VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
human rights DIVISION
HUMan rights LIST	
vcat reference No. H328/2021	
CATCHWORDS	
Application for joinder under section 60 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) – application under section 75 of the VCAT Act – seeking summary dismissal of complaint under the Equal Opportunity Act 2010 (Vic).	

APPLICANT	Maria Turnbull	
RESPONDENT 	Odyssey House Victoria	
WHERE HELD	Melbourne via videoconference	
BEFORE	Member M. Cameron	
HEARING TYPE	Hearing	
DATE OF HEARING	15 December 2022	
DATE OF ORDER AND WRITTEN REASONS	13 June 2023	
CITATION	Turnbull v Odyssey House Victoria (Human Rights) [2023] VCAT 657	

ORDERS
1	The application for joinder of parties is refused.
2	The claims made by in this proceeding are dismissed under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) for the reasons given.

M. Cameron
Member			

APPEARANCES:		
For applicant	D. Hancock of Counsel	
For respondent	D. Bruno of Counsel 	
Reasons
BACKGROUND
1	The applicant Maria Turnbull was formerly employed as a financial counsellor by Odyssey House Victoria between 5 September 2013 and 11 June 2020, at which time her employment was terminated by Odyssey House Victoria, which cited the grounds of misconduct and a loss of trust and confidence in her employment.
2	Subsequently, on or about 22 June 2020, the applicant initiated proceedings in the Fair Work Commission (FWC) claiming unfair dismissal (U2020/8612).
3	Following the exchange of material in the FWC proceeding, that proceeding was settled by an agreement between the parties executed in a Settlement and Release Agreement signed by the applicant on 5 October 2020.
4	On or about 14 July 2020, the applicant submitted a claim form to Odyssey House Victoria saying that she had suffered an alleged workplace injury to her ‘mind’. This matter formed the basis for a worker’s compensation claim made by the applicant pursuant to the provisions of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (WIRC Act) which was rejected by Odyssey House Victoria’s insurer.
5	On or about 27 January 2021, the applicant commenced proceedings in the Magistrates’ Court for a review of the decision rejecting her claim for compensation.
6	On 21 February 2021, the applicant and Odyssey House Victoria agreed to the resolution of the worker’s compensation proceeding in accordance with Minutes of Consent agreed to by the parties, and that proceeding was thereby disposed of by orders of Magistrate Wright.
THE CURRENT PROCEEDING
7	On 14 October 2021, the applicant made an application to the Victorian Civil and Administrative Tribunal (VCAT) under the provisions of the Equal Opportunity Act 2010 (Vic) (EO Act) claiming she had been discriminated against in employment by Odyssey House Victoria. According to her application, the type of discriminatory conduct that had occurred was the authorising or assisting of discrimination, discrimination and victimisation, based on the attribute of employment activity’. 
8	According to her application, the details of the relevant incidents were that:
Representatives of the organisation dismissed me while I was on sick leave with medical certificates and knowingly targeted me and created reputational harm by making false statements about me to the Equal Opportunity Commission. They have also contacted my current employer and made statements about me that placed my employment at risk. 
9	At later stages of this proceeding, the applicant added to her claims, submitting that she had experienced sexual harassment in the workplace, and that she had been discriminated against on the attribute of disability by Odyssey House Victoria.
10	The respondent applied to VCAT for dismissal of the application under the provisions of section 75 and/or section 76 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act).
11	On 16 June 2022, the applicant made an application to VCAT for orders for the joinder to the proceeding of three additional respondents (the proposed second to fourth respondents) Each of those respondents is or was an employee of Odyssey House Victoria. 
12	The respondent opposed the joinder of the three persons sought to be joined as respondents by the applicant.
13	Some procedural steps were undertaken prior to the listing of the present proceeding for a hearing on 15 December 2022. 
THE EO ACT
14	Division 1 of Part 4 of the EO Act prohibits discrimination in employment on the basis of relevant attributes including lawful employment activity and disability.
