Tomasevic v State of Victoria
[2005] VSC 402
•12 October 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 4796 of 2005
| MILAN TOMASEVIC | Appellant |
| v | |
| STATE OF VICTORIA (DEPARTMENT OF EDUCATION AND TRAINING) and BERT VAN HALEN | Respondents |
---
JUDGE: | SMITH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 & 8 September 2005 | |
DATE OF JUDGMENT: | 12 October 2005 | |
CASE MAY BE CITED AS: | Tomasevic v State Of Victoria & Anor | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 402 | |
---
Appeal from VCAT – harassment complaint – struck out as abuse of process
---
APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms R. D. Doyle | Tanya Cirkovic & Associates |
| For the Respondents | Mr R. Tracey QC and Mr T Jacobs | Minter Ellison |
HIS HONOUR:
The appeal
Milan Tomasevic has appealed from an order made by the Victorian Civil and Administrative Tribunal on 9 December 2004 that “the complaints of sexual harassment and victimization lodged with the Equal Opportunity Commission on 23 July 2004 are struck out”. Leave to appeal was granted by Senior Master Mahoney on 15 April 2005.
The appeal is brought pursuant to s 148 Victorian Civil and Administrative Tribunal Act 1998. That section enables a party to a proceeding before the Tribunal to appeal on a question of law from an order of the Tribunal.
Background to the appeal – the complaint struck out
On 23 July 2004 Mr Tomasevic filed a complaint (the second complaint) with the Equal Opportunity Commission Victoria (EOCV) alleging victimization and sexual harassment. The EOCV referred the matter to VCAT where it became matter A325/2004. On 22 September 2004 the respondents filed submissions in support of a strike out application and on 7 October 2004 Mr Tomasevic filed submissions in opposition to that application. The strike out application was heard on 20 October 2004 and the decision striking out the application, with reasons, was handed down on 9 December 2004.
The complaint concerned an incident alleged to have occurred during Mr Tomasevic’s employment as a teacher at Deer Park Secondary College. He was a teacher at that College from 1990 onwards. The principal of the College at the relevant time was the second respondent Mr Van Halen. Mr Tomasevic alleged that on 2 May 2000 he was called to Mr Van Halen’s office where he was told by Mr Van Halen that he wanted to raise some very serious matter with him but suggested that the difficulties Mr Tomasevic was about to experience could be resolved if Mr Tomasevic was prepared to do him a favour. He alleged that the favour requested was that Mr Tomasevic have a casual sexual relationship with Mr Van Halen’s male partner and that if he did that he would make sure that Mr Tomasevic was looked after. Mr Tomasevic alleged that he found the proposal completely offensive. He alleged he was called back to a further meeting on 9 May 2000 when Mr Van Halen asked him if he wished to “become a member of his ‘club’” and asked him if he understood that he could destroy his career by not acceding to the request. Mr Tomasevic alleged that, having refused these requests, Mr Van Halen then used his power to discriminate against him by issuing a letter of unsatisfactory performance and serious misconduct and securing a medical report about him from Dr Strauss. He also claimed that he had been victimized because the Department had been aware of the discrimination against him since 2000 if not earlier.
Background to the Appeal – other proceedings
To understand the issues and the reasons of the Tribunal it is also necessary to refer to other background material before the Tribunal and, in particular, to other proceedings involving Mr Tomasevic, Mr Van Halen and the Education Department.
(a) An earlier complaint
Three years earlier, on 10 May 2001, Mr Tomasevic had lodged a complaint with the Commission against the Department, Mr Van Halen and a Mr Wood. It alleged unlawful discrimination on the basis of race and impairment over a period between September 1998 and October 2000. The complaint was referred to the Tribunal and was proceeding A416/2001 (the first complaint). The complaint referred among other things to a letter dated 10 July 2000 whereby Mr Van Halen ordered Mr Tomasevic to present to a general medical officer appointed by the Department and his suspension from duty. It referred to a consultation with Dr Strauss who found him unfit for teaching duties. It alleged that Mr Van Halen made use of Dr Strauss to ensure that Mr Tomasevic would be declared unfit for teaching. It further alleged that he had been assessed by four independent psychiatrists who found he was fit to teach.
It should be noted that this first complaint made no reference to any sexual harassment notwithstanding that the first complaint concerned alleged discrimination of Mr Tomasevic by Mr Van Halen at the same time as that alleged in the second complaint and involved a similar sub-stratum of events including the alleged misuse of the same medical examination by Dr. Strauss.
Difficulties were experienced in the processing of the first complaint and on 2 September 2002 an order was made striking it out after Mr Tomasevic had failed to comply with orders and directions. Subsequently, by application received on 1 July 2004, Mr Tomasevic through his solicitors Holding Redlich applied to reinstate the first complaint. On 26 July 2004 orders were made for him to file and serve an affidavit in support of that application and it was listed for hearing on 30 August 2004.
