VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
human rights DIVISION
HUMan rights LIST	
vcat reference No. H390/2022	
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:	Anwai Mukherjee	
RESPONDENT:	Suncorp Staff Pty Ltd	
WHERE HELD:	Melbourne via videoconference	
BEFORE:	Member C. Thwaites	
HEARING TYPE:	Section 75 Summary Dismissal Hearing	
DATE OF HEARING:	23 August 2023	
DATE OF ORDER and WRITTEN REASONS	31 October 2023 	
CITATION	Mukherjee v Suncorp Staff Pty Ltd (Human Rights) [2023] VCAT 1207	

Order

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

C. Thwaites 
Member			

APPEARANCES:		
For Applicant	In person	
For Respondent	A Glacken
M Teasdale	

Reasons

1	This proceeding concerns an application for summary dismissal of the application made by the applicant for an order under the Equal Opportunity Act 2010 (Vic) (‘the Act’) against the respondent, filed on 4 December 2022. 
2	In his application against the respondent, the applicant claimed discrimination and authorising and assisting discrimination based on disability in the area of employment. The applicant filed a number of documents and raised a large number of concerns about what had occurred to him while he was employed with the respondent between October 2005 to March 2011. 
3	The applicant’s claims included that his calls to the helpdesk were terminated, that he was given the third degree after taking a day off sick, that his call priority was changed, and that a colleague said hello to him in the workplace kitchen without reason. The applicant also raised concerns that a cleaner knew his name and knew he was on a committee, and that one time, after a break, when he returned to his desk the cap on his water bottle was open and sitting on top of the bottle. The applicant was concerned this was a case of gaslighting or making fun of his mental health conditions. 
4	The applicant stated he used the employee assistance program (‘EAP’) in 2007 and 2008 and that it had taken him this long to figure out that confidential and sensitive information given to the EAP was leaked to the respondent’s personnel. 
5	The applicant stated he was discriminated against, bullied, harassed, intimidated and faced corruption by the respondent as a result of the leaked information. He stated he was treated less favourably than people without such a mental health condition. He was treated with fear and disgust by colleagues and faced great difficulty in making friends. This resulted in great stress and a psychotic episode requiring hospitalisation. Later, he was forced to resign.
6	The applicant stated his claims did not end in 2011 when he was forced to resign, and that in 2019 he contacted the respondent’s employee council about bullying that had taken place while he was in their employ. The applicant stated that later that same day he received a strange phone call from a male caller who asked if he was speaking to the applicant, and after the applicant confirmed this, the caller then disconnected the call. The applicant stated he was worried whether something illegal could take place using his voice to commit some sort of scam or fraud and that he believed the call was designed to make him worried and stressed and that he believed the call came from the respondent.  
7	The applicant stated he was unable to find employment after resigning and it was due to his experience with the respondent. He claimed the respondent had breached section 6(e) of the Act which related to disability.
Application for summary dismissal
8	In their application for summary dismissal, the respondent submitted the applicant’s claims were a commentary of speculation and anecdotes about events alleged to have occurred as long ago as 2007, with most events alleged to have occurred in about 2008 or 2009.
9	The respondent submitted the applicant had already pursued a formal complaint with the respondent’s employee council in 2008 about a number of the concerns he had raised in the current application, and that in 2018, more than 7 years after he resigned, the applicant sent a complaint of bullying to the respondent. The respondent also submitted that in 2019, the applicant lodged a worker’s compensation claim against the respondent which was declined in 2019. Three years later he lodged a complaint with the Victorian Equal Opportunity and Human Rights Commission (‘VEOHRC’) which was closed in September 2022. He then filed the current application with the Victorian Civil and Administrative Tribunal (‘VCAT’) in December 2022.
10	The respondent submitted that the applicant’s claims were not properly particularised and did not link any material facts to alleged contravention of the Act.
11	The respondent also submitted it was an abuse of process to require the respondent to address vague allegations after so much time had passed. 
12	The respondent submitted the applicant had more than enough time to raise a complaint of prohibited discrimination, and that he was fully aware of his rights to make a complaint about his employment (and did so). The respondent noted the applicant had resigned 12 years ago.
13	The respondent made detailed written submissions about the applicant’s failure to clearly articulate which sections of the Act he alleged the respondent had breached or contravened. The respondent also submitted the applicant had failed to allege material facts with sufficient specificity for them to respond to adequately. The respondent submitted the delay in making his application to VCAT had caused extreme prejudice to the respondent.
