Victorian Civil and Administrative Tribunal|2000-04-30

The application is made on various statutory bases which I will mention shortly and also on the basis that these paragraphs are beyond the scope of Mr Yim's complaint dated 31 May 1999 stated by the Equal Opportunity Commission, which I call the Commission in these reasons, to have been lodged with it on 1 June 1999 and which was referred to this Tribunal by letter from the Commission dated 9 September 1999.

For the purpose of this proceeding I treat the complaint as including a letter from Mr Yim to the Commission dated 24 May 1999. Although that letter is not included in the documentation referred to us by the Commission, it is included in the submissions made on this application on behalf of the complainant. In its terms the letter is clearly outlining Mr Yim's complaint to the Commission and is in fact followed up by the letter dated 31 May. In my view it is an integral part of the outline of his claim and it explains and amplifies that claim. On this basis, I treat it as part of the complaint.

This application raises a number of legal issues with some difficulty. Those issues cannot be understood without a brief summary of the history of earlier complaints made by Mr Yim. I first, however, deal with a preliminary issue. I then summarise the history of Mr Yim's complaints and I then deal with the major submissions on legal issues which have been made by the parties.

The preliminary issue relates to the proper interpretation of s.75 of the VCAT Act. The respondent, which in these reasons I call the State, argues that s.75 permits it to apply to have parts of the particulars of complaint dismissed or struck out. It is argued for Mr Yim that s.75 does not have this effect and only permits a summary determination of claims. Section 80, it is said, is the appropriate provision for dealing with issues concerning particulars of complaint and defence.

However, it is said for the complainant that this provision should not be used here because there is no need to make a direction concerning the particulars of complaint, either for the purpose of expediting the hearing and determination of this matter or to ensure a fair hearing of this matter. There is no need to make such a direction because the particulars of complaint are appropriately drawn.

My approach to ss.75 and 80 of the VCAT Act is this. Section 75 is headed, "Summary dismissal of unjustified proceedings". Sub-section 1 permits the Tribunal to summarily dismiss or strike out all or part of a proceeding that, in its opinion, is frivolous, vexatious, misconceived, lacking in substance or otherwise an abuse of process. On the basis that this provision gives a power to summarily terminate a proceeding or claim, the Tribunal has followed tests adopted by the Supreme Court in relation to a similar provision in earlier equal opportunity legislation. See Norman v. Australia Red Cross Society, a decision of VCAT dated 27 November 1999 and Rabel v. State Electricity Commission (1998) Vol. 1 V.R. at p.102.

The Tribunal has said that the section only applies where a case is manifestly untenable or obviously unsustainable in fact or in law. It is said that the Tribunal will not, without caution, exercise this power of summary termination of proceeding because it deprives the litigant of his or her right to have a case heard in the ordinary course.

In my view, s.75 applies to any part of a proceeding including the complaint, the particulars of complaint, the particulars of defence and witness statements, but it is directed to claims, not to drafting matters. This is clear from the section heading and also from the use of the word "dismiss" in the body of the section. Words in the document are not summarily dismissed but claims are.

So, if any document in a proceeding contains a claim which falls within the description in s.75(1), that provision can be used by the Tribunal to dismiss or strike out that claim. Sections 80 and 127 of the VCAT Act, on the other hand, are appropriate to be used where format or drafting are concerned rather than the claims themselves. Section 80 permits directions to be made or things done where necessary for the expeditious or fair hearing and determination of proceeding. Section 127 permits the Tribunal to order the amendment of a document in a proceeding.

In this case, the State claims that some claims made in the particulars of complaint are in effect statute barred or are beyond the scope of the original complaint. In my view, that is properly the subject of an application under s.75 of the VCAT Act.

I next briefly summarise the history of earlier complaints made by Mr Yim to the Commission so far as that history is relevant. By letter dated 8 February 1998 Mr Yim lodged a complaint against Wilson's Park Secondary College at which he was then a teacher. That complaint is included in the submissions made by the parties on this application.