(b) Fitness to teach proceeding
Between 7 June 2004 and 17 June 2004 a hearing also took place under s 45 Teaching Service Act 1981 concerning whether the appellant was fit to teach. In the material he filed in those proceedings, he raised for the first time the issue of the sexual harassment in May 2000. He set out the allegations in a statement dated 3 June 2004 and gave evidence about the matter. On 25 June 2004 the delegate who conducted the s 45 enquiry found that the appellant was unfit to discharge his duties as a teacher. On 23 July 2004, the second complaint, the subject of the striking out order which is the subject of this appeal, was lodged with EOCV. Shortly afterwards on 29 July 2004, the delegate conducting the s 45 enquiry determined that Mr Tomasevic should be dismissed.
On 30 August 2004, Mr Tomasevic was successful in having his first complaint reinstated before VCAT.
The strike out application
The application brought by the respondents to strike out Mr Tomasevic’s second application challenged both the victimization allegation and the sexual harassment allegation. The victimization allegation was successfully challenged on the basis that it was misconceived. It is unnecessary to explore the detail of this aspect of the decision because it is not challenged in this appeal.
As to the sexual harassment issue, the respondents applied under s 75 of the Victorian Civil and Administrative Tribunal Act 1998 to have the complaint struck out on the ground that it was “an abuse of process, because:
(i) of the delay of approximately 50 months in lodging it;
(ii)of the principles underpinning the doctrine of Anshun estoppel, to the effect that a party should not be allowed to raise a claim which they could have raised in an earlier proceeding but did not;
(iii) it is manifestly lacking in substance.”
The provisions of s 75 of the VCAT Act are as follows:
“75. Summary dismissal of unjustified
(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.
(2)If the Tribunal makes an order under sub-section (1), it may order the applicant to pay any other party an amount to compensate that party for any costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding.
(3)The Tribunal's power to make an order under sub-section (1) or (2) is exercisable by-
(a)the Tribunal as constituted for the proceeding; or
(b) a presidential member; or
(c)a senior member who is a legal practitioner.
(4)An order under sub-section (1) or (2) may be made on the application of a party or on the Tribunal's own initiative.
(5)For the purposes of this Act, the question whether or not an application is frivolous, vexatious, misconceived or lacking in substance or is otherwise an abuse of process is a question of law.”
The material before the Tribunal
In support of its application to strike out the second complaint, the respondents lodged submissions with the Tribunal. There were several attachments to those submissions namely
(a)the affidavit of Mr Tomasevic in support of his application for reinstatement of the first complaint at VCAT;
(b)an extract from the transcript of the s 45 Teaching Services Act enquiry;
(c)a statement of Mr Tomasevic filed in that enquiry on his behalf;
(d)the notice initiating the s 45 enquiry;
(e)the decision of the delegate in that enquiry.
Mr Tomasevic also lodged written submissions to oppose the application to strike out the second complaint. It was prepared with the assistance of union officials. Attached to the submission was a two ring folder with 44 individual attachments.
At the hearing of the strike out application, the respondents were represented by counsel. Mr Tomasevic was not represented. He participated in the proceedings making submissions at various times in the course of which he addressed factual matters.
Tribunal’s decision and reasons
The Tribunal, in introducing the issues, referred to the respondents’ submission that to allow Mr Tomasevic to have his complaint proceed further would amount to an abuse of process and referred back to the basis set out above. The Tribunal noted that the respondents’ submissions elaborated on the principles relevant to whether a tribunal might strike out a complaint as an abuse of process where there has been delay. The Tribunal cited the principles enunciated in Burrows v State of Victoria (Department of Education)[1] and referred to the issue of the interest of justice and generally to the issue of fairness, citing Jago v District Court of New South Wales and Ors.[2] In particular, reference was made to the summation of the principles relevant to delay in lodging a complaint set out in Burrows in the following terms:
“In determining whether delay in bringing a claim makes it an abuse of process, the primary consideration is the interest of justice. Relevant factors to be considered include whether the delay is ordinate 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, and 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 been lost or destroyed, whether the witness’ 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.”
[1][2002] VCAT 1655.
[2](1989) 168 CLR 23.
The parties accept that summary of the applicable principles. Mr Tomasevic argues that the Tribunal erred in law in applying those principles.
The Tribunal then went on to outline the submissions of the parties and at the conclusion of that outline indicated that it was satisfied that Mr Tomasevic’s complaint of sexual harassment should be struck out. It then set out its reasons.
The Tribunal commenced the statement of those reasons with the following comment:
“Whilst delay of itself would not necessarily be a basis upon which a complaint should be struck out, there are features surrounding Mr Tomasevic’s delay in making the complaint and the reasons for delay that, in the interests of justice and fairness, concern me greatly.”
The Tribunal then turned to the reasons advanced by Mr Tomasevic for the delay in making the complaint for 50 months. Two reasons had been advanced – ill health and his reluctance to raise the sexual harassment allegation because of his ethnic background and concern that, if his family and Serbian friends became aware of it, he would be stigmatised and ashamed. The Tribunal then considered these issues. It stated that the claim that ill health prevented Mr Tomasevic from making an earlier complaint was “without substance”. The Tribunal referred to the fact that he had been able to and did lodge his first complaint in May 2001 and a careful reading of both complaints showed that they both referred to a similar substratum of events. The Tribunal also rejected a subsidiary aspect of the ill health explanation namely that he had not recovered his health until June 2003. The Tribunal took the view that this was inconsistent with an affidavit filed in support of the application to reinstate the first complaint which stated he had recovered by April 2003. The Tribunal further commented that assuming that he was not fit until June 2003, there was no explanation for the continued delay for a further 12 months and that this was significant having regard to the fact that he and his advisers took a number of steps in relation to Mr Tomasevic’s employment, work cover issues, medical appointments and matters to do with the s 45 enquiry.
