauss' clinical observations of Mr Tomasevic at the medical examination. A doctor, when conducting a medical examination, exercises professional judgment according to the particular case, as to how long an examination is necessary, whether further sessions are required and the relative weight to be given to documentation, what the patient tells the doctor at the examination and clinical observation of the patient. In these circumstances, there would need to be clear direct evidence or clear material which could found an inference from which it would be open to the Tribunal to conclude that the conduct of an examination and a diagnosis were based, not only on professional judgment but substantially on a presumed impairment.

[38] Second, there would be the further difficulty of showing that the doctor would have treated a patient in similar circumstances, that is, in respect of whom the doctor had the same documentation from Principal Van Halen but without the presumed impairment, better than he treated Mr Tomasevic. The comparitor is not, as Mr Tomasevic suggested, a person who voluntarily sees Dr Strauss as a patient. The comparison must be in the same or similar circumstances. Here the circumstances are that Mr Tomasevic attended an appointment, not arranged by him, but by Principal Van Halen and the medical report was to be provided not to Mr Tomasevic, but to Principal Van Halen.

[39] These difficulties suggest that the Equal Opportunity Act is not the appropriate vehicle for Mr Tomasevic's complaints against Dr Strauss. His complaints are more readily categorised as complaints relating to a professional conduct.

[40] Third, I would add that the submissions made by Dr Strauss that s.42 concerns the equality of accessibility to services rather than the level or quality of services is not accepted. The terms of a service which is covered by s.42(1)(b) may include, in my view, the level of that service or the quality of that service, as well as its accessibility.

[41] My conclusion is that the complaint in whole is dismissed. That concludes my reasons for decision.