It claimed discrimination against Mr Yim on the basis that he had chosen not to join the Teachers Union and because he was of Asian race. That is, he claimed discrimination based on the attributes of industrial activity and race. I call this complaint the first complaint in these reasons.

The allegations said to constitute this discrimination were these. That the college gave Mr Yim a maximum teaching load with no time allowance to take account of the fact that the college required him to look after computer hardware and software for teachers and students, to organise the computerised student report system including programming, communicating with teachers, data collection and assistance to teachers.

On 23 February 1998 this complaint was withdrawn. On 11 June 1998 Mr Yim lodged, with the Commission, a complaint against Wilson's Park Secondary College and the State in its capacity of the Department of Education. That complaint alleged discrimination based on race, industrial activity and also alleged victimisation. It is clear that the victimisation claim is based on the lodgment of the earlier withdrawn complaint.

The allegations said to constitute the discrimination and victimisation are these: (1) changing Mr Yim's teaching allotments without consultation; (2) the failure to allow Mr Yim reduced teaching load because of his computer maintenance responsibilities after an assurance that he would be given such a reduction; (3) the making of decisions in relation to the student reports' computerisation programme, an area in which Mr Yim was involved, without consulting him; (4) unfounded criticism of his performance; (5) unwarranted threats of disciplinary action; (6) disproportionate punishment of Mr Yim for what he alleges was a trivial incident involving a student. In these reasons I call this complaint the second complaint.

On 11 August 1998 the Commission declined this complaint under s.108 of the Equal Opportunity Act. On 14 October 1998, since Mr Yim had not required referral of the declined complaint within the period prescribed by s.108, the Commission dismissed the complaint. On 1 June 1999, Mr Yim lodged with the Commission the complaint currently before this Tribunal. I call this the third complaint. That complaint, as I said, is against the State in its capacity of the Department of Education. It claims victimisation.

The allegations in it relate to a period at or after the time of Mr Yim's resignation from Wilson's Park Secondary College and from the teaching service on 14 August 1998. The allegations are these: (1) that without informing Mr Yim or giving him an opportunity to make submissions on the matter, the State in its capacity of the Department, placed on him a restriction effectively banning him from employment as a teacher in schools of the Department except as a casual relief teacher and except with the approval of one of the departmental general managers. This restriction, it is claimed, prevents Mr Yim from getting teaching positions with the Department. It also prevents him from being registered as a teacher, a registration that would make him eligible to apply for teaching positions in non-state schools; (2) that the Department required reports from at least three principals with whom Mr Yim had worked as an emergency teacher before it would review this decision;

(3) that in August 1998 the Department commenced disciplinary action against Mr Yim and did not give him an opportunity of a public hearing in relation to that action. This third claim is in fact a summary of the material which is constituted by a number of letters and which is attached to the complaint and is gleaned from the complaint read as a whole.

I turn now to the parties' submissions. The State first submits that paragraphs 3 to 45 and 48, but principally 3 to 45, make fresh claims in respect of subject matter covered by the withdrawn complaint or the dismissed complaint; and that because of s.108(4) or because those claims are an abuse of process, they should be dismissed or struck out.

It is submitted for Mr Yim that paragraphs 3 to 45 do not make fresh claims already dealt with in the earlier complaints. It is submitted that those paragraphs are necessary to particularise all the elements which constitute the claim of victimisation. That is the claim which this complaint makes.

There is disagreement between the respondent and the complaintant as to exactly what those elements are and how they should be particularised. I deal with these submissions in order.

In my view, on their proper constructions, paragraphs 3 to 32 and 36 to 45 do more than particularise each element of the claim of victimisation in the third complaint. They allege that the State has breached the Equal Opportunity Act and then set out the allegations made in the dismissed complaint and the withdrawn complaint.

As far as the dismissed complaint is concerned, the complainant is prevented from doing this by s.108(4) of the Equal Opportunity Act 1995. That sub-section provides, and I quote, "If the complainant does not notify the Commission under sub-s.2, the Commission may dismiss the complaint and the complainant may take no further action under this Act in relation to the subject matter of the complaint".

