Fire Rescue Victoria v Wheatley

Case •

[2023] VSC 269

•

24 May 2023
IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2023 00389

FIRE RESCUE VICTORIA (28 598 558 561) Applicant
v 
DONNA WHEATLEY Respondent

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JUDGE:

Gorton J

WHERE HELD:

Melbourne

DATE OF HEARING:

2 May 2023

DATE OF JUDGMENT:

24 May 2023

CASE MAY BE CITED AS:

Fire Rescue Victoria v Wheatley

MEDIUM NEUTRAL CITATION:

[2023] VSC 269

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APPEAL – Appeal against failure by VCAT summarily to dismiss or to strike out claims in proceeding brought under Equal Opportunity Act 2010 (Vic) – Whether and how sch 1 cl 18 affects the meaning of s 76 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) in claims under the Equal Opportunity Act 2010 (Vic) – Whether VCAT erred in law by applying the wrong test – Whether VCAT erred by including passages relating to an application under a section that was not pursued that appeared to be ‘cut and pasted’ from another decision – Where ss 76 and 75(1)(b) raise the same question – Whether VCAT erred by conflating or by failing to consider the sections separately – No error of law – Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 75, 76 and 148, sch 1 cl 18.

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APPEARANCES:

 Counsel Solicitors
For the Applicant Ms C Harris KC and
Dr L Hilly 		Hall & Wilcox
For the Respondent Ms S Kelly Maurice Blackburn

TABLE OF CONTENTS

A.  Introduction.................................................................................................................................. 1

B. The Tribunal’s power summarily to dismiss........................................................................... 1

C. The meaning of s 76 of the VCAT Act as varied by cl 18 of sch 1....................................... 2

C.1Different possible interpretations and the Tribunal’s approach.................................... 2

C.2The preferable interpretation............................................................................................... 5

D.  The approach of the Tribunal in this application................................................................. 8

E.  Did the Member err in law?..................................................................................................... 10

E.1Section 75(1)(a) of the VCAT Act and whether there a conflation of the two tests... 10

E.2The approach taken to the application under s 76 of the VCAT Act........................... 11

E.3The failure separately to consider the application under s 75(1)(b) of the VCAT Act 12

E.4The references to the role of the ‘adjudicator in the hearing’....................................... 13

E.4The reference to Ms Wheatley being self-represented................................................... 14

F.  Disposition................................................................................................................................... 14

HIS HONOUR:

A.  Introduction

  1. Donna Wheatley, the respondent, worked for Fire Rescue Victoria (‘FRV’), the applicant, or its predecessor the Metropolitan Fire Brigade, on short term contracts in 1998 and 1999 and then full time from 2003 until she ceased work in June 2021.  She had what appears to have been a successful career, but claims to have been sexually harassed and subjected to other forms of discrimination on numerous occasions over effectively that entire period of employment.  On 6 September 2021, she commenced a proceeding in the Victorian Civil and Administrative Tribunal (‘VCAT’ or ‘the Tribunal’) under the Equal Opportunity Act 2010 in which she seeks, among other things, compensation.[1]  FRV applied to have Ms Wheatley’s proceeding summarily dismissed, or struck out, due to delay to the extent that Ms Wheatley relied on events that took place prior to 2015.[2]  The issue in this case is whether the Member who heard the application at VCAT erred in law when she dismissed that application. 

    [1]Equal Opportunity Act 2010 (Vic) s 125(a)(ii).

    [2]I will not distinguish in these reasons between the striking out of parts of the proceeding insofar as they relate to alleged breaches that took place prior to 2015 and the summary dismissal of the proceeding insofar as it relates to alleged breaches that took place prior to 2015.  Where each individual breach is able to constitute its own cause of action, there is no practical difference.

B. The Tribunal’s power summarily to dismiss

  1. FRV’s application was brought under ss 75(1)(b) and 76(1) of the Victorian Civil and Administrative Tribunal Act 1998 (‘the VCAT Act’). Both of those sections are in pt 4 of the VCAT Act, which is headed ‘The Tribunal – general procedure’. Section 75(1) of the VCAT Act provides as follows:

75  Summary dismissal of unjustified proceedings

(1) At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion—

(a) is frivolous, vexatious, misconceived or lacking in substance; or

(b) is otherwise an abuse of process.

