[2005] VCAT 2143

Pursuant to section 75, 80 and 109 of the Victorian Civil and Administrative Tribunal Act 1998 this Tribunal orders-

1. That the Respondent's application to strike out the complaint is dismissed.

2. That the parties' costs are reserved. The parties have liberty to apply for those costs on reasonable notice to the Tribunal and each other.

3. The Tribunal will list this matter for a Directions Hearing as soon as possible after written reasons have been sent to the parties unless the parties agree on appropriate consent directions.

(1) I will hand down my decision and it is that the application to strike out the complaint is dismissed, and further particulars of complaint are ordered.

(2)

I now give my reasons. The respondent, which I call "the department", has applied under s.75 of the Victorian Civil and Administrative Tribunal Act 1998, ("the VCAT Act") to strike out all claims in this complaint.

(3)

The principles applying to applications of this kind are discussed in Rabel v. State Electricity Commission, (1998) 1 V.R p.108, and Norman v. Australian Red Cross Society, (1998) 14 V.A.R at p.243. These decisions have been followed in many subsequent Tribunal cases.

(4)

They are relevantly these. The Tribunal should be cautious before summarily terminating a complaint and so depriving the litigant of a chance to have the case heard in the ordinary course. It should only do so if, for a reason set out in the section, it considers the case absolutely hopeless, manifestly untenable or clearly doomed to fail. The burden of satisfying the Tribunal as to the success or otherwise of this application is on the respondent.

(5)

The reasons raised by the respondent in this application (and which are included in s75) are that the complaint is misconceived or an abuse of process.

(6)

I have before me the written and oral submissions of the parties, the complaint and amended particulars of the complaint.

(7)

In summary this complaint is made on behalf of a child, Rebekah Turner, by her mother, Anja. It is claimed that Rebekah was indirectly discriminated against in education on the grounds of impairment by the department. The complaint was lodged in March 2005 and was referred to this Tribunal in May 2005.

(8)

I deal with the department's submissions in turn. The department first submits that the complaint is misconceived because there is no requirement or condition falling within s.9 of the Equal Opportunity Act 1995, (the "Equal Opportunity Act"). In effect s.9 provides that indirect discrimination will occur if a person imposes a requirement, condition or practice that someone with an attribute does not or cannot comply with, that a higher proportion of people without that attribute, or the different attribute, do or can comply with and that is not reasonable.

(9)

The department says that according to the initial complaint and the amended particulars of complaint, the requirement or condition claimed is that the complainant be educated without an appropriate program of assistance. The respondent says that s.9 only applies to a requirement or condition which applies, or is capable of applying, to the complainant and others without the complainant's attribute, not to the complainant alone.

(10)

Assuming but without deciding that this is what s.9 means, I do not agree that this is the plain meaning of the initial complaint and amended particulars of complaint. Both the complaint and amended particulars, after mentioning the requirement or condition I have referred to, go on to say that a majority of students without the complainant's impairment could comply with the requirement or condition. Read together it is clear that it is intended that the requirement or condition is meant to apply to the complainant and other students.

(11)

The complainant's submissions make this intention clear by clarifying the requirement or condition to be that throughout her primary education the child, Rebekah, was treated in the same way as every other student. That is, no special program of assistance was provided either for her or for the other non-disabled students.

(12)

In my view this is not incapable of being a requirement or condition for the purposes of s.9. The matter should not be struck out on this basis.

(13)

The department then submits that the complaint, to the extent that it makes claims for the period 1999 and 2000, should be struck out as an abuse of process because of delay in lodgement. The department rightly summarises the principles applying here. The primary consideration is the interests of justice. Factors which the Tribunal has taken into account, but which are not in themselves decisive, include the length of the delay; whether the delay is inordinate or inexcusable; any explanation for the delay and its reasonableness and whether the delay will prejudice the fair hearing of the case. For example, were the memories faded to such an extent that the quality of evidence is compromised, or crucial documents have been lost or destroyed?

(14)

The department says that here the delay is of more than five years between matters allegedly occurring in 1999 and the lodgement date of the complaint in March 2005. It says that this delay is too lengthy. It says that no reason or explanation for the delay has been offered.