15	Part 6 of the EO Act prohibits sexual harassment, including sexual harassment by employers and employees.
16	Part 7 of the EO Act prohibits victimisation.
THE VCAT ACT: SECTION 60
17	Section 60 of the VCAT Act states:
Joinder of parties
(1)	The Tribunal may order that a person be joined as a party to a proceeding if the Tribunal considers that—
(a)	the person ought to be bound by, or have the benefit of, an order of the Tribunal in the proceeding; or
(b)	the person's interests are affected by the proceeding; or
(c)	for any other reason it is desirable that the person be joined as a party.
 (2)	The Tribunal may make an order under subsection (1) on its own initiative or on the application of any person.
S. 60(3) inserted by No. 62/2014 s. 28.
(3)	On the application of a person who is entitled under section 73(4) to be joined as a party the Tribunal must order that the person be joined as a party.
THE VCAT ACT: SECTION 75
18	Section 75(1) of the VCAT Act states:
	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.       
19	Section 76 of the VCAT Act relevantly states:
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 … .
20	Part 7 of Schedule 1 relates to proceedings brought under the EO Act. Relevantly, clause 18 states:
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 in respect of an alleged contravention of Part 4, 6 or 7 of that Act if the alleged contravention occurred more than 12 months before the application was made.
21	The principles that guide the Tribunal when considering an application for summary dismissal are well established. The Tribunal should exercise caution before summarily dismissing a proceeding because such action will have the effect of depriving a litigant of the opportunity to have their case decided in the ordinary course. This is of particular importance where the complainant is self-represented. However, in the present case, the applicant is represented, and is herself, according to her submissions, a qualified legal practitioner.
22	The Tribunal should only summarily dismiss a proceeding when satisfied that, because of one of the grounds in section 75, the case is obviously hopeless, unsustainable in fact or in law, or on no reasonable view can justify relief, or is bound to fail. This includes, but is not limited to, a case where a complaint can be said to disclose no reasonable cause of action, or where a respondent can show a good defence sufficient to warrant the summary termination of the proceeding. 
23	It is also established that VCAT should not order summary dismissal in circumstances where the outcome of the case might depend on findings of fact based on contested evidence. 
THE JOINDER APPLICATION
24	The applicant’s application for the joinder of the proposed second to fourth respondents was made on 16 June 2022 some eight months after the original application to VCAT. According to her application for joinder the applicant seeks the joinder of the three employees of Odyssey House Victoria because they were named in earlier complaints she had made to the Victorian Equal Opportunity and Human Rights Commission (VEOHRC), and they were implicated in the claimed harassment, discrimination and victimisation she experienced in her employment with Odyssey House Victoria. 
25	The applicant has provided particulars of claim setting out the alleged discrimination against her by Odyssey House Victoria and by the proposed second to fourth respondents, and includes a claim of sexual harassment against her by a colleague, who is the proposed second respondent, and the involvement of proposed third and fourth named respondents in the alleged discrimination against her, which involves disciplinary proceedings conducted by her employer leading to the termination of the applicant’s employment with Odyssey House Victoria.
26	The respondent (Odyssey House Victoria) objected to the proposed joinder for reasons quite closely related to the respondent’s application for summary dismissal of the original application pursuant to the provisions of sections 75 and/or 76 of the VCAT Act. The respondent submitted that the proceeding before VCAT is the third proceeding brought by the applicant against Odyssey House Victoria following the termination of her employment on 11 June 2020, and one which contradicts the release given by the applicant to the respondent in settling that proceeding, pursuant to a Settlement and Release Agreement.
27	The respondent has submitted that the applicant has sought to join the additional respondents more than 12 months after the conduct which she alleges to have occurred. The respondent says that not only has the applicant filed her originating application and particulars of claim with VCAT outside the 12-month time period referred to in Clause 18 of Schedule 1 to the VCAT Act, but she has further delayed, without explanation, bringing any claim against the proposed second to fourth respondents. 
