1. Section 75(1)(a) of the VCAT Act states that, at any time VCAT may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion is frivolous, vexatious, misconceived or lacking in substance.
2. The principles that guide VCAT when considering an application for summary dismissal are well established. VCAT should exercise caution before summarily dismissing a proceeding because such action will have the effect of depriving a litigant of the opportunity to have their case decided in the ordinary course. This is of particular importance where applicants are self-represented.
3. VCAT's role in determining an application under s 75 is not to examine the evidence relied upon by an applicant but to proceed on the basis that an applicant will be able to prove all the allegations made in the claim.
4. In an application under s 75, it is appropriate to assume an applicant will be able to prove each fact alleged in the claim.[3]
5. It is also established that VCAT should not order summary dismissal in circumstances where the outcome of the case might depend on findings of fact based on contested evidence.[4] In considering an application under s 75, VCAT must take an applicant's case at its highest.
6. VCAT should only make an order summarily dismissing or striking out a proceeding when satisfied that, because of one of the grounds in s 75, the case is obviously hopeless, unsustainable in fact or in law, or on no reasonable view can justify relief, or is bound to fail.
7. This includes, 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.[5]
8. Section 60A of the VCAT Act gives VCAT the power to remove a party from a proceeding if it considers the:
   1. person's interests are not, or are no longer, affected by the proceeding;[6] or
   2. person is not a proper or necessary party to the proceeding.[7]
9. The power to remove a party is discretionary and the following considerations may be relevant:
   1. an employee of the respondent employer does not need to be individually named to establish vicarious liability;
   2. that the employer accepts it will be vicariously liable if the alleged wrongful acts are proven is not, of itself sufficient to justify removal but it is a relevant factor to be considered;
   3. that removal will avoid cost in the conduct of the proceeding;
   4. that removal will avoid complexity (for example because all named respondents must be consulted in respect of all procedural matters and in the context of any settlement negotiation); and
   5. a party may also be removed where there are deficiencies in the pleading or underlying claim, including for example:
      1. assertions unsupported by allegations of conduct which if proven would indicate the person's words or actions were linked to the applicant's protected attribute;
      2. claims of unfair treatment where the causal connection between the treatment and a protected attribute is not apparent; and
      3. that an investigator was appointed to look into matters of complaint, but failed to substantiate the complaint; or
      4. that people behaved unethically or unsympathetically does not give rise to an 'open and arguable case' in the absence of a causal connection between the treatment and the protected attribute.[8]
10. Section 98(1) of the VCAT Act provides that VCAT:
    1. is bound by the rules of natural justice;
    2. is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures;
    3. may inform itself on any matter as it sees fit; and
    4. must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of the VCAT Act and the enabling enactment and a proper consideration of the matters before it permit.

1. The respondents submit the first, fifth, sixth and seventh allegations should be dismissed as vexatious, misconceived or lacking in substance.
2. They submit the remaining parts of the particulars of claim should be struck out with leave to replead on the grounds they are misconceived or lacking in substance.
3. The respondents submit the first allegation is fundamentally defective because:
   1. it proceeds on an assumption that a number of separate acts by a number of different individuals can accumulate and be attributed to the first and/or fourth respondent;
   2. the particulars the applicant relies on to establish causation[9] - that is, to show that the alleged detriment caused to the applicant was because of his disabilities - are matters from which the applicant seeks to infer causation but do not disclose a tenable foundation for the inference sought;
   3. as a result, the applicant seeks to meet the causation requirement on a tendency, coincidence or system basis that is misconceived; and
   4. the applicant seeks to impermissibly aggregate the knowledge of certain school staff and other employees of the first respondent as proof of the state of mind of the first and fourth respondents.
4. The respondents submit that the fifth and sixth allegations are fundamentally misconceived because they propose requirements or conditions that are not facially neutral, noting that the fifth allegation refers to the applicant's behaviours of concern.
5. The respondents submit the seventh allegation is misconceived because the conduct alleged - being the failure to adequately deal with complaints made on behalf of the applicant - cannot be found to be discrimination in the areas of education,[10] the provision of services[11] or any other area under the Act.
6. The respondents submit the remaining elements of the particulars of claim should be struck out with leave to replead because those elements of the particulars of claim are materially deficient as they do not specify the applicant's disability and symptoms of disability and refer to vague terms, such as the applicant's 'difficulties', that cannot be properly responded to.