  1. FRV’s argument was that the proceeding was, because of the delay, an abuse of process. FRV, sensibly, did not rely on s 75(1)(a) of the VCAT Act.

  1. Section 76(1) of the VCAT Act provides as follows:

76 Summary dismissal for want of prosecution

(1) At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding for want of prosecution.

  1. The phrase ‘want of prosecution’ does not normally refer to delay before a proceeding is commenced.  Rather, it normally refers to delay that takes place after a proceeding has been commenced; that is, to a delay in the ‘prosecution’ of that existing proceeding.  An otherwise valid proceeding may be summarily dismissed if there is an inordinate and inexcusable delay on the part of the applicant in prosecuting that proceeding and that delay has caused prejudice to the respondent.[3] Here, the proceeding was commenced on 6 September 2021 and there is no suggestion that Ms Wheatley has engaged in any delays since that time. It might be thought, then, that s 76 is not engaged. However, s 58(2) of the VCAT Act provides that ‘Schedule 1 sets out variations from the general procedure for certain types of proceedings’. Clause 18 of sch 1 of the VCAT Act sets out a ‘variation’ that applies to a proceeding under the EqualOpportunity Act 2010.  It provides as follows:

18  Summary dismissal of application more than 12 months old

The Tribunal may make an order under section 76 summarily dismissing an application under the Equal Opportunity Act 2010 ... if the alleged contravention occurred more than 12 months before the application was made.

[3]Bishopsgate Insurance Australia Ltd (in liq) v Deloitte Haskins & Sells [1999] 3 VR 863, 874-875 [31]-[32] (Tadgell and Ormiston JJ).

C. The meaning of s 76 of the VCAT Act as varied by cl 18 of sch 1

C.1  Different possible interpretations and the Tribunal’s approach

  1. The effect of cl 18 of sch 1 on s 76 of the VCAT Act is not at all clear. The legislature must have intended cl 18 to ‘vary’ the power that the Tribunal has under s 76 in some manner. Clause 18 is expressed as if it were expanding the power to dismiss for want of prosecution. But the power to dismiss for want of prosecution is not dependent on any particular period of time elapsing between the alleged contravening events and the commencement of a proceeding. Certainly, there is nothing in s 76(1), read in the absence of cl 18, that would prevent the Tribunal from dismissing a proceeding for want of prosecution if the alleged contravention occurred more than 12 months before the application was made. For this reason, the power in cl 18 on its face appears to create a power that the Tribunal would already have.

  1. Accordingly, some other meaning must be given to the words of cl 18.  The problem arises, among other things, from the use of the word ‘may’.  Once it is accepted that cl 18 cannot simply be adding to the scope of the Tribunal’s power to dismiss for want of prosecution, as that phrase is normally understood, then several possibilities arise:

(a) It may be that cl 18 imposes a constraint on the exercise of the power given by s 76 of the VCAT Act to dismiss for want of prosecution. By stating that the Tribunal ‘may’ make an order under s 76 of the VCAT Act if certain conditions are met, cl 18 may by implication be stating that the Tribunal may not make such an order if those conditions are not met.

One difficulty with this interpretation is that it involves reading the word ‘may’ as if it means ‘may only’.[4]  Another difficulty is that it is hard to discern a legislative purpose for preventing the Tribunal from dismissing a proceeding that has not been properly prosecuted just because the proceeding was initiated within 12 months of the date of the alleged contraventions of the Equal Opportunity Act 2010.

[4]Cf, also, Interpretation of Legislation Act 1984 (Vic) s 45(1).

(b) It may be that cl 18 sets some form of guideline for the Tribunal for the period within which a proceeding under the Equal Opportunity Act 2010 should be brought, on the basis that if an application is not brought within 12 months of the alleged contravention occurring then the Tribunal ought to be quick to dismiss an application for want of prosecution if there is any further delay.

One difficulty with this interpretation is that it involves reading the word ‘may’ as if it means ‘ought ordinarily’.  Another difficulty with this construction is that the text reads as if it is affecting the scope of a power, rather than as if it is influencing the circumstances in which a discretion ought to be exercised.

(c) It may be that cl 18 imposes a limitation period within which a proceeding under the Equal Opportunity Act 2010 must be brought; if an application is not brought within 12 months of the alleged contravention occurring then it is liable to being summarily struck out under s 76 of the VCAT Act on the application of the respondent.

