VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
human rights DIVISION
HUMan rights LIST	vcat reference No. H113/2023	
CATCHWORDS	
Discrimination – dismiss for want of prosecution – masks exemptions and services from a medical practice – Victorian Civil and Administrative Tribunal Act 1998 (Vic), section 76.	

complainant	Stephen Johnson 	
RESPONDENT 	Springvale South MC Pty Ltd as trustee, trading as Springvale South Medical Centre	
WHERE HELD	414 La Trobe Street, Melbourne	
BEFORE	A. Smith, Senior Member	
HEARING TYPE	Strike-out hearing, videoconference 	
DATE OF HEARING	14 November 2024	
DATE OF ORDER	14 November 2024	
DATE OF WRITTEN REASONS	20 November 2024	
CITATION	Johnson v Springvale South MC Pty Ltd as trustee, trading as Springvale South Medical Centre (Human Rights) [2024] VCAT 1085	

Order
Under section 76 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) the application is dismissed for want of prosecution.

A. Smith
Senior Member			

APPEARANCES:		
For Complainant	In person	
For Respondent	Ms F Thomas, solicitor	

Reasons
1	The respondent to these proceedings applied for an application about disability discrimination to be dismissed under section 76 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) because of delay in notification to the respondent about the application. 
Background
2	On 5 April 2023, VCAT received an application for orders under the Equal Opportunity Act 2010 (Vic) about discrimination on the basis of disability in the provision of goods and services.  The application attached some medical information and a copy of a complaint to the Victorian Equal Opportunity and Human Rights Commission (‘VEOHRC’) (undated) in place of detailed explanation in the application itself.  
3	The VEOHRC document describes the applicant’s disability as ‘stroke, sleep apnoea, asthma and heart disease.’  In the document, he alleges a single incident of discrimination occurred on 11 November 2022 when he attempted to make an appointment to see a doctor at a practice he had been attending for six years.  He says he was refused an appointment because he could not wear a mask and a document he referred to as an exemption was not accepted as an exemption by the receptionist.  The respondent denies that the incident occurred as described in the document. 
4	The VCAT application pro forma includes an acknowledgement that ‘[the applicant] will provide a copy of [their] application to the respondent/s (unless I am making a sexual harassment claim)’.  Although the applicant did not check the box beside that statement, he did check a preceding box that the information was true and correct, and he signed and dated the application underneath. 
5	The respondent was unaware of the application until VCAT sent a notice on 28 May 2024 of a directions hearing set for 9 July 2024.  At the applicant’s request, that directions hearing was deferred until 3 September 2024.  In the interim, the respondent first received a copy of the application on 5 August 2024 from VCAT.  At the directions hearing, a timetable was established for the exchange of materials for a dismissal application.  I heard the dismissal application today.  The videoconference hearing was attended by the applicant and his wife, the solicitor for the respondent and two observers. 
6	The VCAT file shows that VCAT contacted the applicant on 29 April 2024 to enquire whether he wished to continue with the application.  He responded on the same day in the affirmative.  On 27 May 2024, VCAT made enquiries whether he was in need of any special assistance in the proceedings and he replied on the same day that he would not, beyond assistance from his wife/carer.
The application for dismissal
7	The respondent’s written submissions concern dismissal for want of prosecution, being the applicant’s failure to bring the application to the attention of the respondent and failure to serve them with a copy of the application.  It relies on the following provisions:
Rule 4.09 of the Victorian Civil and Administrative Tribunal Rules 2018 which states:
… an applicant must serve a copy of an application or referral on each other party or other person entitled to notice of the application or referral under the Act, the enabling enactment or these Rules within 7 days after lodging the application or referral with the principal registrar.
Section 76(1) of the VCAT Act which states:
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.
	and Schedule 1, clause 18 (imported by section 58(2)) which states:
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.
8	Referring to the decisions in Fire Rescue Victoria v Wheatley (2023) VSC 269 and Kunc v Bunnings Group Limited [2024] VCAT 757 (‘Kunc’), the respondent argues that factors to take into account are:
a.	Any explanation for the delay
b.	Whether the respondent was responsible for the delay
c.	Any prejudice caused to the respondent by the delay
d.	The effect of the delay on the quality of justice
e.	The public interest 
