VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
human rights DIVISION
HUMan rights LIST	
vcat reference No. H141/2020	
CATCHWORDS	
Equal Opportunity Act 2010 – application alleges discrimination in the provision of goods and services – whether conduct of Priest in relaying message and organising a school reunion was provision of a “service” within the meaning of section 4 of the Equal Opportunity Act 2010; whether dogs were “assistance dogs” where no evidence of training provided to alleviate the effects of impairment
Sections 4, 7, 8, 9, 44, 45, 125.	

APPLICANT	Michael Phillips	
RESPONDENT 	Catholic Archdiocese of Melbourne	
WHERE HELD	Melbourne via teleconference 	
BEFORE	Senior Member B. Hoysted 	
HEARING TYPE	Hearing 	
DATE OF HEARING	6 May 2021	
DATE OF ORDER and written reasons	22 June 2021	
CITATION	Phillips v Catholic Archdiocese of Melbourne (Human Rights) [2021] VCAT 661	

Order
The application dated 20 April 2020 is dismissed.

B. Hoysted
Senior Member			

APPEARANCES:		
For applicant	In person 	
For respondent	Ms R. Sharpe of counsel
Ms M. Mann, solicitor 	

Reasons
Background
1	The applicant alleges that the respondent has breached the Equal Opportunity Act 2010 (Vic) (EO Act) by unlawfully discriminating against him.
2	The applicant says that he was discriminated against in the context of the provision of “pastoral care” services and the services of “convening a school reunion”:
a	on the basis of an attribute, namely “disability’ within the meaning of paragraph (d)(i) of the definition of that term in the EO Act; and
b	on the basis of a characteristic that a person with that attribute generally has, as provided for in subsection 7(2) of the EO Act, in that he is accompanied by or possesses an assistance aid, namely one or more assistance dogs.
3	The claim is framed against the Catholic Archdiocese of Melbourne. The allegations relate to Father (Fr) John Hannon who a diocesan priest. Michael Phillips alleges that the Archbishop of Melbourne, as the head of the Catholic Archdiocese of Melbourne, is responsible for the actions of a priest within the Archdiocese.
4	The particulars of the alleged discrimination were settled at a hearing before Member L. Johnson on 20 November 2020 and are contained in orders made by her on the same date.
5	The first allegation relates to a telephone discussion between the priest, Fr Hannon and the applicant. Mr Phillips and Fr Hannon are known to each other. In the 1960’s they both completed the secondary education at the Christian Brothers’ College in St Kilda. In February 2019, Mr Phillips had advised Fr Hannon that one of their school colleagues was seriously ill in hospital. Fr Hannon visited the mutual friend at Mr Phillips’ request. Separately, Mr Phillips, with his two dogs, had visited the friend in hospital. In February 2019, Fr Hannon rang Mr Phillips. The applicant claims:
a	the respondent discriminated against the applicant on the basis of disability in the provision of pastoral care services on 5 February 2019 when Fr Hannon “rang in a very abusive way to say we’d done the wrong thing by visiting” a friend in hospital.
6	The second allegation relates to a 50-year reunion of students who had matriculated from Christian Brothers College in St Kilda in 1969. That cohort included both Fr Hannon and Mr Phillips. Fr Hannon had emailed some former students, including the applicant, inviting them to attend a reunion to be held on 27 September 2019 at the parish centre at Essendon. The applicant claims:
a	the respondent discriminated against the applicant on the basis of disability in the provision of pastoral care services, or alternatively, in the provision of school reunion services, on 27 September 2019, when Fr Hannon “yelled at [the applicant and his dogs], gestured at us and followed us about” at a Christian Brothers’ College get together.
7	I commenced the final hearing on 1 April 2021 and concluded it on 6 May 2021. At the conclusion of the second hearing, I reserved my decision to be provided with these written reasons.
THE LEGISLATION
The EO Act 
8	Section 8 of the EO Act defines direct discrimination as occurring if a person treats or proposes to treat, a person with an attribute unfavourably because of that attribute.
9	Section 6 of the EO Act identifies attributes on the basis of which discrimination is prohibited. This includes disability.
10	Section 7 of the EO Act describes discrimination as follows:
…
(2)	Discrimination on the basis of an attribute includes discrimination on the basis – …
(b)	of a characteristic that a person with that attribute generally has; …
(3)	For the purposes of subsection (2), if a person with a disability is accompanied by or possesses an assistance aid, being accompanied by or the possession if that assistance aid is taken to be a characteristic that a person with that attribute generally has.
(4)	In subsection (3) –
assistance aid means any of the following that alleviates the effects of a person’s disability – …
		(d)	an assistance dog.
11	“Assistance dog” is defined in section 4 of the EO Act as:
