VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
human rights DIVISION
HUMan rights LIST	
vcat reference No. H27/2023	
CATCHWORDS	
Section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) for summary dismissal of application for an order under the Equal Opportunity Act 2010 (Vic).	

APPLICANT:	Kevin Shari	
RESPONDENT:	Spaceship 34300938877	
WHERE HELD:	Melbourne via videoconference	
BEFORE:	Member C. Thwaites	
HEARING TYPE:	Section 75 Summary Dismissal Hearing	
DATE OF HEARING:	29 March and 5 June 2023	
DATE OF ORDER and WRITTEN REASONS	6 July 2023	
CITATION	Shari v Spaceship (Human Rights) [2023] VCAT 765	

OrderS

1	The application for summary dismissal under section 75(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) is granted.
2	The application for an order made by the applicant against the respondent under the Equal Opportunity Act 2010 (Vic) is dismissed.

C. Thwaites 
Member			

APPEARANCES:		
For Applicant	In person	
For Respondent	D. Tarulli, Special Counsel	

Reasons
BACKGROUND
1	This proceeding concerns an application for an order under the Equal Opportunity Act 2010 (Vic) (the Act) made by the applicant against the respondent by way of an application form filed on 19 January 2023. 
2	In his application form, the applicant claimed discrimination based on disability in the provision of goods and services.  
3	The applicant provided further information in support of his claim in a document attached to his application form titled Particulars. 
4	On 17 February 2023, the respondent filed an application for summary dismissal under section 75(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act). The respondent submitted the applicant’s application was misconceived and lacking in substance. 
5	The respondent also submitted that VCAT was the wrong venue and requested an order under section 77 of the VCAT Act striking out the application because the subject matter of the proceedings would be more appropriately dealt with by a tribunal (other than VCAT), court or any other person or body. The respondent provided written submissions in support of their application.
6	On 29 March 2023, VCAT held a hearing of the application for summary dismissal under section 75 of the VCAT Act. I was the presiding member. At the hearing, I spoke to the applicant and to the special counsel representing the respondent.
7	On 29 March 2023, I adjourned the hearing and ordered that by 5 April 2023 the applicant was to file a document titled Particulars of Claim. 
8	I also ordered that by 12 April 2023 the respondent was to notify the Tribunal if they wished to pursue their application for summary dismissal under section 75 of the VCAT Act.
9	On 1 April 2023, the applicant filed a document titled Particulars of Claim.
10	On 12 April 2023, the respondent notified the Tribunal they wished to proceed with their application for summary dismissal under section 75 of the VCAT Act.
11	On 5 June 2023, I held a further hearing of the application for summary dismissal. At that time, I heard oral submissions from the applicant and the respondent. At the conclusion of the hearing, I reserved my decision and closed the hearing.
The legislation
12	Section 75(1)(a) of the VCAT Act states that, 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, is frivolous, vexatious, misconceived or lacking in substance.
ASSESsment under section 75 of the VCAT Act
13	The principles that guide the Tribunal when considering summary dismissal are well established. The Tribunal must 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 applicant is self-represented. 
14	The Tribunal’s role in determining an application under section 75 of the VCAT Act is not to examine the evidence relied upon by the applicant but to proceed on the basis that the applicant will be able to prove all the allegations made in the claim. In an application under section 75 of the VCAT Act, it is appropriate to assume the applicant will be able to prove each fact alleged in the claim.
15	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. In considering an application under section 75 of the VCAT Act, the Tribunal must take the applicant’s case at its highest. 
16	The Tribunal should only make an order summarily dismissing or striking 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.
17	As noted above, the applicant raised his claim by way of a complaint form and attached a document titled Particulars. In his complaint form, the applicant stated he faced discrimination and lack of support for disability. 
18	In his attached document titled Particulars, the applicant set out information in relation to the history of his investment with the respondent. He stated he told the company he suffered from PTSD and needed to speak to a compliance offer and needed some guidance. He stated he was told someone would call him to assist him, but he did not receive a call back.
19	In his document titled Particulars, the applicant stated the condition he had caused him to suffer reduced alertness, shortened attention span, slower than normal reaction time, poor judgement, and reduced awareness. He was working in a COVID facility at the time. He was only getting a few hours’ sleep and was on sleeping pills. The applicant stated the management did not do anything to assist in any way despite him telling them about his condition, even sending them medication and other letters. The applicant claims he was treated unfavourably and suffered hurt and financial loss. He stated he needed the funds to pay for his surgery and he could have made a different decision had he been given support.