One difficulty with this interpretation is that it is inherently unlikely that a strict limitation period would be imposed by such uncertain language, or that one would be imposed without any ability of the applicant to seek to have the time limit extended.  Another difficulty is that it requires reading the variation as changing the nature of the power given by s 76 from a power to dismiss for want of prosecution to include a power to dismiss for some other reason. 

(d)  It may be that cl 18 expands the scope of s 76 so as to give the Tribunal a power to dismiss a proceeding if it is commenced more than 12 months after the date of the alleged contraventions without a requirement that there be a delay in the subsequent prosecution of the proceeding that would amount to a ‘want of prosecution’.    

One difficulty with this interpretation is that the expanded power summarily to dismiss under s 76 would either conflict with, or overlap with, the general power summarily to dismiss an application under s 75(1)(b) on the grounds that the proceeding is an abuse of process. A proceeding that is commenced after an unacceptable period of delay may amount to an abuse of process and be capable of being dismissed (or at least permanently stayed) for that reason.[5] If cl 18 does not by implication limit the scope of s 75(1)(b), then cl 18 would seem to add little. If it does by implication limit the application of s 75(1)(b), at least where the abuse of process is said to arise from delay, so that a proceeding may only be dismissed for delay generally if there is a delay of more than 12 months before it is issued, then it, again, requires reading ‘may’ as if it means ‘may only’. Another difficulty is that it requires, again, reading the variation as changing the nature of the power given by s 76 from a power to dismiss for want of prosecution to include a power to dismiss for some other reason.

C.2  The preferable interpretation

[5]Connellan v Murphy [2017] VSCA 116, [30]-[43], [54] (Priest, Beach and Kaye JJA).

  1. The Tribunal has grappled with cl 18 of sch 1 to the VCAT Act on several occasions, but, so far as I am aware, this Court has not. The Tribunal has interpreted cl 18 in the way set out in para 7(d) above. That is, it has read cl 18 as giving the Tribunal a power summarily to dismiss a proceeding commenced more than 12 months after the alleged contravention if the delay has caused sufficient prejudice to the respondent even if the complainant has promptly prosecuted the proceeding after its commencement.[6]  For the reasons set out below, I respectfully agree with the conclusion that the Tribunal has reached. 

    [6]See, eg, Kramersh v IPD Education Ltd [2014] VCAT 1439, [42], [50] (Senior Member I Proctor); Stewart v City of Yarra [2016] VCAT 1537, [47] (Member J Grainger); Casley v Australian Broadcasting Corporation [2018] VCAT 1645, [35], [35]-[37] (Senior Member B Steele). Cf Richardson v Monash University [2013] VCAT 1632, [32] (Senior Member N Megay).

  1. The legislative history to cl 18 is instructive.  Under the Equal Opportunity Act 1995, a person who alleged that they had been sexually harassed was not ordinarily able to commence a proceeding in the Tribunal but instead had first to make a complaint of sexual harassment to the Commissioner.[7]  The Commissioner, unless he or she ‘declined to entertain the complaint’, was obliged to refer the complaint for conciliation if it was reasonably possible that the complaint may be conciliated successfully.[8]  The complainant could require the Commissioner to refer the complaint to the Tribunal if the conciliation were unsuccessful.[9]  The Commissioner was also able to refer the complaint directly to the Tribunal if it raised an issue of important public policy.[10]  Importantly, however, the Equal Opportunity Act 1995 provided that the Commissioner ‘may decline to entertain’ the complaint if the Commissioner considered it to be ‘frivolous, vexatious, misconceived or lacking in substance’ or if it related ‘to an alleged contravention that took place more than 12 months before the complaint was lodged’.[11]  There was no separately identified ability in the Commissioner to decline to entertain a complaint if the Commissioner thought it an ‘abuse of process’, because, presumably, the making of a complaint was not a form of legal process. 

    [7]Equal Opportunity Act 1995 (Vic) pt 7.

    [8]Ibid s 112(1).

    [9]Ibid ss 113(2) and 117(2).

    [10]Ibid s 111(1).

