1. In the section headed "Application details", Mr Yianni:
   • (a) ticked the box for "parental status or status as a carer" when asked to choose which attribute(s) applied to his discrimination claim and added by hand the words "not allowed to protect my children"
   • (b) ticked the box for "Provision of goods and services" when asked in which area the discrimination occurred, crossed out the box for "Local government" and added by hand the words "State government"
   • (c) ticked the box for "Authorising or assisting discrimination"
   • (d) stated that this occurred at his home on 31 July 2012, and
   • (e) explained that he delayed lodging his application because he "did not know we had a Human rights commission in Australia - I assumed we did not need one - medical problems/stress related problems/three operations".
2. The section headed "Application details" also contains a sub-section with a heading "What happened?" and the following text:

We need to know what happened to make you think you have been discriminated against, victimised, sexually harassed or vilified. Please tell us:

• What happened;
• Why you think it is discrimination, victimisation or vilification;
• What happened each time;
• Who was responsible for each thing that happened and what their relationship is to you.

If you are making an application alleging discrimination, it is important to explain how you were discriminated against because of the attribute(s) you have selected above.

I did not want a smart meter on my property. I told Jemena in writing. Jemena wrote back "it is Mandary. There is no law or legislation saying that you must have a smart meter, Minister confirms that. I know from experience (being an Engineer of 40 years in this field) that Electro Magnetic Radiation (EMR) in the range of 2.4Ghz will produce cancers and other medical problems, in the short and longer terms, especially in children. I wrote back using a figure of speech "If I get mad enough I will out a bullet in the installer. In simple terms Piss off I will not let you hurt my Children. Jemena came with the Police and installed the smart meter, then disconnected my power from the pole.

I as parent I have been denied the right to protect my children, from radiation that could do my children harm. (About one in ten people will have some medical problem, in children it will be much higher.)

The police were used to force a smart meter on my property allowing my children possible harm. "child abuse"

The Government confirms that smart meters do make people sick "quote'... "there is no substantial evidence that smart meters......" HE did not say there is no evidence. How do you define" substantial"? The government now by allowing a device that can cause my children to get sick that is Child Abuse.

1. I am not allowed to protect my children "as a parent I have absolute right to protect my Children under all conditions"

(God in the Bible did not Abraham to hurt his child. The Bible is the basis of our Law, and I am not allowed to protect my children)

2. The police were used "not to allow me" to protect my children, and I was arrested.

3. Jemena allowed a dangerous product to be installed against my expressed wishers, in writing.

4. The government knew about my situation and did nothing, expect write to me saying "how good they are." I can therefore say Government endorses Child Abuse.

5. Having my power disconnected in the middle of winter, and still no power, two years later. (with two children with no power for heating, if that is child abuse I do not know what is.)

Note: I can prove that smart meters are dangerous. I have written to every member of Parliament, and every else (registered mail) and asked these questions. NO replies directly to these questions as yet.

Who takes responsibly if my children get Brain cancer or other medical problems?

Who takes responsibly if my children dies in a house fire.[1]

1. Under the sub-section that asks, "How has this affected you? What loss or harm have you experienced because of what happened to you?", Mr Yianni stated:

No electricity since July 31 2012 - loss of al food in fridge/freezer - stress personal - stress in my family - due to no electricity. Fell over and smashed right wrist/ 30 operations so far possibly more - loss of income - right hand finger numb due to fall - no respect for Governments (Labor/Liberal).

1. Under the sub-section that asks, "What kind of outcome do you want to resolve your dispute", Mr Yianni stated:

Prosecutions against Jemena - Police, Government so this will not happen to any other person - private companies / police / government - have no right to hurt any person for profit - compensation for loss of income and medical problems.

1. The application was accepted by the Tribunal as an application made under the Equal Opportunity Act 2010 (the EO Act).

10 The respondents each applied for orders summarily dismissing or striking out Mr Yianni's claim against them (the respondents' applications).[2] They also filed and served submissions in support of their applications. All of the applications were listed for hearing on 3 December 2014.