1. The respondents submit that because the conduct of the second and third respondents only relate to the seventh allegation, they should be removed as parties because VCAT does not have jurisdiction to hear the seventh allegation.

1. The applicant relevantly disputes that the first allegation should be struck out because it proceeds on an assumption that a number of separate acts by different individuals can accumulate and be attributed to the first or fourth respondent because:

1. the first respondent is vicariously liable for all its staff; 2. in Kaplan v State of Victoria,[12] Federal Court of Australia proceedings against the first respondent in an unrelated matter, Chief Justice Mortimer: 1. found systematic discrimination by numerous individuals, through systems, omissions and a discriminatory culture; 2. drew inferences about the reasons for conduct from both direct and circumstantial evidence; and 3. noted 'that said, some realistic latitude in how allegations are expressed needs to be given in factually complex discrimination cases, which ... tend to involve a cause of action relying heavily on inference. The respondent did not take an overly pedantic approach in this proceeding, which was appropriate';[13]

1. VCAT should take the same approach in assessing both direct and circumstantial evidence in deciding whether discrimination has taken place;

1. under ss 8 and 10, the motive of a discriminator is irrelevant, as is whether that person is aware of the discrimination or considers the treatment unfavourable; 2. the first respondent has been named as a respondent to direct discrimination claims in VCAT proceedings for many years, without objection; 3. in Austin Health v Tsikos,[14] the Court of Appeal found that ss 8 and 10 establish that VCAT is not precluded from making a finding of unintentional discrimination or unconscious bias if such a finding is open on the evidence in a particular case; and 4. the applicant is entitled to make the allegation not only in terms of where responsibility lies for the actions of individuals working for large organisations without the requirement of the knowledge of the head of the organisation but also in terms of systemic discrimination based on an accumulation of acts and omissions of a number of individuals over a long period.
2. The applicant submits that the fifth and sixth allegations should not be struck out as proposing conditions or requirements that are not facially neutral because:
   1. where a requirement or condition refers to an individual's disability or particular needs, that requirement or condition can continue to be facially neutral;
   2. the reference in the fifth allegation to behaviours of concern is a reference to the behaviours of concern that may be exhibited by any of the students at the school.
3. The applicant submits that the seventh allegation should not be struck out because:
   1. the express exclusion of 'education or training in an educational institution' in the definition of 'services'[15] does not preclude a finding that an educational authority may otherwise provide services to a child with disabilities and/or their parents;
   2. the respondent provides bus services, nursing services and basic medical services to students, and arranges student support groups for students and their parents, which all provide a benefit to the student and their families;
   3. these services are not an inherent part of education or training and can be accepted or declined on behalf of the student by their parents;
   4. parents of a student have a relationship with the school separate to the direct teaching of their children;
   5. the first respondent's complaint handling and investigation processes are also a service provided to students and their parents;
   6. it is not relevant that the respondents have statutory obligations under the Child Well-being and Safety Act 2005 (Vic) (CWBS Act) that govern the conduct of complaints because those statutory obligations were not exercised by the first or fourth respondent in relation to the applicant;
   7. the issues raised about the applicant being subjected to physical violence and restraint, and resulting psychological deterioration, are not matters related to the respondent's statutory obligations under the CWBS Act;
   8. the first respondent's policy guidelines about its complaints processes are all about complaints made by parents and, in this case, the applicant's mother made a complaint, requested an investigation and was able to choose whether she or the applicant spoke with the investigator and whether to consent to employees of the first respondent speaking with other organisations to which she had made complaints;
   9. investigations conducted as a result of a complaint are of benefit to the student and the parents of the student who have made the complaint;
   10. the provision of education to a student as a whole constitutes a service to parents, given that it is a service they can withdraw from at any time; and
   11. if a number of a school's interactions with parents were not services, such as allowing attendance at a school concert, parent teacher interview or on the school grounds or allowing a parent to be a member of the school council or member of a student support group, then schools would not be prevented from refusing those services to parents on the basis of their race, religion or disability.

1. The applicant submits the second and third respondents should not be removed from the list of parties because the seventh allegation should not be struck out.

