Pursuant to sections 80, 109 and 127 of the Victorian Civil and Administrative Tribunal Act 1998 this Tribunal directs and orders -

1. That the Applicant's application to amend the particulars of complaint is refused.

2. That the Respondents' costs in relation to today's directions hearing are reserved. The Respondents may apply for those costs on reasonable notice to the Tribunal and the Applicant.

1. I now propose to rule in this matter and my ruling is that the complainant's application is refused. I will briefly explain my reasons.

2. The position is this. In this matter particulars of the complaint and defence have been lodged and witness statements have also been filed by all the parties. What is only left is answering material from the complainant and then the hearing will follow.

3. At this stage application has been made to amend the particulars of complaint. The amendments concern seven new allegations of sexual harassment. The complaint itself is one of sexual harassment. The seven new allegations concern alleged touching, comments and similar matters. The allegations relate to a period from at the earliest, December 1996 to at the latest, January 2000. The complaint itself relates to two allegations both allegedly occurring in January 2000. The respondents did not object to a new allegation being included in the original particulars of complaint which also concerned an incident allegedly occurring in January 2000. The complaint did not refer to the seven, as I may call them, new allegations which are sought to be included in the amended particulars of complaint, nor did the original particulars of complaint.

4. The respondents have answered the original allegations, both in their particulars of defence and in their witness statements and now object to leave being given to amend the particulars of complaint.

5. The argument for the complainant is that this is in effect a pattern of continuing sexual harassment and the pattern commences in late 1996 and continues until January 2000. The complainant is arguing that the Tribunal ought to be able to deal with the whole continuum of alleged sexual harassment, rather than just the last few incidents of it. The argument is that the delay is excusable and understandable, first because at the time of all of the sexual harassment, the complainant continued in employment with the respondents and it was therefore extremely difficult, if not impossible, for a complaint to be made at this time because of the threat that this would involve to the employment situation. The second reasons are the effect of this course of conduct on the complainant, which made it difficult because of a medical condition involved, for a complaint to be made, and also the question of complainants often denying that these matters occur, in order simply to be able to go on with their lives in any meaningful way.

6. The respondents oppose the application basically on the ground that it is made too late. The material was not included either in the original complaint or the original particulars of complaint and it is now far too late to include these new material. It would very probably involve the postponement of the hearing. It would involve considerable extra work on the part of the respondents who would then have to answer allegations which they have not yet had the opportunity to answer.

7. In my view the position is this. The scheme of the Equal Opportunity Act is that complaints are lodged with the Equal Opportunity Commission. There is then an investigation by the Commission to determine whether or not to decline the complaint or to send it to conciliation. There is then a scheme by which complaints are sent to conciliation and there is a scheme by which if a complaint is declined by the Commission or cannot be conciliated successfully, a complainant has a right to refer that complaint to this Tribunal. There is no doubt that the Victorian Civil and Administrative Tribunal Act 1998 ('the VCAT Act') confers a power on the Tribunal to amend documents before it, and those documents include the complaint itself and also that would cover the filing or amendment of particulars of complaint.

8. There have been some recent cases. One that springs to mind is Kay v Bracks and ors [2000] VCAT 2304. Another is Yim v State of Victoria [2000] VCAT 821. These have looked at the relationship between VCAT's power to amend documents and the Equal Opportunity Act scheme. What the Tribunal has said in summary is this. The power to amend documents given to VCAT must be read in the light of the enabling enactment which confers jurisdiction on the Tribunal in the anti-discrimination area. That enactment is the Equal Opportunity Act. The implication of the scheme of that Act on that power of amendment of documents, is that a fresh series of allegations which are not in the original complaint, and cannot in some way be extrapolated from it, ought not to be brought in by amendment at the VCAT stage, but ought properly to be the subject of a fresh complaint.

9. There are some cases where the Tribunal has allowed a complaint to be amended and further particulars to be filed, where it is simply a question of re-characterising in some legal way, facts that are already in the original complaint, or where the original complaint contains an allegation of a continuing pattern of contravention of the Equal Opportunity Act and all that is being done is to add to that pattern. But this is not the case here. Here we have a complaint which alleges two incidents. There is no objection to the addition of a third incident, which is in effect, treated as part of the first two. What are contained in the new seven allegations are matters that are alleged to have occurred prior to January 2000 and in fact for some years before that.

10. There is no clear allegation in the original complaint that what is said there is the culmination of a pattern of alleged breach of the Equal Opportunity Act. So what is really being sought in my view is to turn this complaint from its current status into something quite different- in other words, into a complaint relating to a pattern of conduct with many instances, most of which were not included in the original complaint. On that basis it seems to me inappropriate to amend the particulars of complaint and the complaint itself to include those fresh allegations at this stage. There is nothing to prevent the complainant from making those fresh allegations to the Commission in the form of another complaint.

11. As far as the question of delay is concerned, the reasons given for the delay in making allegations of sexual harassment, have I think, great force and they will be matters which the Commission no doubt would consider, if a fresh complaint is lodged. But it is not for me to consider these here because I refuse leave to amend the particulars.

12. As far as the witness statements on behalf of the complainant which deal with the fresh allegations are concerned, it seems to me best to leave until the hearing, the question of what, if any, relevance those matters might have to the allegations of breach of the Equal Opportunity Act which will then be before the Tribunal. Remembering that there will only then be in effect, three alleged breaches of that Act which will be before the Tribunal. The question would seemed to me to be whether prior matters have any relevance to those alleged breaches. Of course the prior matters could not be the subject of findings of breach of the Equal Opportunity Act, not in this proceeding, although whether there is any possible relevance as to credit will depend upon whether credit is an issue.

13. But in my view, this particular application should be refused and the matter should go on for hearing in accordance with the Tribunal's previous direction.