As to the explanation for delay based on ethnic background causing shame and distaste, the Tribunal rejected that explanation because he had failed to provide any explanation of what had changed or happened to enable him to overcome that obstacle and lodge the complaint.
Having referred to the issues of delay and explanations for delay, the Tribunal commented:
“Whilst there are all those features about his delay which, by themselves, are serious when they are combined with other matters, I am satisfied the complaint of sexual harassment should be struck out”.
The Tribunal then stated that the allegation was extremely serious in that if Mr Tomasevic’s allegation was accepted it was his rejection of Mr Van Halen’s proposal that caused Mr Van Halen to take steps regarding his unsatisfactory performance. The Tribunal then stated that at the same time Mr Tomasevic has suggested different explanations for Mr Van Halen’s actions both in his first complaint and in the s 45 hearing. In particular, he had suggested discriminatory conduct based on an imputed impairment and race (the first complaint) and an attempt to “shut him up” because of allegations of misappropriation he had made or because he was excellent with his students and an award winning teacher (the s 45 hearing). The Tribunal commented that Mr Tomasevic had shown a tendency to:
“put forward different reasons and attribute different motives to persons for the steps taken about his unsatisfactory performance from time to time and so demonstrated that he was prepared to change what he says and believes from time to time to suit the moment”.
The Tribunal expressed the view that when the complaint was looked at as a whole and in the context of all the circumstances there was a flavour of invention about it “such that one would not be confident that this complaint has substance”.
The Tribunal went on to refer to other reasons why the reliability of the complaint was open to serious question. It commented:
“In light of the seriousness of the complaint and where he has directed his complaints with Mr Van Halen, his failure to make any mention of it in the extremely numerous and detailed pieces of correspondence Mr Tomasevic has prepared and sent to many different people over the years, and as Mr Tomasevic clarified during the hearing, his failure to raise it with any of his treating doctors or doctors who examined him for medico-legal purposes is extraordinary. His voluminous correspondence which he filed as part of his material confirms that he is one who reports at length about events, as he sees them, and which shows that he could even be fairly described as a complainer. In that context, his failure to report the events alleged as part of this complaint is extraordinary and smacks strongly of confabulation. His prospects of making out this complaint, particularly where there has already been a hearing under s 45 of the Teaching Services Act 1981, which found every claim of inappropriate behaviour substantiated, and which found his evidence so unreliable, would be dim to say the least. Indeed, I regard his complaint as being hopeless.”
The Tribunal then went on to consider the Anshun argument noting that the first complaint had not yet been determined and as a result the principle did not have strict application. It went on to say that:
“The point made by the respondents, however, is that if these matters could have been raised in the earlier proceedings, they should have been and because they were not, he should not be allowed to proceed with them.”
The Tribunal then expressed its agreement with the submission that:
“… given the seriousness of the complaint, the fact that Mr Tomasevic had already lodged a complaint about Mr Van Halen, and where the nub of both complaints is Mr Tomasevic’s allegation that Mr Van Halen unlawfully contrived to remove him from the school, it would be unjust to the respondents to allow Mr Tomasevic to continue with this new complaint of sexual harassment, and it is unfair in light of the entire circumstances for Mr Van Halen to now have to face these new and serious allegations in the hearing.”
The Tribunal then commented:
“I do not accept that there is prejudice to Mr Tomasevic if the complaint is struck out, particularly where his other proceeding is still afoot. I do not regard this complaint as “a supplementary cause of action” as Mr Tomasevic describes it. It is a seriously different complaint, with all its attendant difficulties, not a circumstance that might be regarded as part of some course of conduct, where to add it to an existing proceeding would be uncontroversial and appropriate.”
After then raising the issue of the timing of the lodging of the second complaint (after the findings in the s 45 proceeding but before the determination to dismiss) the Tribunal concluded:
“For all the reasons set out above, I am satisfied that Mr Tomasevic’s complaint of sexual harassment is an abuse of process, is hopeless and has no prospect of success and should be struck out.”
Questions of law raised on this appeal and relevant grounds of appeal
The submissions advanced in this appeal for Mr Tomasevic were structured on the basis that the Tribunal had struck out the proceedings on two of the statutory bases. The first under s 75 (1)(a) was that the claim was lacking in substance. The second, under s 75(1)(b) was that the complaint was an abuse of process. In taking this position, counsel for the appellant relied on the concluding statement quoted above that the complaint was “an abuse of process, is hopeless and has no prospect of success and should be struck out”. Counsel for the respondents submitted that the decision turned solely on the issue of abuse of process and the reference to the claim being hopeless and having no prospect of success was made in elaboration of the issue of abuse of process.