1. Mr Yianni filed and served a submission in response to the respondents' applications and submissions. The submission began:

1 I am not here to complain about not having any electricity, for over two years now, although it does make life very hard. Nor anything much with the EO Act (emphasis added). The way I was disconnected is a concern. Over 30% of the people, in this world, have no electricity, that is not a human right.

2 Not to be able to protect my children form harm (any Harm) is, a basic "Human Right."

3 My main objection is not being allowed to protect my children. From a product that I know has the potential to do my children, and my self, harm in the short and longer term, and that I hope to prove. I can produce over 140 medical papers on possible health effects of radiation on children and people, some of these are from military sources.( If I am allowed to use them)

4 The First respondent, The Second Respondent and The Third Respondent have allowed a product to be put on to my property by force that has the potential to do harm to my children and my self, against my specific request in writing not to do so. As a parent I was not allowed to protect my children and to use force against any person who I consider to be a threat, to my children. Any thing that can hurt my Children (any Children) is "Child Abuse". There is no law anywhere saying I am not allowed to protect my children even using force. (If there is I would like to know about it.)

5 Society, and The Government and The Police expect me to do my upmost to protect my children, any way I know.

6 Charter of Human Rights and Responsibilities Act. 2006 No.43 of 2006

Section 9 Right to life

"Every person has the right to life and has the right not to be arbitrarily deprived of life."

Section 17 Protection of families and children

{1) "Families are the fundamental group unit of society and are entitled to be protected by society and the state."

(2) "Every child has the right, without discrimination to such protection as is his right other best interests and is needed by him or herby reason of being a child."

There is a high change that smart meters can deprive me and my children of life. This in the form of death due to radiation health problems over a long period of time, much like smoking and asbestos. The risk is real. [3]

1. Paragraphs 10 to 89 of Mr Yianni's submission relate to his claims that smart meters are dangerous, he is protecting his children by refusing to allow the smart meter to be connected at his property, the Advanced Metering Infrastructure program is illegal and he is not required to have a smart meter installed at his property. Mr Yianni also attached a large number of documents in support of these claims to his submission.

1. At the start of the hearing on 3 December 2014, I explained the nature of, and summarised the reasons for, the respondents' applications. I also explained that under s 75 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act), I could summarily dismiss or strike out Mr Yianni's application if I were of the opinion that his claim was frivolous, vexatious, misconceived or lacking in substance or otherwise an abuse of process.

14 In particular, I explained to Mr Yianni that I was not going to hear any evidence in relation to his claims about the dangers of smart meters because the Tribunal was required to assume that Mr Yianni could prove these allegations when considering the respondents' applications. I explained that Jemena had made its application because it contended that even if Mr Yianni could establish that it had discriminated against him under the EO Act, s 75 of that Act provided it with a complete defence[4] and that the second and third respondents had made their applications because they contended that Mr Yianni's claim did not contain any allegations that they had breached any provisions of the EO Act. I did this to assist Mr Yianni, who was an unrepresented party, to understand the purpose of the hearing, how it would proceed, the legal bases for the respondents' applications and how he might respond to the respondents' submissions in accordance with my obligations to conduct a fair hearing.[5]

1. Mr Yianni responded by stating that he was only making claims under the "Human Rights Act", which I understood to mean the Charter of Human Rights and Responsibilities Act 2006 (the Charter), and that he was not making any claims under the EO Act. He also stated that he had only read the EO Act once but could not see how his claims came under it. Mr Yianni said that he had not understood that he was making a claim under the EO Act when he made his application to VCAT.

1. Counsel for the respondents made oral submissions to the Tribunal following Mr Yianni's statement that he was not making a claim under the EO Act 2010.
2. The respondents submitted Mr Yianni's application should be struck out under s 75 of the VCAT Act because:
   • (a) The Tribunal only has the power to hear and determine applications made by a person entitled under an enabling enactment to make an application in accordance with s 67 of the VCAT Act[6] or if a matter has been referred to the Tribunal under an enabling enactment in accordance with s 69[7].
   • (b) Whilst the EO Act is an enabling enactment that would give the Tribunal jurisdiction to hear the claim, Mr Yianni is not making a claim under the EO Act.
   • (c) Mr Yianni's only claim is made under the Charter, which is not an enabling enactment under which jurisdiction is conferred on the Tribunal.
   • (d) The Tribunal therefore does not have jurisdiction to hear and determine Mr Yianni's application.
3. Mr Yianni did not disagree with any of the submissions made by counsel for the respondents and agreed that it appeared that he had to make his claim in the Supreme Court of Victoria if he only wanted to challenge the lawfulness of the respondents' actions under the Charter.