20	The applicant stated that he recently told the respondent he needed to have surgery and the loss was only a few thousand dollars to retain his principle. All he got was harsh and unresponsive scripted letters showing no compassion. He felt physically weakened and diminished by the loss of financial resources. This caused him to avoid seeking medical treatment or purchasing food, medicine and therapies needed to maintain his health and viability. He needed surgery soon and needed his principle returned. He stated his world has become overwhelmingly fragile after an incident with the company, that the company put him through. His condition got worse and he subsequently provided a letter from his doctor which outlined his conditions. He attached that document.
21	The applicant stated that by reason of the conduct set out the respondent indirectly discriminated against him within the meaning of section 9 of the Act in that they failed to provide any type of support to assist him in any way. He needed help to understand their contract or structure. Despite asking them multiple times and providing them information on his condition, they provided no assistance. Even now they are refusing to help in any way or even speak to any compliance officer. After doing his research, he found the company had a history of employees acting dishonestly. This was even published in an ASIC report.
22	In their application for summary dismissal, the respondent submitted the applicant was a customer who holds units in their fund, and who was upset that his investment had experienced negative returns which he could not recuperate. They submitted the applicant was claiming discrimination without substantiating which practices of the respondent’s were detrimental, disadvantageous, or unreasonable in relation to his disability.
23	During the hearing on 29 March 2023, I discussed the application with the applicant and respondent. 
24	During the hearing, the respondent submitted that they were struggling to understand the basis of the claim, and believed the claim was really about the performance of the fund. 
25	The respondent submitted the applicant had not provided any claims in relation to direct discrimination as the respondent had failed to allege facts or make claims the respondent did not assist him because he had a disability. 
26	The respondent also submitted the applicant had not identified any requirement, condition or practice that had the effect of disadvantaging a person with an attribute as required by indirect discrimination claims. 
27	During the hearing, the applicant told the Tribunal that prior to making an investment with the respondent, he spoke to someone over the phone and told them he had an injury and needed help understanding the documents. He was told someone would call him back, but they did not. He subsequently made the investment which has now lost money. 
28	The applicant told the Tribunal that in relation to indirect discrimination, he needed help due to his condition and had asked for a call back and they never did. He told them he was saving for surgery, but they did not call him back. He has since lost his employment position. 
29	During the hearing I noted the respondent’s submissions in relation to the lack of clear allegations or claims of discrimination in the application. I noted the definition of direct and indirect discrimination under the Act as well as section 45 of the Act in relation to the requirements for service providers to make reasonable adjustments for persons with a disability.
30	I adjourned the hearing of the application for summary dismissal and ordered that by 5 April 2023 the applicant was to file a document titled Particulars of Claim, setting out in numbered paragraphs each claim or allegation, including specific details about what he claims occurred, why he says that was a breach of the Act, and what orders he was seeking. 
31	As noted above, on 1 April 2023, the applicant filed a document title Particulars of Claim. The document was not set out in numbered paragraphs and repeated some of the information previously provided.
32	In summary, in his document titled Particulars of Claim, the applicant stated he invested in Spaceship Capital more than a year ago. He was saving funds to have surgery and was interested in fixed income return. Prior to opening the account he called the company. He told the company he suffered from PTSD and needed to speak to a compliance officer and was in need of some guidance, as the condition caused him to suffer from reduced alertness, shortened attention span, slower than normal reaction time. He also suffered previous trauma because a financial institute deceived him into investing in a financial instrument where the element of risk was heavily in their favour.