In my view, the correct analysis is that the Tribunal struck out the complaint as an abuse of process. I referred above to the statement by the Tribunal of the ground relied upon by the respondents - abuse of process. This was stated on at least two occasions in the reasons. True it is that the Tribunal expressed itself very strongly about its view that the complaint was hopeless but the strength of the case was an important matter for the Tribunal to consider in weighing up the relevant matters and determining whether the complaint was an abuse of process. I suggest that it was the importance of those considerations that caused the Tribunal to emphasise them in the final sentence of the reasons. On proper analysis, however, the issue actually put to the Tribunal by the respondents was abuse of process and it was that issue that the Tribunal considered and determined.
Turning to the questions of law and grounds of appeal, questions one and two and their relevant grounds of appeal (one, two and three) proceed on the basis that the Tribunal exercised the powers under s 75(1)(a). I am not persuaded that that was so and accordingly the appellant’s case in respect of those questions and grounds is not made out. I turn to the remaining questions of law and grounds.
Question 3; ground 4
The question was in the following terms:
“3.Whether, on its proper construction, s75(1)(b) VCAT Act permits the summary dismissal of a proceeding on the ground that it constitutes an abuse of process in circumstances where there is no delay which is shown either to constitute prejudice to the Respondent or to have caused a diminution in the capacity of the Tribunal to conduct a fair trial.”
The relevant grounds relied upon were as follows:
“The Tribunal erred in law and misdirected itself by failing to ask itself the proper question with respect to s75(l)(b) VCAT Act, namely whether the Complaint constituted an abuse of process by reason of the fact that the delay in the filing of the Complaint had the effect that:
(i)There was such prejudice caused to the respondents by reason of the delay in the circumstances of the particular case that the Complaint ought not be permitted to proceed; or
(ii)The impact on the quality of justice and the capacity for there to be a fair trial of the Complaint was such that the Complaint ought not to be permitted to proceed.”
Counsel for the appellant submitted that the Tribunal, before finding an abuse of process, was obliged to identify any prejudice that the respondents would suffer if a complaint proceeded to a hearing. Counsel submitted that the Tribunal did not so find. In addition, it was put that the Tribunal had not identified any features of the complaint or the delay which would have the effect that the conduct of a trial of the matter would be unfair.
I am not persuaded that the Tribunal neglected to consider these issues. I have referred above to the statement of principle contained in the reasons for decision which identified the relevant issues which included the question of prejudice to the respondent if the proceeding continued and the effect of the delay on the ability to conduct a fair hearing of the proceeding. Plainly the Tribunal was alive to the need to consider those matters.
In the course of its reasons, the Tribunal went through the parties’ submissions. In relation to the issue of prejudice to the respondents, the Tribunal noted that the respondents submitted that
“. . . it was not fair, just or reasonable to Mr Van Halen himself, in all the circumstances for the complaint to be allowed to continue. They point out that Mr Van Halen has been the subject of a prolonged campaign by Mr Tomasevic and for the complaint to continue and for Mr Van Halen to be required to answer this very serious allegation made many years after the events alleged, when it should have been made in a timely way, is unfair, unjust and unreasonable.”
Counsel for the appellant submitted that the respondents were unable to point to any particular procedural prejudice which they would suffer if the matter was heard and argued that it was likely that the Department and Mr Van Halen would have no difficulty because they had participated in the s 45 enquiry only a few months before and were, therefore, likely to be available and able to give evidence. Counsel further submitted that, in fact, the s 45 enquiry demonstrated that the respondents were in a position in June 2004 to advance whatever evidentiary material was required to address the allegations concerning the events of May 2000 and there was no evidence that this situation had changed.
The appellant’s analysis of the respondents’ position in respect of such possible procedural prejudice would appear to be correct. When one turns to the reasons of the Tribunal it is also clear that the Tribunal did not proceed on the basis that prejudice of the latter kind existed or could be demonstrated. The Tribunal did, however, accept the argument referred to above about personal prejudice stating that it would be unjust for Mr Van Halen in particular to face the new serious allegations which could and should have been raised and dealt with earlier. In light of the absence of any reference in otherwise detailed reasons, I assume that the Tribunal did not weigh in the balance the fact that Mr Van Halen had already had to give evidence once about the allegations in the s 45 hearing in which Mr Tomasevic had been unsuccessful.
In all the circumstances, it seems to me that the Tribunal’s approach was to recognise that, in weighing up the relevant factors, it was relevant to consider whether the delay was shown to have caused prejudice to the respondents and whether it had adversely affected the capacity of the Tribunal to conduct a fair trial but came to the conclusion that only the former had been demonstrated in respect of Mr Van Halen. The reality was that the respondents had not sought to argue and the Tribunal did not find that the delay had caused a diminution in the capacity of the Tribunal to conduct a fair trial.
Thus the issues of law come down to the question of whether the relevant section allows the striking out of proceedings as an abuse of process in circumstances where the party seeking dismissal cannot demonstrate that the passage of time had adversely affected the capacity of the Tribunal to conduct a fair trial. In my view, such a finding is not fatal to a strike out application. It is simply one of the matters to be weighed along with the other relevant matters in determining whether the proceedings should be regarded as an abuse of process. The absence of such a negative feature may make the task more difficult for the parties seeking to have the matter struck out as an abuse of process but does not prevent it being struck out.