    [11]Ibid 108. The Equal Opportunity Act 1995 (Vic) did not separately empower the Commissioner to decline to entertain the complaint on the grounds that it was an ‘abuse of process’, presumably because the making of a complaint was not seen as analogous to the commencing of a legal proceeding.

  1. The Equal Opportunity Act 1995 did not state any criteria that had to be applied when the Commissioner was deciding whether to decline to entertain a complaint that related to an alleged contravention of the Act that took place more than 12 months before the complaint was lodged.  The scheme, however, anticipated, in my view, the Commissioner declining to entertain a complaint if it were lodged more than 12 months after the relevant events if the Commissioner thought that the delay meant that it would be unfair on the respondent, or perhaps against the public interest, that the claim be entertained even if the claim were not otherwise ‘frivolous, vexatious, misconceived or lacking in substance’.  On the other hand, the Commissioner could not decline to entertain the complaint on the grounds that that delay meant that it would be unfair on the respondent, or perhaps against the public interest, if the complaint were made within the 12 months.  In this way, the 12-month period did not operate, as a limitation period would, to prevent someone from making a complaint after that period, but rather operated as a protected period within which a complaint could be made that would have to be entertained so long as it was not ‘frivolous, vexatious, misconceived or lacking in substance’.  To take a simple but extreme example, if an alleged wrongdoer died 363 days after the date of an alleged contravention and the complainant made a complaint on the 364th day against the wrongdoer’s employer without any proper explanation for not doing so sooner, the Commissioner may be obliged to entertain that complaint even if he or she considered it unfair on the wrongdoer’s employer to do so.  On the other hand, if the complaint were made on the 366th day, the Commissioner would be entitled to decline to entertain that complaint if the delay meant that it would be unfair on the wrongdoer’s employer to entertain it.    

  1. A new dispute resolution system was introduced when the Equal Opportunity Act 1995 was replaced by the Equal Opportunity Act 2010.  Under the Equal Opportunity Act 2010, a complainant no longer had first to make a complaint to the Commissioner but could simply commence a proceeding in the Tribunal. At the same time, pt 7 of sch 1 of the VCAT Act (including cl 18) was introduced that provided for ‘variations’ from, among other things, pt 4 of the VCAT Act for proceedings brought under the Equal Opportunity Act 2010.

  1. It seems to me in light of this history that the purpose of cl 18 of sch 1 was to give to the Tribunal the power summarily to dismiss a proceeding in circumstances where the Commissioner previously had the power to decline to entertain it. That is, it was intended to give to the Tribunal a broad power summarily to dismiss an application if the proceeding were unfair to the respondents, or perhaps contrary to the public interest, if, but only if, the proceeding was commenced more than 12 months after the relevant events. Where it applies, it has the effect of expanding the operation of s 76 to enable the Tribunal to consider not just delays following the commencement of a proceeding but also delays prior to its commencement.

  1. It follows that I do not accept FRV’s submission that the reference to the 12-month period creates some form of statutory indication, or presumption, that a delay of more than that will be unfair to a respondent and that Tribunal must have regard to that statutory presumption ‘as a significant factor in the exercise of the Tribunal’s discretion’.  Nor do I accept that such a conclusion may be drawn from the Commonwealth legislation or legislation in other states that uses different language and different time periods.  It would have been open to the legislature to impose a limitations period, perhaps with the power to extend it, on the basis of such a presumption, but that is not what was done.  The passage of more than 12 months enlivens the power to dismiss and certainly raises the prospect of prejudice, but does not create an implied limitation period that has to be overcome.

  1. This means that the power to dismiss under s 76(1) as ‘varied’ by cl 18 of sch 1 of the VCAT Act may overlap with the power under s 75(1)(b) of the VCAT Act summarily to dismiss a proceeding on the grounds that it is an abuse of process. This is because, as noted above, a proceeding may be an abuse of process if a delay in its commencement has created an unfairness for the respondent. Indeed, where the application made is to dismiss an application for delay on the grounds that the delay (whether before or after issue) has meant that a fair hearing is no longer possible, then the same test would likely be applied whether the application were made under s 76 of the VCAT Act read with cl 18 of sch 1, or under s 75(1)(b) of the VCAT Act.