33	The applicant stated he was told someone would call him. However, after depositing funds, no one called him back. He worked in a risky environment to save money for the surgery and did not want to invest in something that was too risky. He stated he made a small deposit assuming it would be placed in a fixed income security. As he did not need the funds immediately, he trusted they would do the right thing and did not require regular check-up on the investment. He also set up a small autopay and assumed everything was in order. He was working in a busy and hazardous environment. He was subject to bullying at his workplace which he had provided proof for as the matter was covered in the press. He provided a newspaper article to Spaceship Capital. The applicant stated he provided Spaceship Capital with doctor’s letters outlining his condition. During the time when he opened his account and sent the respondent multiple emails to settle the matter amicably, he consistently offered them an opportunity to settle the matter by offering to meet them halfway and accept some of the loss.
34	The applicant stated if they been honest with him and communicated with him in a professional manner, he could have been able to make a proper decision and invested in a government bond or a fund with a fixed return linked to a property development. He communicated with them in an honest manner. After only receiving scripted replies from the respondent’s customer service, he asked to communicate with a compliance officer. He was not given the opportunity. Hence, he had no option but to file a case with VCAT.
35	The applicant raised concerns about the respondent’s response to his claims and the issue of costs and his own financial position. 
36	The applicant stated the actions of the compliance officer showed hubris, prejudice, callousness, ineptitude, and lacking common sense and any common decency. This approach strongly influenced how Spaceship Capital dealt with his earlier request. There were many problems with Spaceship’s system, and it had received hundreds of complaints, but the lack of common sense in handling the matter was a cause of them not wanting to assist him. He believed this would have been a management issue prior to him opening account.
37	The applicant stated the disability discrimination act makes it unlawful to discriminate against someone with a disability. There are legal prohibitions on discrimination based upon certain characteristics. The applicant stated it was meant to avoid rules and practices which are not directed at or against people with a particular protected characteristic or have the effect of putting them at disadvantage, and to make reasonable adjustments for disclosed disability unless that adjustment would cause unjustifiable. 
38	The applicant stated that the equality act sets out a list of protected characteristics. The public policy justification for equality laws is that it is wrong for both private individuals and public bodies to treat someone less favourably than they would treat others because of a protected characteristic.
39	The applicant stated that by reason of their conduct, Spaceship Capital indirectly discriminated against him within the meaning of the Act in that effective discrimination laws focus on discriminatory effects not on the intention. 
40	The applicant stated that for the purposes of the principles of equal treatment, Spaceship Capital’s practices disadvantaged a substantially higher proportion of their members of one group of people. Failure to provide any type of support to assist in any way to help to understand their contract or structure despite asking them multiple times. Further, the definition of indirect discrimination does not require the applicant to prove a causal link between the less favourable treatment and the protected characteristic. Instead, it requires causal link between the Spaceship Capital and the particular disadvantage suffered by the group and individual.
41	The applicant stated that the conduct of management breached the Act. In relation to direct discrimination, by reason of the conduct set out in the above paragraphs, the respondent directly discriminated against the applicant within the meaning of the section of the Act by not providing reasonable adjustments. By reason of the conduct set out above, the respondent indirectly discriminated against the applicant within the meaning of section 9 of the Act.
42	During the hearing on 5 June 2023, the respondent noted the applicant had failed to comply with the VCAT orders to set out in numbered paragraphs each claim or allegation, including specific details about what he claimed occurred, why he says that was a breach of the Act, and what orders he was seeking. The respondent submitted the document titled Particulars of Claim did not advance the matter much and did not allege material facts to understand the case against them.
43	The respondent submitted they still did not understand the case being made against them, and even if the applicant were able to prove all the matters alleged (many which they dispute), it would still not make out a cause of action under the Act.
44	The respondent submitted the applicant had failed to identify direct discrimination, and had failed to make claims or identify the less favourable treatment by the respondent because of an attribute, and had not alleged any material facts to support a claim of direct discrimination. 
45	The respondent also submitted the applicant had failed to identify any requirement, condition or practice that was imposed or proposed to be imposed by the respondent to form the basis of a claim of indirect discrimination. 