Question 4; ground 5
Question 4 was in the following terms:
“4.Whether on its proper construction, s75(1)(b) VCAT Act permits the summary dismissal of a proceeding on the ground that it constitutes an abuse of process by reason of the fact that the Complainant's explanation for a delay in filing a Complaint is rejected by the Tribunal, in circumstances where the Tribunal does not give reasons for rejecting that reason for the delay and does not hear evidence from the Complainant in relation to the reason for the delay.
The related ground relied upon was as follows:
“5.The Tribunal erred in law in rejecting the Appellant's explanation for the delay in bringing the Complaint without either:
(i)Giving reasons for the Tribunal's rejection of that reason as an explanation or reason for the delay; or
(ii)Hearing evidence from the Appellant in relation to the delay and his reason for it.”
In essence, the appellant alleges that the Tribunal rejected his explanation for delay in bringing the complaint but in doing so neither gave reasons for that rejection nor heard evidence from the appellant in relation to the delay and his reasons for it.
As to the absence of reasons issue, I am satisfied that they were in fact clearly given. As noted above the ill health explanation was rejected as being without substance and reasons given to explain that decision. As to the rejection of the explanation that he was overcome by shame and distaste in raising the sexual harassment issue, the Tribunal stated that it regarded as critical that Mr Tomasevic had not given any explanation as to how he had been able to overcome that shame and distaste.
The issue of whether the Tribunal heard evidence from the complainant in relation to the reason for delay, particularly the latter reason, requires more detailed consideration.
Counsel for the appellant submitted that Mr Tomasevic had not been given the opportunity to give evidence on oath concerning his reasons. Counsel acknowledged that, in the course of the hearing on 20 October 2004, when the issue of delay was raised by the Deputy President, Mr Tomasevic said:
“But I explain here that it was my – my Serbian back - cultural background - - - “
Counsel for the appellant argued that the Deputy President interrupted him saying:
“I mightn’t accept that.”
and submitted that, in so doing, he rebuffed the appellant. But the transcript records that Mr Tomasevic went on immediately after the alleged rebuff,
“And it is against the law in my culture that gay people are working as teachers or any job in education department. I have personally nothing against them and that for me was very embarrassing to mention and I was believing from the beginning, well, that’s – on the end of the day we will have resolution meeting if Bert Van Halen would follow official procedure and I was requesting with Mr Van Halen a resolution meeting . . .”
As to whether evidence was heard from the complainant on the relevant issues, plainly sworn evidence was not received. But the Tribunal is not bound by formal rules of evidence. The parties can place material of an evidentiary kind before the Tribunal in an informal way.[3] In this instance, in both the complaint itself and in the written submission filed in opposition to the application to dismiss the complaint, Mr Tomasevic made detailed statements about the factors that had brought about the delay. He also engaged without any apparent inhibition or real difficulty in advancing his arguments and placing material before the Tribunal or in the discussion of the issues with the Tribunal. Thus, he plainly had ample opportunity to put his explanations before the Tribunal. Bearing in mind that the formal rules of evidence do not apply and evidence can be received in an informal way, the appellant cannot demonstrate that the Tribunal did not hear evidence from him in relation to the reason for delay. He did place that evidence before the Tribunal.
[3]VCAT Act 1998, s 102.
Question of law 5: grounds 6 and 7
Question 5 was in the following terms:
“5.Whether on its proper construction, s75(1)(a) or s75(1)(b) VCAT permit summary dismissal of a Complaint on the ground that the Complaint is unlikely to be made out by reason of the Tribunal's acceptance of a finding made by another decision maker in another forum that the Complainant's evidence is "unreliable" and that evidence he has given in relation to the same allegations is to be given "no weight", in the absence of the Complainant being granted the opportunity to give evidence, adduce other evidence and respond to cross examination concerning the evidence in the other proceedings in that other forum.
The grounds relied upon were as follows:
“6.The Tribunal erred in law by giving excessive weight to a consideration in summarily dismissing the Complaint pursuant to s75 VCAT Act on the grounds that it was "hopeless" and "has no prospects of success" and constituted an abuse of process, namely the findings by the delegate of the Department of Education who conducted the inquiry under the Teaching Services Act that the Appellant's evidence was unreliable and that the allegation of sexual harassment was to be given "no weight”.
7.The Tribunal's finding that the Complaint was "hopeless" and had "no prospects of success" within the meaning of s75(1)(a) VCAT Act by reason of the fact that a Delegate of the Department conducting an inquiry under the Teaching Services Act had found the Appellant's evidence to be unreliable and that the allegation of sexual harassment was to be given "no weight" was attended by Wednesbury unreasonableness by reason of the fact that the Tribunal reached this conclusion in the absence of:
(i)Sworn evidence and an opportunity for the Appellant's credit, and that of the second respondent and other witnesses, to be examined by the Tribunal itself;
(ii)An opportunity for the Appellant to answer or explain on oath the answers given by him at the inquiry before the Delegate;
(iii)An opportunity for the Appellant to advance in the Tribunal other evidence which was not adduced in relation to the sexual harassment allegation at the inquiry before the Delegate.