The notification referred to is the requirement which a complainant may make that the Commission, which has declined a complaint, refer that complaint to VCAT. The requirement must be made within 60 days of the complainant receiving notice that the Commission has declined the complaint.

In my view this provision would at least prevent Mr Yim claiming the same kinds of contravention of the Act in respect of the incidents alleged in the dismissed complaint. It may also prevent him trying to re-characterise the same incidence as a different kind of contravention of the Act, for example, as a different kind of discrimination or as discrimination based on a different attribute. But it does not, in my view, prevent Mr Yim from relying on the fact that the dismissed complaint was made to found a claim of victimisation.

Under ss.96 and 97 of the Equal Opportunity Act, a claim of victimisation has two elements: (1) the victimiser must subject or threaten to subject the person victimised to a detriment and (2) a substantial reason for that conduct must be a reason specified in s.97(1).

While the incidents alleged in the dismissed complaint may have caused Mr Yim to make that complaint, it is the making or lodging of that complaint itself and not those incidents that is alleged to be the reason for the conduct which the State engaged in and which is set out in the third complaint. It is that conduct for that reason which is alleged to constitute victimisation.

When Mr Yim makes a complaint of this kind, he is not taking further action in respect of the subject matter of the dismissed complaint. This is a new claim with a new content. It is not therefore caught by s.108(4). Second, to the extent that paragraphs 3 to 32 and 36 to 45 make the same claims as in the first withdrawn complaint, those claims should in my view, be dismissed as an abuse of process. Mr Yim chose to withdraw the complaint in February 1998. He should not, more than a year later, be allowed to re-litigate it.

However, just as a dismissed complaint can be one of the elements of a claim of victimisation in the sense of being one of the specified reasons for the conduct of the respondent, so also can a withdrawn complaint. My view is consistent with what I consider to be the policy or purpose of ss.96 and 97. Those provisions, in my view, have a dual purpose.

The first purpose is to protect those who complain or allege contraventions of the Act or participate in proceedings or processes set out by the Act from being disadvantaged because of that. The second purpose is to predict the mechanisms of redress which the Act establishes from being undermined or made ineffective because people are deterred from using them because they are afraid of the disadvantages that might result.

If this second purpose is one of the purposes of these provisions, it applies irrespective of whether the complaint or allegation, which is the reason for the detrimental action, is a complaint which is either dismissed or withdrawn. The critical fact is that the complaint has been lodged.

To the extent that paragraphs 3 to 32 and 36 to 45 revived claims in the dismissed complaint or the withdrawn complaint, those claims are dismissed. To the extent that they seek to specify the elements of a victimisation claim, the particulars of complaint should be amended to make this clear. As I have said, there is disagreement between the respondent and the complainant as to what those elements are.

I have set out the two elements which I consider constitute a claim of victimisation. Of the specified reasons in s.97(1) the ones on which Mr Yim relies are those in sub-s.1, paragraphs (a) and (f). Sub-section 1(a) relates to the making of a complaint and a complaint is defined by s.4 of the Act as a complaint lodged under s.105, that is lodged with the Commission.

Sub-section 1(f) applies where the person victimised or his or her associate, and I quote, "Has alleged that any person has contravened a provision of part 3, 5 or 6 unless the allegation is false and was not made in good faith". It is to be noted that this qualification does not appear in paragraph (a).

There was disagreement between the respondent and the complainant as to what these paragraphs meant and how they should be particularised. In my view those paragraphs are not intended to cover the same things. On its broadest interpretation, paragraph (f) would be capable of covering the making of a complaint as well as the making of allegations not included or not yet included in a complaint.

But if that was so paragraph (a) would be surplus and we must presume that Parliament does not use language which is meaningless or surplus unless it is very clearly otherwise. Here, I have noted already that the paragraphs are in very different form. I do not think that paragraph (a) is a surplus provision. I do not think in fact that paragraph (f) is directed to the lodgment of the complaint. That is covered entirely by paragraph (a).