28	The respondent says that, aside from the delay, the proposed second to fourth respondents ought not to be joined in circumstances where the applicant, in executing the Settlement and Release Agreement in the FWC proceeding, has released each of them from the present claim. This submission of the respondent is closely related to the respondent’s broader submissions that the application should be dismissed in its entirety pursuant to the provision of ss 75 and 76 of the VCAT Act which are discussed further below.
29	I note that while section 60 of the VCAT Act provides that a person may be joined as a party to a proceeding if VCAT considers that the person’s interests are affected by the proceeding, it also confers a broad discretion to refuse to allow the joinder of a person whose interests are affected. The discretion in relation to joinder is ‘unfettered’ but must be exercised fairly and reasonably, according to the particular circumstances of the case.
30	The provisions of the Act do not specify what factors should be taken into account in the exercise of the discretion, but the following factors often assume significance:
•	whether there has been any delay in making the application for joinder;
•	whether there is any prejudice to any party or to the person proposed to be joined as a result of granting or refusing to grant the application; and
•	whether the person proposed to be joined can protect their interests in some way other than becoming a party to the proceeding.
31	In all of the circumstances of the present case, and in particular given the delay in the application for joinder of the proposed second to fourth respondents and the likely prejudice to those respondents given the substantial passage of time (of some three years) since the events on which the applicant’s claims are made, I do not consider the proposed joinder to be desirable, and I therefore refused the joinder application.
THE RESPONDENT’S SUBMISSIONS
32	Odyssey House Victoria has applied to the Tribunal for an order that the proceeding be dismissed pursuant to section 75(1) of the VCAT Act on the basis that the VCAT proceeding is an abuse of process, is vexatious and/or is misconceived. Alternatively, the respondent seeks an order that the proceeding be dismissed pursuant to section 76 of the VCAT Act for want of prosecution.
33	The respondent has made submissions as detailed below.
34	The respondent records that the VCAT proceeding commenced by the applicant on 14 October 2021 is the third proceeding brought by the applicant against the respondent since the respondent terminated her employment on 11 June 2020, and concerns matters which were the subject of two earlier proceedings, each of which were settled on terms acceptable to the parties.
35	The first proceeding brought by the applicant against the respondent was an unfair dismissal claim brought in the FWC under the provision of the Fair Work Act 2009 (Cth). That matter settled pursuant to a Settlement and Release Agreement executed by the parties. 
36	In regard to those proceedings, the respondent’s submissions in the present proceeding set out the applicant’s various complaints about the events that took place prior to her dismissal, which she alleges to involve discrimination and harassment, and the fact of her dismissal. In her witness statement filed in the FWC proceeding, the applicant alleged a series of matters concerning an allegation of sexual harassment as a part of the ‘sequence of events’ leading to her dismissal to support her claim that the dismissal was harsh, unjust and/or unreasonable. Her statement also records the events which the applicant claims to have involved discrimination against her while she was taking sick leave, and which she later came to characterise as discrimination on the basis of disability.
37	The evidence of Odyssey House in the FWC proceeding also addresses in detail the matters concerning the applicant’s allegations of discrimination and sexual harassment and the manner in which the allegations were investigated and responded to by Odyssey House. The evidence also addresses the misconduct concerns which Odyssey House had about the applicant, the disciplinary procedure taken in regard to those concerns, the directions provided to the applicant and her non-compliance with those directions, and the decision making and reasons leading to her dismissal.
38	The second proceeding brought by the applicant against the respondent was a claim for compensation pursuant to the WIRC Act in relation to a mental injury claimed to have been suffered by the applicant arising out of or in the course of her employment with Odyssey House Victoria.
39	After the claim under the WIRC Act was rejected, the applicant instituted proceedings in the Magistrates’ Court, seeking compensation in the form of weekly payments for periods of alleged incapacity, the payment of medical and like expenses, and superannuation.