14	In relation to the applicant’s claims about a telephone call in 2019 the respondent submitted their records indicated he contacted the EAP in 2018 not 2019. 
15	The respondent submitted that they could see no reasonable explanation why the applicant reached the conclusion that the telephone call the applicant was concerned about came from the respondent. The respondent submitted there was no evidence to support this whatsoever, and that the respondent does not understand what the applicant is saying amounts to discrimination. 
16	The applicant submitted that even if the event took place, it does not, and cannot, amount to discrimination in the area of employment under the Act as the applicant had not been employed by the respondent since 2011.
17	The respondent submitted that the claim of a phone call in 2019 should be dismissed as misconceived and lacking in substance.
Response to application for summary dismissal
18	In his response to the application for summary dismissal the applicant again stated he believed the respondent had breached section 6(e) of the Act, and that disability was defined in section 4(1) of the Act, and that the respondent had not provided any reasonable explanation for the facts in his statement of claim. The applicant posed a number of questions about why things happened to him, and submitted the respondent had to prove they did not discriminate against him.
The legislation
19	Section 75(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘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 –
a.	is frivolous, vexatious, misconceived or lacking in substance; or
b.	is otherwise an abuse of process.
20	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. 
Hearing
21	During the hearing of the application for summary dismissal held on 23 August 2023, I spoke to applicant and respondent about their written submissions.
22	The respondent referred to their written submissions and noted their concerns about the vagueness of the documents filed by the applicant, and the amount of time that had elapsed between most of the events referred to by the applicant and the time he raised his application with VCAT.
23	The respondent submitted that they no longer had employee records for 2007 or 2008 as they are only required to keep such records for seven years. The respondent submitted that any recollection of events after such a long time had elapsed would not be reliable, and that many of the people named in the applicant’s documents no longer worked for the respondent. The respondent submitted they would suffer extreme prejudice if required to respond to the allegations after such a long period of time had elapsed.
24	The respondent submitted that the claims that the applicant made relating to alleged events while he was employed should be dismissed as an abuse of process due to the time that has elapsed, and that the claim of a phone call in 2019 should be dismissed as misconceived and lacking in substance.
25	The applicant’s responses during the hearing are discussed below. 
Assessment under section 75 of the VCAT Act
26	In relation to whether the delay in bringing the claim is an abuse of process, the decision in Burrows v State of Victoria (Department of Education) [2002] VCAT 1655 [38] sets out the legal principles to be applied when considering this issue. 
27	The primary consideration is the interests of justice. Factors to be considered include whether the delay was inordinate or unreasonable and inexcusable, any explanation for the delay and the adequacy of that explanation, the nature of the proceeding, whether the respondent was responsible for the delay, any prejudice caused to the respondent if the proceeding continued, and the effect of the delay on the quality of justice. 
28	The Tribunal should also take into account the ability to conduct a fair hearing of the proceeding, such as whether significant documents have now been lost or destroyed, whether the witnesses' memories are so impaired that the quality of evidence will be compromised, whether witnesses have died and their importance is such that the quality of evidence is compromised; and the public interest. These factors must be balanced against each other, and none are determinative. 
29	The decision in Burrows also noted that while one of the objectives of the Act was to provide redress for the victims of discrimination and those making complaints should not be unfairly shut out from pursuing a claim, this must be balanced against matters such as the need for finality and the unfairness to a respondent which is caused by lengthy uncertainty as to whether or not a claim will be brought. 
30	During the hearing, the applicant told the Tribunal the reasons for the delay in making his application to VCAT was that the respondent had kept him in the dark, and that he had been lied to and gaslighted due to a conspiracy by a number of employees of the respondent. 
31	On further questioning in relation to why the applicant did not raise his complaint and concerns earlier, he told the Tribunal it was because he did not know what to make of all of it, and that maybe some of it was a one off incident, and he did not know if it was worth taking action at the time, and he could not be certain what had happened, and it only occurred to him later. 
32	The applicant confirmed he had raised some concerns through the employee council who helped draft a document for him, but that he was discouraged from going external or getting support from his union.