Paragraph (f) is directed to non complaint allegations, for example allegations made directly by an aggrieved employee to his employer rather than to the Commission. Viewed in this way, paragraphs (a) and (f) do not overlap. Also viewed in this way, there is no requirement for a complainant to establish that the allegations in a complaint are not made falsely or are made in good faith. That requirement, if indeed it is a requirement, only applies to paragraph (f), not to paragraph (a).

This view is consistent in my view with the wording of paragraph (a) and (f) and also with what I have said about the purposes of ss.96 and 97. One of those purposes is to protect the mechanisms established by the Act for giving redress. On the other hand, where there are only allegations as distinct from a complaint, one of the aims of the Act is to ensure that those allegations are made in good faith and are in fact true.

Here the only reason alleged by Mr Yim to found the claim of victimisation is what he says in his complaints to the Equal Opportunity Commission. I would add, although it is unnecessary for me to decide this, that it may be that the somewhat unusual form of s.97(1)(f) means that as far as non complaint allegations are concerned, it may be necessary to allege that those allegations were not made falsely or were in good faith. The word "unless" used in the paragraph may then have the effect that the burden of producing evidence of the falsity or bad faith of the allegations would be on the respondent but that the ultimate burden of establishing that the allegations were indeed not false and were made in good faith would still be on the complainant.

As for a similar conclusion but in respect of a different statutory provision, see Keeffe v. McInnes (1991) Vol. 2, V.R. at p.235. Paragraphs 3 to 32 and 36 to 45 should in my view, apart from their dismissing in relation to the repetition of claims in the earlier complaints, be amended simply to recite that the earlier complaints were lodged, what happened to them in the sense of their being withdrawn or dismissed and to recite the fact that those complaints form in the complainant's allegation a substantial basis for the respondent's conduct which followed.

Paragraphs 34 and 35 of the particulars should be retained because in my view they deal with an issue raised in the third complaint and not in the first or second complaints. I now deal with Mr Yim's application to amend the complaint to include matters dealt with in paragraphs 24, 27, 33 to 35 and 48 of the particulars.

The respondent opposes this application. I have already dealt with paragraphs 34 and 35 of those particulars. I refuse the application to the extent that it relates to paragraphs 24 and 27. As I have said, in my view these paragraphs raise afresh claims included in the dismissed complaint and in the withdrawn complaint. That leaves paragraphs 33 and 48.

For Mr Yim it is argued that s.127 of the VCAT Act gives a broad discretionary power to the Tribunal to order the amendment of any document and that this includes this complaint. This Tribunal's decision in Blaney v. National Australia Bank Ltd, a decision dated 23 June 1999 by His Honour, Judge Davey, is relied on to support this argument.

In that case His Honour permitted a complaint to be amended to include an allegation of age based discrimination. For the State it is argued that the scheme of the Equal Opportunity Act is that a complaint is lodged with the Commission, is investigated by the Commission which then decides whether to decline it or to consider whether it is conciliable.

If the Commission does not decline the complaint and considers it conciliable, the complaint is referred to the Chief Conciliator for conciliation. The complainant has the option, within a specified time, to refer to VCAT a complaint which the Commission declines, considers non conciliable or which is referred to conciliation in which either the Chief Conciliator considers it non conciliable or unsuccessfully attempts to conciliate.

It is the referral of the complaint which invokes the original jurisdiction of VCAT. In my view this correctly summarises the scheme of the Equal Opportunity Act and the VCAT Act in relation to the lodgment and processing of complaints by the Equal Opportunity Commission and the invocation of VCAT's jurisdiction to hear and determine complaints. As to this see general Equal Opportunity Act ss.104 to 117 and VCAT Act ss.40, 41, 43, 44 and 69.

The State goes on to argue that VCAT can only hear what is referred to it and what has already gone through the Commission's processes under the Equal Opportunity Act. It cannot add to the complaint matters which have not been the subject of those processes. To do so, it argues, would be inconsistent with the Equal Opportunity Act and s.159 of the VCAT Act which provides that in the event of inconsistency between the relevant enabling enactment, here the Equal Opportunity Act, and the VCAT Act. The enabling Act prevails.