1. The Tribunal is a creature of statute and its jurisdiction "derives entirely from statute".[8] The Tribunal has no inherent jurisdiction.[9]
2. Further, under s 39(1) of the Charter, the Tribunal only has the power to hear and determine a claim that an administrative action is unlawful because of non-compliance with the Charter if the person making the claim also has a right to seek review of that action independently of the Charter, that is, under an enabling enactment. As Weinberg JA in Director Housing v Sudi said:

In my opinion, s 39(1) cannot be invoked as the source of VCAT's power to engage in collateral review on Charter grounds. There are two reasons for this. First, as is plain, the section does not confer upon VCAT any power of judicial review. Secondly, the section does not expand any power of collateral review that VCAT might have under ordinary common law principles.

Indeed, it can be argued that the legislative intention disclosed by s 39 is that Charter unlawfulness can be relied upon as a ground in - and only in - a proceeding the object of which is to seek 'relief or remedy in respect of an act or decision of a public authority on the ground that ... [it] was unlawful'. That would, by definition, confine such relief to a direct challenge before VCAT, and would exclude any possibility of collateral review.[10]

SECTION 75 OF THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL ACT 1998

21 The Tribunal has a discretion under s 75 of the VCAT Act 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 s 75.[11] In Norman v Australian Red Cross Society, 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.[12]

1. A summary dismissal or strike out order should be made only in the clearest of cases and certainly should not be made where the outcome of a proceeding depends on any disputed question of fact.[13] Nevertheless, the power is not reserved only for the clearest of cases and it is properly to be exercised where argument, even of a very elaborate kind is necessary to demonstrate that a particular claim is groundless.[14]
2. For an application under s 75 to be successful, the bar is high. If the Tribunal is not satisfied that a claim is obviously hopeless or bound to fail then 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.

1. I am satisfied that Mr Yianni's claim, which he clearly stated is made solely under the Charter, is obviously hopeless or bound to fail because the Tribunal lacks jurisdiction to hear his claim for the reasons set out in paragraphs 19 and 20 above. Mr Yianni's claim is therefore clearly misconceived and lacking in substance for the purposes of s 75 of the VCAT Act.
2. Accordingly, I agree with the submissions made by counsel for the respondents that Mr Yianni's application should be struck out under s 75 of the VCAT Act.
3. For these reasons, I ordered that Mr Yianni's application be struck out under s 75 of the VCAT Act.

[1] This quote is an exact transcript of Mr Yianni's claim in this sub-section without any corrections to spelling or grammatical errors.

[2] Jemena and the State of Victoria sought orders under ss 75(1) and 76 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act). Victoria Police only sought the orders under s 75 of the VCAT Act. The State of Victoria and Victoria Police also sought orders that they cease to be a party to the proceeding under s 60A(1) of the VCAT Act.

[3] This quote is an exact transcript of Mr Yianni's claim in this sub-section without any corrections to spelling or grammatical errors.

[4] S 75 of the EO Act provides that a person may discriminate if the discrimination is necessary to comply with, or is authorised by, a provision of an Act or an enactment (other than the EO Act or an enactment under the EO Act).

[5] Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100, Downes v Maxwell Richard Rhys & Co Pty Ltd (In liq) [2014] VSCA 193.

[8] Director of Housing v Sudi [2011] VSCA 266 (Sudi) at [19] per Warren CJ.

[10] Sudi [281]-[282] per Weinberg JA.

[11] The cases include the following: State Electricity Commission of Victoria v Rabel & Ors [1998] 1VR 102, 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.

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

[13] Zeqaj v Victoria Police (Human Rights) [2013] VCAT 728

[14] General Steel Industries Inc v Commissioner for Railways NSW [1964] HCA 69; (1964) 112 CLR 125, 128-30 per Barwick CJ.