The question and grounds proceed upon the assumption that the Tribunal formed the view the complaint was unlikely to be made out on the basis that it accepted the decision of the s 45 hearing delegate that the evidence of Mr Tomasevic was unreliable and should be given no weight.
Ground 6, however, alleges that the Tribunal erred in law by giving excessive weight to the decision. In my view, that does not raise a question of law. In the alternative, pursuant to ground 7, the issue is raised whether in the absence of sworn evidence and an opportunity for the Tribunal to examine
● the credit of Mr Tomasevic, Mr Van Halen and other witnesses;
●Mr Tomasevic to answer or explain on oath the answers he gave at the enquiry before the delegate; and
●Mr Tomasevic to advance evidence not adduced in relation to the sexual harassment allegation of the enquiry before the delegate,
the Tribunal acted unreasonably in the sense of the Wednesbury decision in relying upon the views of the delegate in the s 45 hearing that the evidence of Mr Tomasevic was unreliable and the allegation of sexual harassment was to be given no weight.
Reliance is placed in particular on the statement by the Tribunal
“His prospects of making out this complaint, particularly where there had already been a hearing under s 45 of the Teaching Services Act 1981, which found every claim of inappropriate behaviour substantiated, and which found his evidence so unreliable, would be dim to say the least. Indeed I regard his complaint as being hopeless.”
Counsel for the appellant also referred to earlier passages in the reasons where the Tribunal quoted the reasons of the delegate at some length. The quoted reasons of the delegate contained a number of adverse conclusions and findings against Mr Tomasevic. In addition in that part of the reasons setting out the actual reasons for decision, the Tribunal stated the following by reference to the s 45 hearing.
“Again, in the s 45 hearing, he variously claimed the unsatisfactory performance claims had been made to ‘shut him up’ because of his allegations of misappropriation or made because he was excellent with his students and an award winning teacher! His tendency to put forward different reasons and attribute different motives to persons for the steps taken about his unsatisfactory performance from time to time demonstrates that he is prepared to change what he says and believes from time to time to suit the moment. Where he has done that and when his complaint is looked at as a whole and in the context of all the circumstances, there is a flavour of invention about the complaint, such that one would not be confident that that complaint had substance.”
It seems to me that a fair reading of the reasons reveals that the Tribunal did not, in fact, accept and directly rely upon the findings of the delegate to conclude that the claim was hopeless and had no prospect of success. Rather, in the reasons, it attempted to look at the realities facing Mr Tomasevic which included the fact that he had severely damaged his credibility before the delegate and done so to such an extent that it was likely to prove fatal in any further investigation of the allegations of sexual harassment. Further, the reasons indicate that the Tribunal took the view that his prospects have been damaged because of the finding by the delegate of inappropriate behaviour in a variety of contexts. There was plainly much material available from that hearing that could be used to attack his credibility. The Tribunal also referred to the fact that another Tribunal had found his evidence unreliable in the extreme. The Tribunal was saying that realistically his prospects were hopeless in light of that past experience and history, should the matter go to a full hearing.
Counsel for the appellant submits that in that situation, the Tribunal erred in law in proceeding as it did by proceeding to analyse the strength of the case of the appellant and determine whether the appellant would be able to prove his case. Relying upon State Electricity Commission v Rabel[4] and Forrester v AIMS Corporation and Anor[5] counsel submitted that it was not for the Tribunal in an interlocutory application of this kind to conduct a pre-trial assessment of the case for the appellant particularly where the appellant had not conceded that the material he had placed before the Tribunal contained the whole of his case.
[4][1998] 1 VR 102.
[5](2004) VSC 506.
The cases relied upon were cases where there was an issue as to whether the complaint lacked substance because of the absence of evidence as to an element of a complaint and the question arose whether that issue could be determined on the evidence then available at an interlocutory stage in the proceeding when the complainant had not conceded that he had placed all material before the Tribunal. In that situation, the Tribunal should not conduct a pre-trial assessment of the evidence to determine if the case can be proved. But that does not exclude the power to strike out a complaint without hearing evidence in an appropriate case.[6]
[6]State Electricity Commission v Rabel, above, 105, 119.
In the present case, the Tribunal did not direct its mind to the question of whether the complaint lacked substance by attempting to assess the material evidence available to prove the complaint. What it did was to explore the question of the strength and prospects of the appellant’s case as a matter to be weighed in the balance with other matters in determining whether the application was an abuse of process. In doing that, it was relevant, among other things to have regard to the fact that there had been a full hearing of the very same issues before a delegate who was apparently competent, independent and unbiased (for no contrary allegation has been made) and his allegations had been rejected. He had been, in fact, legally represented in that hearing. The Tribunal also formed the view, which was open to it, that Mr Tomasevic’s previous conduct had irretrievably damaged his credibility and, therefore, the credibility of his proposed case; for it depended entirely on his evidence. It was, therefore, an extreme case.