40	On 21 February 2022, Magistrate Wright made orders disposing of the Magistrates’ Court proceeding in accordance with Minutes of Consent agreed to by the parties. The terms of settlement signed by the parties included:
(a)	An agreement as to consent minutes to be filed with the Court to dispose of the proceeding, including an order that the proceeding be dismissed;
(b)	A denial of liability by Odyssey House; and
(c)	A term that Odyssey House would pay, and the applicant would accept specified medical and like expenses.
41	In seeking the summary dismissal of the present proceeding, counsel for the respondent has submitted that the respondent ought to be able to rely on the Settlement and Release Agreement signed by the parties to conclude the FWC proceedings in October 2020. In particular, the respondent relies on paragraph 2, subparagraphs (a) and (b) as follows:
The Applicant:
Accepts the provision of the Statement and the Payment in full and final settlement and compromise of the Proceedings and the matters the subject of the proceedings;
Acknowledges and agrees that the Respondent may plead this agreement as bar to any claim or proceedings by the Applicant against the Respondent, its directors, officers, employees, contractors or agents in respect of any matters arising out of, touching on, referred to, or otherwise the subject of the Proceedings… .
42	The respondent says that the matters the subject of the present VCAT proceedings are matters which arise out of, are touched on, are referred to or are otherwise the subject of the FWC proceedings, and the respondent is accordingly entitled to rely on the FWC agreement as a bar to the present proceedings. 
43	The respondent makes additional submissions about the Magistrates’ Court proceedings in relation to the applicant’s alleged workplace injury to her ‘mind’ which she claimed to be consequent to ‘sexual harassment, lack of management support, inappropriate and unreasonable management action’ and ‘excessive workload’. That proceeding was finally determined when the Magistrates’ Court dismissed the proceeding with the consent of the parties.
44	The respondent says that the applicant’s agreement to the terms of settlement which finalised two previous proceedings should prevent the applicant raising the same matters, or seeking any relief or remedy within the present proceedings in respect of those matters. 
45	The respondent submits that, having settled the FWC proceeding and the Magistrates’ Court proceeding, the applicant ought not be permitted to agitate the same or similar issues in the present proceeding, and that in the circumstances, the VCAT proceeding is an abuse of process and is vexatious. The respondent says that it is entitled to finality in litigation and ought not be subjected to further claims which contradict the release provided in the FWC proceedings. 
46	The respondent submits that it is also an abuse of process for the applicant to attempt to re-litigate a dispute or issues which have been resolved by the two earlier proceedings – the first being withdrawn by way of settlement and the second settling with a dismissal of the proceeding.
47	The respondent says that for these reasons, the present proceedings are frivolous, misconceived or lacking in substance or are otherwise an abuse of process such that the Tribunal should make an order summarily dismissing the proceeding.
48	Lastly, the respondent says that the proceeding ought additionally be summarily dismissed for want of prosecution under section 76 of the VCAT Act given that each of the alleged contraventions occurred more than twelve months before the applicant made her application. Although the applicant has been represented at all stages by lawyers or advocates, she did not bring the VCAT proceeding in a timely manner, but chose to pursue other legal avenues. 
49	The respondent says that, being entitled to expect finality upon the resolution of the first and second proceedings, the respondent was entitled to expect that any claim arising under the EO Act would be brought within a period of 12 months, as contemplated by Clause 18 of Schedule 2 to the VCAT Act, and there was no reason why it was not. Therefore the Tribunal ought to exercise its discretion to summarily dismiss the proceeding under section 76 of the VCAT Act as well.
THE APPLICANT’S SUBMISSIONS
50	The applicant’s submission is that her claims of discrimination and sexual harassment should not be summarily dismissed. Her submission is that the terms of settlement which concluded her two previous proceedings against the respondent should not be an obstacle to her prosecuting her complaints of discrimination and harassment before VCAT. 
51	The basis of the applicant’s claim of sexual harassment is, in summary, that between 2013 and 2020, a colleague, the proposed second respondent, engaged in inappropriate discussions in the workplace, including discussions of a private, personal and/or sexual nature, and that on or about 28 January 2020, that colleague had a conversation with the applicant during which he made comments to her of a sexual nature. In April 2020, the applicant made a formal complaint to her management about these matters, which were investigated internally by Odyssey House Victoria.