(15)

It includes in its submissions an affidavit from the respondent's solicitor, Ms Brennan. In brief that affidavit states that Ms Brennan spoke by phone to Rebekah's past teacher at Kilsyth Primary School in 2000, Ms Veenman, and that Ms Veenman said that she had no recollection either of teaching Rebekah in 2000, or of Rebekah's parents, and has not retained her work diaries from that time.

(16)

The affidavit goes on to say that Ms Brennan also spoke by phone to Mr Thatcher, principal of Kilsyth Primary, and that he said that he had some recollection of Rebekah and her family, but that he usually relied on information from the class teacher about events in the classroom.

(17)

It is submitted for the complainant that there is nothing in this affidavit to suggest that Kilsyth or Mr Thatcher does not have records from 1999 or 2000, that the complainant's mother has documentary material from that time, that although Ms Veenman has not retained her work diary from that time it may still be possible to find that diary, and that the complainant will give evidence that she had a number of conversations with Mr Thatcher in 1999 and 2000.

(18)

I would add that it is not clear from the affidavit what were the questions to which Mr Thatcher and Ms Veenman responded. Was the whole complaint read to or explained to them? Was any photograph of Rebekah sent to them so that they had the opportunity to see and identify her by sight?

(19)

I am not satisfied on the department's material that the quality of the evidence would be so seriously compromised that the department would be unfairly prejudiced, or that a fair hearing would be impossible.

(20)

I note that the complaint also follows a pattern of conduct, albeit at different schools, but all operated by the state department. While the beginning of the pattern is in 1999 its end is in 2005, and the delay between the last alleged incident in the pattern, and the lodgement of the complaint, slight.

(21)

I note that counsel for the complainant has said that his instructions are, and I accept that Rebekah's mother is willing to give evidence to the effect, that the reason for the delay was that the complainant's mother had only recently realised that she could complain under the Equal Opportunity Act. I also note that the Equal Opportunity Commission did not decline the complaint because of delay, although it had the power to do so under s.108 of the Equal Opportunity Act.

(22)

This complaint is not trivial. It raises matters which if proved are very serious in terms of this child's education. In these circumstances I am not prepared to strike out these parts of the complaint as an abuse of process.

(23)

The department next points out what I agree are inadequacies in the amended particulars of the complaint, and what I agree need to be further particularised. The department needs to know exactly what the case is that it will have to meet.

(24)

The relevant parts of the particulars of complaint are - ● The exact nature of the requirement or condition. The department should not have to read, in combination, the amended particulars of complaint and the complainant's submissions to distil these.

● Next, the particulars of what are the complainant's impairments, including whether the key features of impairments, referred to in Paragraph 7 of the amended particulars, are said to be impairments or characteristics of other impairments, which are mentioned in Paragraph 6, and which characteristics apply to which impairments.

● Next, whether the consequences listed in Paragraph 8 of the amended particulars flow from a particular impairment, or combination of impairments, and if so which impairments and which consequences flow from which impairments.

● I should add also that there needed to be further particulars of when the impairments occurred.

(25) I do not agree with the submission made on behalf of the complainant, that the Equal Opportunity Act would permit these matters to be left vague. While a complaint itself need not contain fine detail of the allegations made, allegations need to be particularised, or specified with more particularity, as they pass through the refinement process of particulars and witness statements in the Tribunal.

(26) I accept the complainant's clarification of Paragraph 8A, (D) to (F) of the amended particulars. This is now not an issue. That clarification is that there is no discrimination claim made in respect of these paragraphs.

(27) It may also be that the department is arguing that there is something in the history of an earlier complaint, made by the same complainant against the same respondent, that would make this second complaint an abuse of process. If this is what is said I do not accept it.

(28) The most that can be said about this earlier complaint is that after referral to this Tribunal, and after the Tribunal in a directions hearing in December 2004 raised concerns about the scope of the complaint, and mentioned the possibility of lodging a fresh complaint, and a clearer complaint, with the Equal Opportunity Commission, the first complaint was struck out by the Tribunal in June 2005 without argument against this course from the parties. This happened after that fresh complaint had been lodged in March 2005.