  1. I am conscious that to the extent that this interpretation leads to an overlap between the operation of ss 76(1) and 75(1)(b) it is contrary to the presumption that words in legislation should have ‘work to do’.[12]  Nonetheless, in my view this interpretation accords with the presumed legislative intention gleaned from the text as a whole and the related legislative history.[13]

D.  The approach of the Tribunal in this application

[12]See, eg, Chu Keng Lim v Minister for Immigration, Local Government & Ethnic Affairs (1992) 176 CLR 1, 12-13 (Mason CJ); Attorney-General v XY [2014] NSWCA 466, [153] (Basten JA).

[13]Cf Interpretation of Legislation Act 1984 (Vic) s 35.

  1. As noted above, FRV relied on both ss 75(1)(b) and 76 of the VCAT Act but not on s 75(1)(a) of the VCAT Act. The Member in the introductory part of her reasons included several paragraphs that set out the law that applied on an application under s 75(1)(a), but did not set out the law that applied on an application under s 75(1)(b) or s 76 of the VCAT Act.[14]  Further, those paragraphs contained references to the consequences that flow if a claimant is self-represented, where the claimant in this case was represented by lawyers.  It seems likely that the Member ‘cut and pasted’ those paragraphs from another set of reasons.[15] However, there was no suggestion that the Member’s expression of the principles that applied to an application under s 75(1)(a) was wrong and there is nothing untoward in the Tribunal or a court expressing its view on a legal principle in the same language or more than one occasion. Accordingly, and although it was unfortunate that those paragraphs were included in the reasons, they do not of themselves indicate a legal error that affected the outcome. The issue must instead be determined by the law that the Member actually applied when she determined the applications under ss 76 and 75(1)(b).

    [14][2023] VCAT 12, [9]-[13].

    [15]Cf, eg, Van Niekerk v State of Victoria [2022] VCAT 1267, [11]-[16], Sitha v Toll Holdings Ltd [2022] VCAT 1336, [7]-[12] and GMW v Victoria Legal Aid [2022] VCAT 1493, [11]-[16].

  1. When it came to considering whether the proceeding should be dismissed because of the delay in its commencement, the Tribunal did not consider separately the applications under ss 76 and 76(1)(b).  The Member summarised FRV’s arguments that there was no proper explanation given for the delay and that it was prejudiced by the delay and other circumstances in its defence of the action.  The Member considered the reasons that Ms Wheatley gave for the delay.  The Member’s reasons reveal that she asked herself whether, having regard to the delay and other circumstances, it was ‘in the interests of justice’ or was an ‘abuse of process’ to allow the claim to proceed.  The Member quoted, as the test to be applied, the following two passage from Burrows v Victoria:[16]

In determining whether delay in bringing a claim makes it an abuse of process, the primary consideration is the interests of justice. Relevant factors to be considered include whether the delay is inordinate or unreasonable and inexcusable, any explanation for the delay and the adequacy of that explanation, the nature of the proceeding, whether the respondent was responsible for the delay, any prejudice caused to the respondent if the proceeding continued and the effect of the delay on the quality of justice, that is, the ability to conduct a fair hearing of the proceeding (for example, whether significant documents have now been lost or destroyed, whether the witnesses' memories are so impaired that the quality of evidence will be compromised, whether witnesses have died and their importance is such that the quality of evidence is compromised); and the public interest. These factors must be balanced against each other and none is determinative.[17]

…

While one of the objectives of the Equal Opportunity Act is to provide redress for the victims of discrimination and those making complaints should not be unfairly shut out from pursuing a claim, this must be balanced against matters such as the need for finality and the unfairness to a respondent which is caused by lengthy uncertainty as to whether a not a claim will be brought.[18]

[16][2002] VCAT 1655.

[17]Ibid [38].

[18]Ibid [44].

  1. Those passages concerned an application that was brought under s 75(1)(b) of the VCAT Act.

  1. The Member then made the following conclusions or findings:

[42]I accept that the delay in the applicant bringing her claims has been lengthy, but I am not persuaded, in all the circumstances, that it has been inordinate or unreasonable and inexcusable.

[43]In my view, the applicant has provided a plausible explanation for the delay.

...

[46]I have taken into account the respondent’s expressed concerns about uncertainty of documents and witness availability in the context of the delay, but I consider that the sufficiency and quality of evidence are matters that can be weighed by the adjudicator in a hearing of the applicant’s claims...

