Forrester v AIMS Corporation - [2004] VSC 506

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5407 of 2004

STEPHEN FORRESTER	Appellant
v
AIMS CORPORATION AND ORS	Respondent

---

JUDGE:	KAYE J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 December 2004
DATE OF JUDGMENT:	8 December 2004
CASE MAY BE CITED AS:	Forrester v AIMS Corporation and ors
MEDIUM NEUTRAL CITATION:	[2004] VSC 506

---

catchwords: Discrimination - Complaint pursuant to Equal Opportunity Act 1995 - “Strike out” application – Complaint not “absolutely hopeless” – Tribunal erred in pre-trial assessment of complainant’s evidence - s.75(1)(a) Victorian Civil and Administrative Tribunal Act 1998

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D.B. Sharp	Arnold Bloch Leibler
For the First Respondent	Ms L.C. Bird	EMA Legal
For the Second Respondent	Ms M. Rozner	Corrections Victoria
For the Third Respondent	Mr R.D. Shepherd	Wisewoulds

TABLE OF CONTENTS

The Equal Opportunity Act 1995..................................................................................................... 3

Proceedings before the Tribunal..................................................................................................... 4

Reasons for Decision of Tribunal................................................................................................... 5

Submissions on Appeal.................................................................................................................... 6

The Victorian Civil and Administrative Tribunal Act 1998 s.75(1)............................................ 7

Principles applicable to s.75(1)......................................................................................................... 7

Application of principles in this case........................................................................................... 14

Conclusion......................................................................................................................................... 20

HIS HONOUR:

On 25 June 2002 the appellant, Stephen Forrester, commenced to serve a sentence of imprisonment of 18 months which had been imposed on him by the Melbourne Magistrates' Court. He completed that sentence on 24 December 2003. During that term of imprisonment he was detained, for varying periods, at the Melbourne Custody Centre, the Metropolitan Assessment Prison, the Fulham Correctional Centre and Port Philip Prison. In January, February and June 2003 Mr Forrester made complaints to the Equal Opportunity Commission, the substance of which was that during his term of imprisonment he was subjected to environmental tobacco smoke caused by the smoking of other prisoners with whom he was confined. The appellant had been a non-smoker since he ceased smoking approximately nine years previously, and he claimed that he suffered from a hypersensitivity to exposure to tobacco smoke.

Four of the complaints by the appellant were, at his request, referred to the Victorian Civil and Administrative Tribunal (“the Tribunal”). One complaint was against the first respondent, AIMS Corporation Limited, which was responsible for transporting the appellant between various locations during his term of imprisonment. A second complaint was against the second respondent, the State of Victoria, which controlled and operated the Melbourne Assessment Prison. The other two complaints were against the third respondent, Group 4 Correctional Services Pty Ltd, which controlled and operated Port Phillip Prison. The four complaints were consolidated into one proceeding by order of the Tribunal made 23 September 2003.

On 27 November 2003 the respondents applied to the Tribunal for an order that the complaint be struck out pursuant to s.75(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998 (“the VCAT Act”). The application was made on three bases, namely:

(a)the complaint did not disclose a disability which falls within the definition of impairment in s.4(a) of the Equal Opportunity Act 1995;
(b)the complaint does…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Forrester v AIMS Corporation and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2004] VSC 506
Decision Date: 8 December 2004

CaseChat Overview and Summary

The case of Forrester v AIMS Corporation involved the plaintiff, Forrester, who filed a complaint against AIMS Corporation under the Equal Opportunity Act 1995, alleging discrimination. AIMS Corporation applied to have the complaint struck out, arguing that it was absolutely hopeless. The matter was heard and determined by the Victorian Civil and Administrative Tribunal (VCAT), with the outcome being appealed to the Supreme Court of Victoria.

The central legal issues that the court had to resolve were whether the Tribunal had correctly exercised its discretion under section 75 of the Victorian Civil and Administrative Tribunal Act 1998, and if the Tribunal's assessment of the complaint as absolutely hopeless was erroneous. The court examined whether the complaint had sufficient merit to proceed to trial and if the Tribunal had erred in its pre-trial evaluation of the evidence provided by Forrester.

In its decision, the Supreme Court found that the Tribunal had indeed erred in its assessment of Forrester's evidence, determining that the complaint was not absolutely hopeless. The court held that the Tribunal had applied an incorrect legal test in evaluating the sufficiency of the complaint. It concluded that the Tribunal should have considered whether there was a real prospect that the complaint could succeed, rather than focusing on whether the complaint was likely to succeed. Consequently, the appeal was allowed, and the matter was remitted back to VCAT for further consideration.

The final orders of the court were that the application by AIMS Corporation to strike out the complaint be dismissed, and the matter be remitted to VCAT for further proceedings in accordance with the court's determination. The court emphasised the importance of correctly applying the appropriate legal test when assessing the merits of a complaint before trial.

Orders