9	Essentially the respondent submits that there were 18 months between the alleged incident and its first knowledge of the VCAT application and a further two months before it received the application which was from VCAT, not the applicant.  It notes that the applicant knew the respondent’s premises from being a patient there, knew the email addresses for it and its insurer from the VEOHRC processes and there was no excuse for failing to serve the application.  As a result of this, the disadvantage to the respondent has been that it has lost contact with two of three employees who would have been witnesses to the alleged incident and the remaining employee’s memory is now impaired by the length of time since the incident.  It cannot therefore have a fair hearing, there has been an abuse of process and the interests of justice cannot be served by proceeding to a full hearing. 
10	In answer to a question from me about why the respondent could not have taken statements from witnesses during the VEOHRC process, the respondent replied that process is about conciliation and the respondent was entitled to assume, when it had no evidence to the contrary, that the applicant had decided not to continue with proceedings when the case was closed at VEOHRC. 
11	A discussion of the merits of the application was not part of the respondent’s written submissions but was referred to in the oral submissions.  The respondent says that it made or offered reasonable adjustments to the applicant, that to offer further adjustments would have led to unjustifiable hardship, that it was complying with strict health and safety regulations in place at the time because of the COVID-19 protocols, and that there is no reasonable prospect of success for the applicant’s application.  If the matter proceeds to a hearing, there will be a ‘raft’ of expert witnesses called to explain why wearing masks was important in medical practices at that time, there will be evidence about the structure and operations of the medical practice and why certain information would not have been available to the receptionist who spoke with the applicant during the alleged incident.  The respondent’s representative indicated a long and involved hearing process, should there be a substantive hearing on the merits of the application. 
the applicant’s response to the dismissal application
12	The applicant filed a written response to the dismissal application and made submissions at the hearing.  The applicant denies being tardy in the service of the application and states that he believed that VCAT would serve the application for him, which is why he did not check the box beside the statement about service.  He claims a distinction between his case and the Kunc case, given the delay in that case was 22 months and there was a dispute about the evidence in relation to the delay. 
13	In oral submissions, the applicant stressed that he has had a stroke and numerous other physical ailments that cause him difficulty in day-to-day life.  The applicant did not go into detail about how his stroke affected his ability to act promptly in this matter, but I infer that having had a stroke makes daily activities more difficult and time consuming for him.  He says he acted promptly when VEOHRC closed its case on 23 March 2023, by lodging the VCAT application on 5 April 2023.  The applicant states that the respondent does carry some of the fault for the delay in that it waited from the notice of hearing on 28 May 2023 until 5 August 2023 to obtain a copy of the application from VCAT. 
14	The applicant reiterated his evidence about the mistreatment by the medical practice staff and the discrimination he suffered.  He explained that he is unable to wear a mask because of a panic reaction he suffers (which is not the disability named in the application).  He disputed that there could have been three witnesses as he only spoke to one person. However, later he spoke about the structure of the area in which the receptionist sat and said ‘anyone could hear’. 
15	Finally, the applicant noted that he grew up in South Africa when apartheid was in operation and he detests discrimination of any form, so it was very important for him to bring this claim.  However, he is also in very poor health and would like these proceedings to be over today one way or the other so that he can concentrate on his health, rather than stressing over these proceedings. 
consideration 
16	The applicant’s explanation that he believed that VCAT had indicated that it would effect service on his behalf is not a strong explanation for why he did not bring the application to the attention of the respondents.  I infer that he had an expectation that VCAT would provide a similar level of assistance to him as was offered in the VEOHRC process and that VCAT would make all arrangements.  The excuse is only slightly plausible in that it goes against the clear requirements in the legislation and the form itself. 
17	Prompt service of documents is an important part of procedural fairness.  The burden of service rests on the applicant (or the author of the document) as set out in the rules.  In this case, because of a lack of service by the applicant, the respondent was not aware of any proceedings until well after the time limit for making an application and was entitled to believe that no proceedings would be issued. 