[47]While I accept the respondent’s submissions that the passage of time may have caused witness recollections to fade, it is a reality that witnesses commonly give evidence about events that have occurred quite some time ago.  I also accept the applicant’s submission that the very nature of many of the incidents described in the applicant’s claims are such that those engaged in them, or witnessing them, would remember them.

[48]It follows that I am not satisfied that the applicant’s claims, or any part of them, should be struck out for reason of delay pursuant to section 76 of the VCAT Act.

  1. The Member then went on to consider, and to dismiss, it seems, an application under s 75(1)(a) of the VCAT Act. As noted above, no application was in fact made under s 75(1)(a) of the Act. The Member did not express a separate conclusion having regard to s 75(1)(b) of the VCAT Act.

E.  Did the Member err in law?

E.1 Section 75(1)(a) of the VCAT Act and whether there a conflation of the two tests

  1. The fact that the Member considered and dismissed an application that was not made does not justify a conclusion that the Member erred in law in her consideration of the application that was made. Accordingly, the fact that the Member considered an application under s 75(1)(a) is not of itself reason for setting aside the order made.

  1. FRV submitted, however, that the Member conflated the legal tests.  That was said to follow from the fact that the Member said that Ms Wheatley’s ‘case should be taken at its highest’[19] when setting out the legal principles that apply and later that she had taken Ms Wheatley’s ‘claims at their highest’[20] when assessing the application for summary dismissal or strike out. In the circumstances of this case, however, the Member’s statements do not indicate that she was conflating the test in s 75(1)(a) with the test under s 75(1)(b) or s 76. The comments are explicable in so far as they related to the Members consideration of the argument (not put) that the proceeding should be summarily dismissed under s 75(1)(a) of the VCAT Act, because when deciding whether a claim is ‘frivolous, vexatious, misconceived or lacking in substance’, the claims have to be looked at in that way.

    [19][2023] VCAT 12, [12].

    [20]Ibid [36].

  1. Also, when deciding whether the claims cause prejudice to the respondent for the purpose of the application based on s 76 of the VCAT Act, it was appropriate to look at the claims in their full context. If the Member had said, or conveyed, that she was approaching the issue on the basis that she must accept Ms Wheatley’s evidence at its highest — that is, on the assumption that the claims were true — then that would have been an error.  But that is not the way the issue was addressed.  By saying that she was taking the ‘claims at their highest’, the Member was not saying that she accepted or assumed that the claims were true or likely to be true.  Rather, she was saying that in assessing the application for a dismissal or strike out of the claims, which required a consideration of any prejudice that FRV might suffer by their prosecution, the claims must be assessed including by reference to the most extreme or far-reaching allegations.  The Member was, with respect, right to do so.

E.2 The approach taken to the application under s 76 of the VCAT Act

  1. The passage from Burrows v Victoria[21] set out in para 17 above is, with respect, an accurate summary of the legal principles that the Member had to apply. I am satisfied that the Member properly directed herself. The passages set out in para 19 above expressing her conclusions, and the passages in which she summarised the parties’ arguments, satisfy me that the Member had regard to the relevant considerations when she formed her view that the delay did not, in the circumstances, mean that the proceeding should summarily be dismissed. The view the Member took of the evidence, including Ms Wheatley’s explanation for the delay, and the weight she gave to the various factors including the tendency for evidence to degrade with time, were matters for her. Accordingly, I conclude that the Tribunal did not err in law in deciding the application under s 76 of the VCAT Act summarily to dismiss the application.

E.3 The failure separately to consider the application under s 75(1)(b) of the VCAT Act

[21][2002] VCAT 1655.

  1. The fact that the Member did not separately express a conclusion on the application in so far as it was brought under s 75(1)(b) of the VCAT Act is explicable having regard to the overlap between the power under that section and the power under s 76 of the VCAT Act and the way the matter was argued before her. In its written submission in the VCAT proceeding, when setting out the ‘relevant legal principles’, FRV described the question under s 76 of the VCAT Act as whether it is ‘in the interests of justice’ to allow a claim older than a year to proceed, and then immediately set out the criteria that apply ‘in determining whether delay in bringing a claim makes it an abuse of process’ where, it submitted, ‘the primary consideration is the interests of justice’. Then, when referring to s 75(1)(b) of the VCAT Act, it merely confirmed that ‘delay may amount to an abuse of process’. In the part of its submissions headed ‘submissions in support of strike out’, FRV did not differentiate between ss 76 and 75(1)(b) but made general submissions relating to the prejudice said to arise from the delay and the reasons given by Ms Wheatley and the public interest. In oral submissions to the Member, FRV explained that the claim under both ss 76 and 75 related to ‘the delay in bringing the complaints’, and that it relied on s 75 ‘only again in respect of the delay … being an abuse of process that would give rise to the power to strike out.’ Read fairly, FRV’s submissions were consistent only with the two provisions raising, in the circumstances of this particular case, the same question.