33	The applicant confirmed he had made a worker’s compensation claim in 2019 which was declined, and he told the Tribunal it was only after this that he came up with the idea of discrimination. He then lodged a complaint in 2020/2021 with the VEOHRC and after that complaint was closed, he had filed his application with VCAT.
34	In relation to the concerns raised about the difficulty for people recalling events from so long ago, the applicant submitted certain people would be able to recall certain events, and he believed people would remember gaslighting, bullying and intimidating him.
35	He told the Tribunal he did not raise his complaint of discrimination at the time as he was not aware of his rights at that time.
36	I have taken into consideration the applicant’s medical conditions as outlined in his documents, and that he was unable to find employment for over five years after resigning from the respondent, and that he is not represented in this matter. 
37	There is no dispute that the applicant raised some of his complaints with the respondent while employed with them, and that he resigned his employment with the respondent in 2011, and that he later made a worker’s compensation claim in 2019.  There is also no dispute the applicant raised a complaint of discrimination in 2020/2021 with the VEOHRC.   
Delay
38	In relation to the applicant’s claims relating to the time he was employed with the respondent, I do not accept the applicant’s submissions that the delay in raising his complaints of prohibited discrimination was caused by the respondent keeping him in the dark, or that his concerns that he had been lied to and gaslighted and that there was a conspiracy by employees, adequately explains the delay.  I found the applicant’s submissions in relation to this hard to follow and lacking rationality.
39	I find the applicant’s explanations for the delay do not excuse the delay, and I do not accept that ignorance of his rights or the law relating to discrimination provides a reasonable excuse for the delay. 
40	I note the applicant had raised some of his concerns previously with the respondent, and that he had the opportunity to seek advice from his union even though he chose not to do so. I also note the applicant raised a worker’s compensation claim in 2019 but did not take the opportunity to make a complaint of prohibited discrimination at that time.  It would appear the applicant tried all other avenues before forming his complaints into a complaint of prohibited discrimination. I find the applicant’s explanation for the delay inadequate.  
41	In relation to the applicant’s claims relating to the time he was employed with the respondent between 2005 and 2011, I find the delay in making his complaints of prohibited discrimination inordinate and unreasonable, and I do not accept his excuse for the delay, and therefore I find the delay inexcusable.
42	I do not accept the respondent was in any way responsible for the delay.
Prejudice to the respondent
43	I accept there would be considerable prejudice to the respondent if these claims were allowed to continue.  I accept the respondent no longer has many of their employment records from that time period, and I accept that many of the people referred to in the applicant’s documents no longer work for the respondent.
Effect of the delay on the quality of justice
44	I do not accept the applicant’s submissions that the people involved would be able to recall the events in detail.  I note the applicant himself was unable to provide details such as specific dates for the events described in his documents. He was able to make reference to some of the years when he thought the event occurred, such as in 2007, or sometime in 2008 or 2009, but did not provide any more specific detail.  
45	I accept the submissions that the delay means the quality of the evidence would be compromised, and that the delay has adversely affected the ability to conduct a fair hearing.
Interests of justice
46	I find in the interests of justice that the applicant’s claims that relate to the time when he was employed with the respondent between 2005 and 2011 should be dismissed on the basis that allowing them to proceed would be an abuse of process. Therefore these claims should be dismissed under section 75(1)(b) of the VCAT Act.
Misconceived and lacking in substance 
47	In relation to the claims about a telephone call the applicant received in 2019, many years after he left the employ of the respondent, I accept the respondent’s submissions that the applicant has failed to identify how those allegations are connected to the respondent. I also accept the submissions that, even taken at their highest, this claim could not succeed as a claim of prohibited discrimination in the area of employment against the respondent. I accept this claim is bound to fail.
48	Therefore I find the applicant’s claims in relation to the telephone call in 2019 are misconceived and lacking in substance and should be dismissed under section 75(1)(a) of the VCAT Act.
CONCLUSION 
49	Given the above findings relate to all the claims and relevant allegations raised by the applicant, in my opinion, the applicant’s entire proceeding under the Act is misconceived and lacking in substance and an abuse of process.
50	Therefore, under section 75(1)(a) and (b) of the VCAT Act, the application made by the applicant against the respondent under the Act should be dismissed.

C. Thwaites 
Member