46	The respondent also submitted that in relation to reasonable adjustments, there was nothing specifically pleaded that the applicant required adjustments. The allegations made by the applicant was that he asked for someone to call him back. The respondent noted they were not a financial advisor, and they could not provide financial advice, and this was clearly set out in their documentation. Requesting the respondent to provide financial advice was not reasonable as they were not licenced to do so. Failure to return a phone call was not discrimination. 
47	The respondent submitted they still do not understand the claims made against them and cannot plead to what has been provided. 
48	The respondents submitted the application should be summarily dismissed as it was misconceived, lacking in substance, hopeless and bound to fail.
49	The applicant told the Tribunal the respondent did not make reasonable adjustments for him. He had not asked for financial advice, he had just wanted the documents explained to him. He told the Tribunal he feels the respondent had discriminated against him. 
50	During the hearing, I again discussed the definition of direct discrimination, indirect discrimination and the section on reasonable adjustments in the Act with the applicant. 
51	The applicant confirmed that it was not in dispute that after he had asked for his call to be returned, he had then proceeded to make the investment with the respondent. He had also set up a small auto pay arrangement.
52	I note the applicant was not legally represented, and therefore I did not expect his documents to be as specific as those drafted by a legally qualified professional. I did explain to the applicant in both hearings the definition of direct and indirect discrimination and referred to and read the section on reasonable adjustments. I also provided the applicant with an opportunity to set out his claims in a manner that would be clearer and easier to understand in relation to claims of direct discrimination, indirect discrimination and claims in relation to reasonable adjustment.
53	Nevertheless, the documents provided by the applicant do not provide clear allegations or claims of prohibited discrimination, and the Particulars of Claim document did not comply with my order to be in numbered paragraphs setting out each claim or allegation, including specific details about what he claimed had occurred, and why he says that was a breach of the Act.
54	I accept the respondent’s submissions that they have struggled to understand the claims made in the applicant’s application form and documents filed with the Tribunal.
55	On the evidence before me, I accept the respondent’s submissions that the applicant has failed to claim or allege facts that could form the basis of a finding of direct discrimination. 
56	I also accept the submissions that the applicant has failed to claim or identify a specific requirement, condition or practice the respondent imposed or proposed to impose that had or was likely to have the effect of disadvantaging persons with a disability, and that was not reasonable.
57	Even taken at their highest, the applicant’s claims do not identify or allege claims or facts that if found proved, could form the basis of a finding of direct or indirect discrimination. The applicant’s claims do not disclose a cause of action of prohibited discrimination under the Act.
58	In relation to the requirements of section 45 of the Act, I note that section states that if a person with a disability requires adjustments to be made to the provision of a service by the service provider in order to participate in or access the service or derive any substantial benefit from the service, the service provider must make reasonable adjustments unless the person could not participate in or access the services or derive any substantial benefit from the service even after making the adjustment.
59	I note that it is not in dispute that the applicant does not give financial advice. The applicant stated he was not seeking financial advice in asking for someone to call him back. 
60	It is not in dispute that even though the applicant did not receive a call back as he had requested, the applicant was able to make an investment with the respondent, and also set up a small auto pay arrangement.
61	Therefore, even taken at their highest, the applicant’s claims do not allege he was unable to participate in or access or derive substantial benefit from the respondent’s services, as he was able to, and did make the investment with the respondent, without the call back. Therefore, the applicant’s claims do not disclose a cause of action under section 45 of the Act.
62	Given the above, I consider the applicant’s claims made in his application of prohibited discrimination in the provision of goods and service, and/or a compliant of failure to provide reasonable adjustments by a service provider, are misconceived and bound to fail.
63	In my opinion, the applicant’s proceeding under the Act is misconceived.
CONCLUSION 
64	Therefore, under section 75(1) of the VCAT Act, the application made by the applicant against the respondent under the Act should be dismissed.
65	Given the above, it is not necessary for me to consider the application made by the respondent under section 77 of the Act.

C. Thwaites 
Member