  1. Equally, in submissions before me, FRV very fairly accepted that the application under s 75(1)(b) to strike the proceeding out as an abuse of process was brought ‘only insofar as it related to the delay’, and that if I were satisfied that the Member had ‘engaged properly with s 76’ then it would not ‘get home ... under s 75(1)(b)’. I consider that concession to have been properly made and, indeed, that the manner in which the application was argued below was sensible and appropriate given the overlap, discussed in para 14 above, between the two provisions where the abuse of process is said to arise from the delay in the bringing of an action.

  1. Accordingly, there was no error of law in the Member failing separately to consider the application made under s 75(1)(b) of the VCAT Act or, if there were an error of law, it was an error of no consequence.

E.4  The references to the role of the ‘adjudicator in the hearing’

  1. When considering FRV’s argument that it would face prejudice due to the ‘degraded’ state of the evidence and the difficulties that it would have defending itself, the Member said, in para [46] of her reasons set out in para 18 above, that ‘the sufficiency and quality of evidence are matters that can be weighed by the adjudicator in a hearing of the applicant’s claims’.  This observation is difficult to understand and FRV submitted that it reflected an error of principle.

  1. I am not satisfied, when para [46] is read with para [47], that this reflects an error of principle by the Member.  I do not read the comments as indicating that the Member abdicated her responsibility to have regard to the ‘degraded’ state of the evidence that would be called or be likely to be available when assessing what the interests of justice required.  Rather, I read it as the Member expressing a view that the adjudicator will not be precluded, by reason of the delay, from making a decision that is fair to the parties, and that the evidence may be evaluated having regard to the fact that it relates to events that took place long ago.  For example, it would be open to the adjudicator not to accept evidence led by Ms Wheatley as to events that took place long ago, even if not contradicted, if the adjudicator thought the evidence to be insufficiently persuasive, or to accept somewhat-uncertain or uncorroborated evidence called by FRV of events that took place long ago.  Similarly, the adjudicator might readily accept an explanation that a witness is not available and not draw an inference from the witness’s absence.[22]  As I read the reasons, that is what the Member had in mind. 

E.4  The reference to Ms Wheatley being self-represented

[22]Cf Jones v Dunkel (1959) 101 CLR 298.

  1. As noted above, when setting out the general principles that applied, the Member stated that caution should be exercised particularly where the complainant is self-represented[23] and that the Tribunal must be careful ‘to ensure that self-represented parties have a genuine opportunity to articulate their case’.[24] 

    [23][2023] VCAT 12, [8].

    [24]Ibid [12].

  1. I do not consider, in the circumstances of this case, that the Member’s resolution of the issues was influenced by a wrong belief that Ms Wheatley was self-represented.  Ms Wheatley was not self-represented but was represented by Maurice Blackburn Lawyers, who are experienced solicitors, and by capable counsel.  Written submissions had been filed that had been prepared by the solicitors and signed by counsel.  Counsel had appeared to present oral argument and the Member’s published reasons listed the names of counsel on the front page in the usual spot.[25]  The Member’s errors occurred in the preliminary part of her reasons when she was setting out basic principles and did not reoccur when the Member was explaining why she reached the conclusions she reached.  As noted above, it seems that the Member probably ‘cut and pasted’ the preliminary part of her reasons from other decisions from cases where parties had been self-represented.  Although this was unfortunate, it does not amount to an error of law or an error of law that could have affected the outcome of the application.

F.  Disposition

[25]The name of junior counsel for the respondent was omitted, but the names of both counsel who addressed the Tribunal were included.  The omission was later rectified.

  1. I will grant leave to appeal, but dismiss the appeal.

  1. I will hear from the parties on the question of costs.


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