52	The basis of the applicant’s discrimination claim relates to disciplinary proceedings taken against her leading to the termination of her employment with Odyssey House Victoria. Her initial application says that she experienced, discrimination and victimisation based on the attribute of her employment activity. Her later submissions included the sexual harassment claim, and, at the VCAT hearing after a discussion regarding the relevant ‘attribute’ or attributes under the EO Act, the claim that she had experienced discrimination on the attribute of disability, given that she was on a period of sick leave at relevant times.  
53	The applicant says that during the relevant period she was on sick leave, yet was expected to respond to work-related matters, and was pressured to perform work when she was unfit to do so. She further says that the management of Odyssey House Victoria contacted another employer of the applicant, putting her employment and reputation with that employer at risk, and that these actions constitute discrimination and victimisation.
54	The applicant’s submission is that her claim at VCAT does not relate to the circumstances relating to her dismissal, but to her claim that she was asked to work while she was on sick leave and was dismissed from her employment while she was on sick leave. The applicant submits that allegations of misconduct made against her and leading to her dismissal, as well as being unfounded, are not relevant to the matters before VCAT in the present proceeding.
55	In response to the respondent’s application for the summary dismissal of the present proceeding, the applicant submits that the release and surrender contained in the FWC Release and Settlement Agreement operates only in in relation to the FWC proceedings as defined (U2020/8612) and to the matters the subject of the FWC proceeding, as they were set out in the applicant’s submissions and witness statement in that proceeding. She says that, although her sexual harassment claim and aspects of her unlawful discrimination claims were raised or referenced in the FWC proceedings, these references were contextual, in the explanation and prosecution of the unfair dismissal claim and should not act as a bar to prevent her from her proceeding with her claims before VCAT.
56	In relation to the Magistrates’ Court proceeding which settled the applicant’s proceeding under the WIRC Act for ‘injury to the mind’ following the lodgement of a sexual harassment claim and including claims  of lack of management support, unreasonable management action and excessive workload, the applicant accepts that the sexual harassment claim was referred to in the proceeding, but says that the substance of the claim was in what followed it; that is, the conduct of Odyssey House Victoria’s management. She says that the sexual harassment claim did not feature in the determination of the WorkCover insurer and that there is no jurisdiction in the Magistrate’s Court to determine sexual harassment claims.
57	The applicant’s submission is that the agreement reached in settlement of the Magistrates’ Court proceeding, in contrast to the FWC proceeding, does not include any release or indemnity in favour of Odyssey House Victoria and does not provide any bar to future proceedings.
ASSESSMENT OF THE SECTION 75 APPLICATION		
58	I have taken all of the written and oral submissions of the parties into account. 
59	As I am required to do in considering the respondent’s application, I have taken the applicant’s case at its highest.	
60	The central issue in this proceeding is whether the settlement of the applicant’s proceedings brought in the FWC and/or the dismissal by consent of the proceedings brought by the applicant in the Magistrates’ Court should prevent the applicant from having her discrimination and harassment claim adjudicated by VCAT.
61	The terms of settlement of the FWC proceeding are contained the Settlement and Release Agreement executed by the applicant on 5 October 2020, and in counterpart by the respondent on 6 October 2020.
62	As noted above, the respondent argues that it ought to be able to rely on that Agreement, and in particular to clause 2(a) and (b) which state as follows:
2.	The Applicant:
(a)	accepts the provision of the Statement and the Payment in full and final settlement and compromise of the Proceedings and the matters the subject of the Proceedings;
(b)	acknowledges and agrees that the Respondent may plead this Agreement as a bar to any claim or proceedings by the applicant against the Respondent, its directors, officers, employees, contractors or agents in respect of the any matters arsing out of, touching on, referred to, or otherwise the subject of the Proceedings.