1. In reply, the respondents submit that the applicant's arguments about why the first allegation should be allowed to remain as pleaded should not be accepted because:

1. the applicant claims they are alleging the first and fourth respondents are vicariously liable for the actions and conduct of staff at the school but the allegation is not pleaded under s 109;[16] 2. Kaplan does not assist the applicants because: 1. the findings against the State in that decision were based in vicariousliability; 2. the test of causation applied in that decision is founded on differential treatment[17] but there is a different test of causation under the Act;[18]

1. the applicant's case for causation on a systems or tendency basis in claims similar to these has been rejected by the Federal Court of Australia;[19] and

1. the allegation as pleaded has 'a state of mind' at its heart and so specifying the discriminator is directly relevant to the question of causation, where different principles for attribution apply to the State from those that apply to corporations.
2. The respondent pressed its submission that the seventh allegation is not within jurisdiction because:
   1. the transactions for which the school received payment and the respondent's policies and procedural documents referred to by the applicant are all incidental to the applicant's education; and
   2. the authorities relied upon by the applicant can be distinguished, principally because they are decisions made before the amendment to the definition of 'services' in s 4 to expressly exclude educational training in an educational institution.

1. I find as follows in relation to each of the challenged allegations and the consequent removal of parties.

1. I find that the first allegation cannot remain pleaded in its current form because:
   1. it is inherently a claim that the first and fourth respondents are vicariously liable for a range of acts by a range of individuals, some identified and some not (alleged conduct), but is not pleaded by reference to s 109;
   2. it does not address the necessary causation element for a viable claim in relation to the alleged conduct where the evidence of the alleged conduct[20] is predicated on inferences arising from a range of circumstances without identifying whose state of mind should be inferred as allowing the alleged conduct to occur because of the attribute;
   3. while the motive for or prior knowledge of alleged discrimination is not a prerequisite for establishing direct discrimination under the Act, it remains necessary to plead specifically for whom the attribute is the substantial reason for the alleged discriminatory treatment;[21]
   4. Kaplan does not assist the applicant because the claim against the first respondent in that matter was clearly based on vicarious liability and applies a different test of causation under the relevant Commonwealth law;
   5. the applicant's reference to Austin Health is misconceived, where the reference to [116] of that decision is a quote from the judge at first instance but the Court of Appeal finds that in that quote the judge 'had in mind the conscious reasons of the particular managers, not the overarching cause of the unfavourable treatment by Austin Health' [emphasis added];[22] and
   6. the Federal Court of Australia authority referred to in the respondent's submissions (where, in those cases, allegations similar to the first allegation have been made) supports a finding, which I make, that the applicant is seeking a more broad ranging enquiry or investigation into the conduct of the first respondent than is relevant to assessing the claims of discrimination against the applicant, insofar as the pleadings require an assessment of the correctness of each of the accounts of conduct set out in [26] of the Particulars of Claim before any assessment of their relevance to the conduct of the respondents in relation to the applicant.
2. Accordingly, the first allegation is struck out.

1. Accepting the clarification from the applicant that the reference to 'behaviours of concern' not referring specifically to the applicant's behaviours, I am satisfied that the fifth allegation can otherwise remain pleaded in its current form. I am satisfied the way in which this allegation is set out, with the clarification provided by the applicant, is sufficiently different from that referred to in the authority referred to by the respondent at hearing, Abela v Victoria,[23] where the pleading specifically referred to the requirement placed on the applicant individually to access his education without the plans and supports needed to manage his disabilities.
2. However, I accept the respondent's submissions in relation to the sixth allegation. That allegation is pleaded as the requirement for the applicant attending school, either full-time or with an increase in his attendance, being that he have 'successful' days. I find that this allegation suffers from the same defect as that in Abela,[24] because it refers to criteria that the applicant himself must meet without any reference to those criteria being applied to anyone else.
3. Accordingly, I am satisfied that if the fifth allegation is repleaded to confirm the clarification provided by the applicant it will be sufficiently facially neutral for the purposes of an indirect discrimination claim. But I am not satisfied the sixth allegation can be cured in the same way and so must be struck out.