In any event, assuming the authorities apply, there is an issue as to what other evidence might have been put before the Tribunal. On this issue counsel submitted that the appellant had on a number of occasions indicated that he wanted to adduce other evidence in relation to the incident and in relation to all the surrounding circumstances to support the inference that the behaviour of the principal changed dramatically after the event in question because he rebuffed the sexual advances. This was done in part in response to a repeated proposition put by the Tribunal to the appellant that he had no “proof” of his complaint other than his own evidence. As I read the exchanges, however, the appellant accepted the proposition that the issue was to be determined on the basis of his evidence and that of Mr Van Halen alone because there were no eye witnesses. He did indicate, however, that he relied upon not only the change in behaviour of the principal but also the irregularity of the relevant meetings in that disciplinary meetings of that kind were supposed to be conducted in the presence of a third person. He wanted to argue that it was unusual and that that also supported his case that something unusual had happened namely, the sexual proposal. In relation to the s 45 materials, the complaint is also made that Mr Tomasevic wanted the opportunity to explain some of the answers given to the delegate’s enquiry. He did, in fact, indicate at the hearing of the strike out application that there were times when he was responding to double-barrelled questions from the cross-examiner and this had given rise to confusion and he wanted to refer to other answers and evidence he had given at the enquiry which had not been referred to by the respondents.
An examination of the transcript reveals, however, that the appellant had ample opportunity to state to the Tribunal the surrounding circumstances he relied upon in support of his case and did so. At no time, however, did he indicate that he had any other witnesses who might give evidence. Nor did he ever indicate that he had any other specific evidence that might be called. As to the issue of the alleged unfairness of the cross-examination in the s 45 hearing, he developed that argument with illustrations in the course of addressing the Tribunal. Thus, even if the situation came within that referred to within Raebel or Forrester, it cannot be demonstrated that there was other material that needed to be considered before a view could be formed as to the strength of the appellant’s case. Again as noted above, I am not persuaded that the Tribunal adopted and applied the findings of the delegate.
Question 6 and 7; grounds 8 – 11
Question 6 is in the following terms:
“6. Whether the Tribunal erred in law and misdirected itself by taking into account irrelevant considerations in determining whether the Complaint was lacking in substance within the meaning of s75(1)(a) VCAT Act or was an abuse of process within the meaning of s75(1)(b) VCAT Act, namely by taking into account:
(i)The fact that the claim that Complainant's ill-health was a reason for the delay in filing the Complaint was "without substance";
(ii)The rejection by the Tribunal of the Complainant's ethnic background (giving rise to shame and distaste in respect of reporting the incident of sexual harassment) as a reason for the delay in filing the Complaint;
(iii)The finding by the Tribunal that the Complainant's failure to provide an explanation as to how he had been able to overcome the shame and distaste surrounding the subject matter of the Complaint provided a further basis for refusing to accept the Complainant's ethnic background as an explanation for the delay;
(iv)The fact that the allegations made by the Complainant in the Complaint against the second Respondent are serious;
(v)The fact that the Complainant had, in an inquiry conducted by a Delegate of the Department of Education under the Teaching Services Act, alleged that a reason other than that related to the incident of sexual harassment had motivated the second respondent and others to take steps against him;
(vi)The finding by the Tribunal that the Complainant's Complaint had "a flavour of invention";
(vii)The finding by the Tribunal that the failure by the Complainant to raise the allegation of sexual harassment in correspondence with various persons or with treating medical practitioners was "extraordinary" and that as a result, the Complaint "smacks of confabulation";
(viii)The fact that a Delegate of the Department of Education in an inquiry under the Teaching Services Act had found the Complainant's evidence to be unreliable and had placed "no weight" on the allegation of sexual harassment made by him in that forum;
(ix)The fact that in the view of the Tribunal it would be "unjust" to the Respondents to allow the Complainant to continue the Complaint because the allegations the subject of the Complaint "should have been" raised by the Complainant in earlier proceedings under the Equal Opportunity Act in the Tribunal;
(x)The fact that in the view of the Tribunal it would be unfair in light of the "entire circumstances" to require the second respondent to face the allegations contained in the Complaint in a hearing in new proceedings;
(xi)The fact that there was no prejudice to the Complainant because he had other proceedings on foot in the Tribunal under the Equal Opportunity Act.
7.Whether the Tribunal erred in law by giving excessive weight to considerations in determining whether the Complaint was lacking in substance within the meaning of s75(1)(a) VCAT Act or was an abuse of process within the meaning of s75(l)(b) VCAT Act, namely the considerations referred to in paragraph 6(i) to (xi) above.
The relevant grounds of appeal were as follows:
“8.The Tribunal erred in law and misdirected itself by taking into account irrelevant considerations in determining whether the Complaint was "lacking in substance" within the meaning of s75(l)(a), namely by taking into account what the Tribunal referred to as "other features surrounding the delay" by the Appellant in making a complaint, such features being said by the Tribunal to be:
(There then followed subparagraphs (i) to (xi) which repeated the above list of features set out above in question 6.)
9.The Tribunal erred in law in giving the "other features surrounding the delay" referred to in Ground 8(i) to (xi) above excessive weight in determining whether the Complaint was lacking in substance within the meaning of s75(1)(a) VCAT Act.