63	The applicant says that the respondent cannot rely on the agreement because clause 6 of the Agreement states, in part that:
6.	The Parties agree that subject to its terms this agreement shall operate as a release and surrender only in relation to the Proceedings and the matters the subject of the proceedings.
64	The applicant says that clause 2(b) of the Agreement is limited by an exclusion implicit in clause 6. She says that no claims of sexual harassment were made in the FWC proceeding and these matters were not the subject of the FWC proceeding, which does not have jurisdiction in relation to discrimination and harassment claims.
65	The applicant has argued that even if the sexual harassment claims were raised in the FWC proceeding, this should not operate to stop her from pursuing her claims at VCAT, that there has been no hearing of her sexual harassment claim, and that the Settlement and Release Agreement is silent as to matters of sexual harassment and discrimination.
66	I have carefully considered the applicant’s submissions in this regard, but I do not accept them.
67	In relation to the Settlement and Release Agreement which finalised the FWC proceeding, I do not accept that clause 6 operates as an exclusion to clause 2(b) of the Agreement in the way that the applicant has claimed. I say so because of the inclusion in clause 6 of the phrase ‘subject to its terms…’. Clause 2(b) is a term of the Agreement, and therefore clause 6 should not be regarded as an exclusion to its operation. 
68	I accept the respondent’s submission that the plain meaning of clause 2(b) when it refers to ‘any claim or proceeding’ … ‘in respect of any matters arising out of, touching on, referred to, or otherwise the subject of the Proceedings’ is that the Agreement acts as a bar to any claim or proceeding which falls within that provision.
69	The question therefore becomes that of whether the applicant’s discrimination and harassment claims are matters which ‘arise out of, are touched on, referred to or otherwise the subject of’ the FWC proceeding.
70	Materials filed by the parties in the FWC proceeding included the witness statement of the applicant, and exhibits attached to the statement which reference, among other events, her claimed mistreatment by her employer while she was on sick leave; her claim of being inappropriately propositioned by a work colleague; the formalisation of the sexual harassment complaint against that colleague by the applicant’s husband; and record of an interview between the applicant and the Human Resources (HR) Manager at Odyssey House in relation to the sexual harassment claim.
71	Odyssey House Victoria’s evidence in the FWC proceeding also extensively addressed the matters concerning the allegations of discrimination and of sexual harassment made by the applicant, the investigation of the allegations, and the response to them by Odyssey House Victoria.
72	It is clear to me, on consideration of all of the material before me and on a plain reading of the Settlement and Release Agreement that concluded the FWC proceeding that the discrimination and harassment claims of the applicant were certainly ‘touched on’ and ‘referred to’ in the FWC proceeding. 
73	I do not accept the applicant’s submission that these matters were not intended to be covered or captured by that Agreement, nor that the applicant’s acceptance and acknowledgement contained in clause 2(a) and (b) of the Agreement is excluded or modified by clause 6 of the Agreement.
74	I accept as correct the interpretation of the Agreement as has been put by the respondent.
75	I therefore find that the Settlement and Release Agreement executed by parties in the FWC proceeding operates as a bar to the applicant’s pursuit of her discrimination and harassment claims before VCAT. 
CONCLUSION
76	For the reasons given, I find that the Settlement and Release Agreement in the FWC proceeding was intended by the parties to bring an end to litigation between the parties of all matters covered by the Agreement, and to act as a bar to further litigation of those matters. I therefore find that the applicant’s claims under the EO Act can on no reasonable view justify relief and are bound to fail. 
77	It follows that I find that the respondent has discharged the onus to satisfy the Tribunal that the applicant’s claims in the present proceeding are misconceived and should be summarily dismissed pursuant to section 75 of the VCAT Act for that reason.
78	Because I accept that the application should be summarily dismissed under the provisions of section 75 of the VCAT Act, it is unnecessary for me to turn to the respondent’s alternative submissions about section 76 of the VCAT Act.

M. Cameron
Member