1. The seventh allegation is that the respondents failed to properly investigate complaints made by the applicant's mother. The applicant argues the complaints process is a service provided by the respondents to the applicant and the applicant's mother and so is an area of life for which VCAT has jurisdiction to hear a discrimination claim under Division 4. The applicant claims that for this reason the applicant's mother can also be an applicant to the proceeding.
2. The applicant made a range of submissions about a variety of circumstances when, the applicant argues, it might be found that a school is providing goods or services to a student's parent. While it is possible that some of those circumstances might amount to the provision of goods or services[25] by a school to a student's parent, the question for me in relation to the seventh allegation is whether the process of responding to complaints made by a parent about how a student is treated at a school can amount to a service as defined in the Act. I am not satisfied that it can be.
3. While the definition of 'services' in the Act includes 'services provided by a government department' (accepting that the respondent is a government department) it also expressly excludes 'education or training in an educational institution'. A complaint about how education or training in an educational institution is provided is a complaint about something that is expressly excluded from the definition of services. I am not satisfied that the process of dealing with a complaint about something excluded from the definition of services can itself be a service.
4. The applicant's submissions about the operation of the CWBS Act and the fact that students and their parents may receive a benefit from a complaints process do not alter my assessment that the process of dealing with a complaint about something is inherently connected with the subject matter of the complaint. Accordingly, if the subject matter of the complaint is excluded from an 'area of life' over which VCAT has jurisdiction under the Act, I am satisfied the complaints process relating to that subject matter is also excluded.
5. In light of the above, I am not satisfied the applicant's mother can be an applicant in the proceeding as the only 'area of life' relevant to her claims are the seventh allegation, which I am satisfied must be struck out.

1. As I have struck out the seventh allegation and taking into account the discretionary factors set out at [19] above, I am satisfied that it is appropriate to remove the second and third respondents from the list of parties to the proceeding.

1. The applicant has indicated they would be seeking to replead a number of the allegations in the particulars of claim.
2. The particulars of claim will require further read pleading in light of my findings set out above.
3. Accordingly, I am satisfied it is appropriate to strike out the particulars of claim in its current form and grant leave to the applicant to provide an amended particulars of claim.
4. I will direct the registry to list this application for a directions hearing as soon as possible at which orders will be made for next steps in the proceeding, including but not limited to the timing of the provision of an amended particulars of claim.

1. For reasons given above, I order that:
   1. the particulars of claim are struck out under s 75 with leave for the applicant to submit an amended particulars of claim in light of this decision;
   2. the second and third respondents are removed from the list of respondents to this proceeding; and
   3. the VCAT registry is directed to list this application for a directions hearing before me, if available, on the next available date and time.

[1] References to sections or parts of an Act are references to sections or parts of the Equal Opportunity Act 2010 (Vic) (EO Act) unless otherwise stated.

[2] In the applications, the respondents seek the removal of the applicant's mother as an applicant but the VCAT file for this matter does not record her as an applicant, which is reflected in previous orders made in this matter. The applicant's submissions about the applications proceed, in relation to the seventh allegation referred to below, on the basis that the applicant's mother is an applicant. Given my findings below about the seventh allegation, it is unnecessary for me to consider joining the applicant's mother as an applicant at this stage.

[3] Owners Corporation No. 1 PS537642N v Hickory Group Pty Ltd (Building and Property) [2015] VCAT 1638, referring to Noonan v Owners Corporation No. 2 PS409115E [2011] VCAT 1934 [17].

[4] Campagnolo v Benalla and District Football League Inc [2009] VSC 228 [41].

[5] State Electricity Commission of Victoria v Rabel [1998] 1 VR 102.

[8] Chopra v Department of Education and Training (Human Rights) [2016] VCAT 1452.

[12] Kaplan v State of Victoria (No 8) [2023] FCA 1092 (14 September 2023).

[14] Austin Health v Tsikos [2023] VSCA 82, [116].

[16] Section 109 states that if a person in the course of employment contravenes the parts 4 or 6 of the Act both the person and their employer must be taken to have contravened the provision unless the exception under s 110 applies.

[17] As set out in s 9 of the Racial Discrimination Act 1975 (Cth).

[18] As set out at s 8.

1. [19] Corey West and Bradley West v State of Victoria (unreported), JR Luxton, VID199/2020, 21 June 2023 & De Kauwe as litigation representative of Joshua de Kauwe v State of Victoria (Department of Education and Training) [2020] FCA 628 (12 May 2020).

[20] As set out in [26] of the Particulars of Claim.

[21] See Forbes v Australian Federal Police (Commonwealth of Australia) [2004] FCAFC 95, [58] and [63].

[23] [2013] FCA 832.