The State argues that this question was not fully argued before His Honour, Judge Davey, in Blaney's case and that I should not follow that decision. I do not agree with this submission. The power to amend a document in a proceeding given by s.127 of the VCAT Act is discretionary and unrestricted. It does not say that it does not apply to complaints.

Indeed, it would be strange if it said this. If it did not apply to complaints and other documents which invoke the Tribunal's jurisdiction, it would mean that the Tribunal's task would be difficult. From the point of view of the equal opportunity jurisdiction it would mean, for example, that the Tribunal would not be able to consider complaints of continuing discrimination insofar as that discrimination was alleged to continue after the lodgment of the complaint. It would mean that the Tribunal would not be able to add a new characterisation of facts already in a complaint, even if that characterisation was clearly capable of being pleaded on the facts and even if in fact the parties consented to that amendment.

It would make it difficult for the Tribunal to determine all relevant issues in dispute between the parties. I would not adopt such a restricted construction of s.127 without clear Parliamentary authority. Nor do I consider that s.127 is inconsistent with the scheme of the Equal Opportunity Act. Each Act deals with a different part of a continuous process. The process from lodgment of the complaint to its resolution or determination.

When a complaint is lodged, it is likely that the complaint will not be in detailed form and will not comprehensively characterise the claims. It is understandable that at the Tribunal stage a power to amend should exist so that issues can be refined and clarified and the parties can bring to the Tribunal all the issues in dispute. I therefore agree with the approach taken by His Honour, Judge Davey, in Blaney's case.

The power to amend under s.127 is discretionary. In exercising that discretion the Tribunal may take into account whatever factors it considers relevant. These may include factors similar to those which courts take into account in determining whether or not to amend claims. But they may also include factors that have to do with the objectives of the relevant enabling enactments.

Here the paragraphs sought to be included in this complaint are within the boundaries of the four corners of the complaint itself. They allege exclusion of Mr Yim from the senior management group and from the computer reporting task which he had previously undertaken after his return to work in June 1998. They also allege the State did not reply to his defence in relation to disciplinary action at the time of his resignation from the Wilson's Park School in August 1998.

These are similar to other detriments which he alleges already in his complaint. As a whole, the complaint, it seems to me, is alleging continuing victimisations. These allegations are part of this alleged continuing pattern of conduct. The allegations have been made at an early stage of the proceeding before the Tribunal in the particulars of complaint. The respondent has had notice of them for some time.

I am not satisfied that the prejudice to the State which might result from allowing this amendment is of a kind that would make me in fact decide to refuse it. In addition, I note that the objective of the Equal Opportunity Act, or one of them, is to give redress to the victims of discrimination and sexual harassment and it seems to me that to allow an amendment of this kind promotes that objective.

In addition, the allegations which I am now considering, the ones in paragraph 33 and 48, are not matters raised in the dismissed complaint or the withdrawn complaint. On this basis I grant the application to amend in respect of paragraphs 33 and 48. I would add, however, that it seems to me that paragraph 33 needs further particularisation to give further detail of the liability alleged under that paragraph and that paragraph 48 needs further particularisation to give further detail of the alleged failure to reply to documents of defence.

My conclusion then is that the claims in the paragraphs I have mentioned are dismissed, that the application to amend the complaint is granted in respect of the paragraphs I have also mentioned in the order and that the complainant be given liberty to file and serve amended particulars of complaint.

I have also given liberty in the order to file amended particulars in defence because of the changes that my decision will make to the particulars of complaint. I set a new timetable for the rest of the proceeding. Finally, I have reserved costs and given the parties liberty to apply.

Civil and Administrative Tribunal Act 1998

Opportunity Act 1995

Yim v State of Victoria [2000] VCAT 821 (30 April 2000)

Yim v State of Victoria [2000] VCAT 821

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Yim v State of Victoria [2000] VCAT 821 (30 April 2000)