10.The Tribunal erred in law by taking into account irrelevant considerations in determining whether the Complaint constituted an "abuse of process" within the meaning of s75(1)(b) VCAT Act, namely the "other features surrounding the delay" referred to in Ground 8(i) to (xi) above. Those "other features" are irrelevant to a proper consideration of whether the Complaint constituted an abuse of process.
11.The Tribunal erred in law in giving the “other features” referred to in Ground 8(i) to (xi) excessive weight in determining whether the Complaint constituted an abuse of process within the meaning of s75(1)(b) VCAT Act.
By these questions and grounds the appellant seeks to demonstrate an error of law in that the Tribunal considered irrelevant matters in deciding whether the complaint was lacking in substance or was an abuse of process.
In light of my analysis of the decision, and the conclusion that the Tribunal did not specifically find that the complaint was lacking substance within the meaning of s 75(1)(a) of the VCAT Act, the issue to be resolved is whether it erred in law in having regard to irrelevant considerations in determining whether the complaint was an abuse of process.
The questions and the grounds list some 11 considerations. The first three listed (i) - (iii), concern matters that were taken into account in assessing the reasons for delay. They all appear to me to be relevant. The fourth, that the allegations made by the complainant against the second respondent were serious, was plainly a relevant matter. In weighing up and assessing the strength of the case being advanced by the complainant, it was relevant to consider the matters referred to in paras (v) to (vii). They were relevant considerations and assessing the strength of the complaint was relevant to the abuse of process question. The fact that the delegate had found the complainant’s evidence to be unreliable and had placed no weight on the allegation of sexual harassment was also relevant in assessing the prospects of success for Mr Tomasevic, the delegate having conducted a full hearing at which both Mr Tomasevic and Mr Van Halen gave evidence and in which Mr Tomasevic was represented. There was no suggestion that the delegate in any way was biased or lacked independence or competence. The matters referred to in paras (ix) and (x) relating to the injustice and unfairness to Mr Van Halen were relevant matters in assessing the abuse of process question.
Finally, it was relevant to consider the item in para (xi) - whether there was prejudice to the complainant if the matter was not allowed to proceed. The Tribunal indicated that there was in its view no prejudice flowing from the striking out of the second complaint because the other complaint was on foot before the Tribunal. This issue was relevant. At first sight, the conclusion seems difficult to justify. On closer examination, however, the conclusion was understandable and open in that the Tribunal had formed a view that the new case was doomed to failure but the original case could still be run. The conclusion may also have recognised the fact that it was likely that Mr Tomasevic would be able to lead evidence of the sexual harassment allegation in any event at the hearing of the first complaint. He was in fact given permission to do so.[7]
[7]A416/2001, Judge Dove, Reasons for Judgment 22.4.05 [26].
Finally, I note in relation to the above question and grounds that again it was alleged that excessive weight was given to the above considerations in determining whether there was an abuse of process but, in my view, that allegation does not provide a ground which would raise a question of law.
Other issues
For completeness I should mention two issues raised by the parties.
Counsel for the respondents submitted that s 75 conditioned the exercise of the power of the tribunal on the opinion of the tribunal and that as a result the exercise of the power could be set aside only in limited circumstances. Counsel relied upon the views of Gibbs CJ in Buck v Bavone[8] that:
“In all such cases the authority must act in good faith, cannot act merely arbitrarily or capaciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste, it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the Courts.”
Counsel submitted that where you are dealing with a pure question of law and the subjective opinion of the tribunal is the pre-condition to it acting, unless the reviewing court is persuaded the tribunal has acted capriciously or unreasonably in a Wednesbury sense, then there is no scope for intervention so long as the tribunal has formed the view bona fide that the balance falls one way.
[8](1975-1976) 135 CLR 110, 118-119.
In responding to the submission, counsel for the appellant drew attention to s 75(5) of the Act which defines the question of abuse of process as a question of law. Counsel did not submit, however, that s 75(5) had the effect that every appeal from a strike out decision was properly one which gave rise to a question of law. Counsel submitted that there would still have to be questions of law and grounds of appeal supporting them which attacked the decision of the tribunal member as a matter of law. Counsel submitted, however, that the sub-section made it clear that if the tribunal erred or asked itself the wrong question that would be a question of law.
These are difficult questions. This case, however, is not an appropriate vehicle for attempting to resolve them. The appellant sought to challenge the decision by raising specific questions of law and errors of law and the case was argued on that basis. Further, in view of the conclusions that I have reached on those arguments, it is not necessary to resolve the issue raised by the respondents about the significance of the word “opinion” in the section.
Conclusion
Caution is required in approaching any strike out application, particularly one involving a claim concerning allegations of the seriousness of those in this case. Particular caution is required when a critical issue is the prospects of success of the claim and the assessment of those prospects depends on an assessment of the credibility of the applicant. This case, however, was an extreme case. I am satisfied that the Tribunal considered all relevant matters and that it was reasonably open to it to make the findings it did and to decide to strike out the application. No error of law has been demonstrated. The appeal should be dismissed.
---
3
0
0