18	I accept that the respondent is in no way responsible for the delay in knowing about the application between 5 April 2023 and 28 May 2024.  I do not accept that it ought to have made its own arrangements to obtain a copy of the application prior to 5 August 2024.  The primary responsibility for service of the application is on the applicant.  It is a reasonable deduction that the respondent obtained the copy as it was preparing for the first directions hearing on 3 September 2024.  A more unreasonable (but still relatively blameless) respondent may have waited until the directions hearing itself and sought an adjournment from that date to acquaint itself with the contents.  Therefore, I also do not accept any fault on the part of the respondent for the delay between 28 May 2024 and 5 August 2024.
19	The respondent has some documentary evidence of the alleged incident, including an incident report filed by the staff member who spoke to the applicant.  It has evidence of the regulations in force around wearing masks at the time.  But it has lost two of three direct witnesses to the event, so it lacks corroboratory evidence of the first witness’s evidence.  That is a significant loss of information that would assist it in the preparation of its defence and its presentation at hearing, or the quality of justice. 
20	In consideration of the issue of public interest, I note the decision in Myes v Alfred Hospital [2023] FCA 833.  In that case, a woman claimed disability discrimination when in a series of incidents while in hospital she was made to wear a face shield due to COVID-19 protocols because she was unable to wear a mask.  The woman instituted a complaint with the Australian Human Rights Commission which did not resolve proceedings.  Then there was a six-and-a-half-month delay before she lodged proceedings in the Federal Court.  She sought an extension of time for the lodgement of the application.  In that decision, Wheelahan J noted that protocols around COVID-19 applied universally and were not applied because of her disability.  He noted that time limits are not to be ignored and he noted that, while he accepted the applicant’s explanation for the delay, it did not outweigh the fact of the delay and that the applicant must bear responsibility for her oversight.  That conclusion meant that more weight is applied to the issues of prejudice and merits. 
21	In consideration of the merits, Wheelahan J said the following when he determined that the case had insufficient merit to allow an extension of time:
In this case, context is important. I have already referred to the directions in force under the Public Health and Wellbeing Act. It is impossible to ignore that the respondent was providing medical services in June 2021 when there was a public health emergency on foot in relation to a disease caused by a contagious virus that resulted in the death of vulnerable people. Staying with the legal context, in addition to the specific obligations arising under various directions given by the Chief Health Officer, the respondent had stringent legal obligations as an employer, as an occupier, and had non-delegable duties of care to all its patients as the operator of a public hospital. It is also obvious that the consistent application of hospital policies addressing the COVID-19 risk would have been desirable in order to maintain staff morale and to create an environment where the apprehensions of staff, patients, and any visitors, were minimised. In the above legal and practical context, it would be counter-intuitive, and indeed it would offend common sense, to think that the respondent discriminated against the applicant in the way alleged because it took the protective measures of requiring the applicant to wear a face shield instead of a face mask, and directed her to a cubicle rather than a public waiting area. These were but particular implementations of policies and practices directed to requiring all persons on the hospital premises to take reasonable measures for the safety of others, and for their own safety, so as to minimise the risk of transmission of the virus.
22	Taking into account all of the above, I conclude that the applicant was probably confused about his obligations having commenced proceedings in VCAT.  However, he did not take steps to actively prosecute the action, preferring instead to wait for VCAT to act on his behalf.  This, and the nature of his illness, caused the delay in service.  I accept his explanation, but it means that I will treat the issues of prejudice to the respondent and justice of the case more seriously. 
23	There is real prejudice to the respondent in that it is deprived of the evidence of two of its witnesses.  There would be obvious work-around options to obtain the evidence of those witnesses, but the prejudice does not need to be severe in the context of a delay of over 12 months. 
24	The justice of the case, in my view, relates to four main issues.  First, the respondent will not have the benefit of a fair hearing when the evidence of two key witnesses may be unobtainable.  Second, the respondent was entitled to assume that the applicant had abandoned his claim against it when such a long time had elapsed.  Third, the applicant himself does not wish the proceedings to continue past today because of his health.  Finally, pursuing the complaint may well be futile as it is entirely likely that if there was a substantive hearing on the merits, the considerations set out by Wheelehan J above will be in play and lead to the same result.  There does not appear to be any justice in allowing this matter to proceed to a substantive hearing and the application is dismissed for want of prosecution. 

A. Smith
Senior Member