A dog that is trained to perform tasks or functions that assist a person with a disability to alleviate the effects of his impairment.
12	Part 4 of the EO Act sets out those protected areas of public life where discrimination is illegal. This includes, at section 44, the provision of goods and services.
13	In order to prove his claim, Mr Phillips must establish that:
a	he has a disability within the meaning of the EO Act; and
b	at the time of the two events complained of, the respondent was providing him a “service” within the meaning of the EO Act; and
c	he was directly or indirectly discriminated against in the provision of that service by the respondent or by the respondent failing to provide reasonable adjustments and that the discrimination was because of an attribute.
ANALYSIS
Did the conduct of Fr Hannon in the telephone conversation with Mr Phillips in February 2019 and or at the school reunion on 27 September 2019 amount to a service?
14	In evidence given at hearing, Mr Phillips asserted that Fr Hannon was, in the course of a telephone discussion in February 2019, providing him pastoral care services. Mr Phillips gave evidence that Fr Hannon telephoned him, presumed to be at the request of the mutual friend, to say that the taking of the dogs to the hospital had not been appreciated. Mr Phillips alleged that Fr Hannon had told him that he had done the wrong thing, abused him and was unkind, all of which was unnecessary.
15	In relation to the school reunion, Mr Phillips claimed that the service being provided by Fr Hannon was “pastoral care services” or alternatively, “school reunion services”. 	Mr Phillips described having received an email invitation from Fr Hannon to attend the school reunion. Mr Phillips claimed that the signature block on the email supported his position that Fr Hannon was providing a service on behalf of the Catholic Archdiocese of Melbourne. Mr Phillips claimed it was clear that Fr Hannon was acting in the role of priest and this was supported by the reference in the email to the parish centre being “his place”. Mr Phillips said it was clear, if Fr Hannon was not working as a priest he wouldn’t be living at “his place”. The email signature block read:
John Hannon
Parish Priest
St Therese’s Essendon.
16	Mr Phillips’ argument was that pastoral care is what priests do and is a service, Fr Hannon is a priest, therefore everything done by Fr Hannon can be characterised as pastoral care and, for the purposes of the EO Act, as a “service”. 
17	Ms Sharpe for the respondent submitted that neither Fr Hannon nor the Catholic Archdiocese of Melbourne was providing Mr Phillips with a service or goods. Ms Sharpe submitted that the telephone conversation in February 2019 was a private discussion between two people who knew each other and who both knew the third person, their mutual friend in hospital.
18	Fr Hannon gave evidence that he had telephoned Mr Phillips at the request of their mutual friend, who Fr Hannon had visited in hospital. His evidence was that the friend had asked that he telephone Mr Phillips to “ask him to please not bring his dogs back into the hospital and to not interfere in family or personal matters by contacting his ex-wife”. 
19	In relation to the school reunion on 27 September 2019, Ms Sharpe submitted that Mr Phillips had not established either that the organising of or the reunion itself was a service within the meaning of the EO Act. Ms Sharpe submitted that the invitation email written by Fr Hannon and addressed to “dear friends” and signed off “warmest wishes, John” made it clear that this was a personal invitation. 
20	Fr Hannon gave evidence that:
the function was a private function organised in my personal capacity. It was not organised by or on behalf of the Archdiocese. We, as a group, decided to use my home as the venue purely out of convenience.
21	While the term “services” is included in the definition section of the EO Act, it does so by way of providing examples, none of which are directly helpful in this matter. 
22	I note the approach of the Victorian Civil and Administrative Tribunal (VCAT) and Courts in determining whether a particular act was a “service” has been to consider the question: “whether the act involves helpful or beneficial activity” to the relevant class of person to which the person alleging discrimination belongs.
23	It is my view that the telephone call from Fr Hannon to Mr Phillips in February 2019 was not a service provided to Mr Phillips by or on behalf of the Catholic Archdiocese of Melbourne. Fr Hannon was, in a private capacity, relaying a private message from one person known to him to another person, also known to him. Fr Hannon’s conduct, did not provide a benefit to Mr Phillips and cannot properly be characterised as providing a service to him.
24	I am similarly not satisfied that the organisation and hosting of the school reunion by Fr Hannon was a service provided by or on behalf of the Catholic Archdiocese of Melbourne. While Mr Phillips might have argued that he received a benefit from attending the reunion, I find that the event was a private one, organised principally by Fr Hannon and offered to members of a fraternity of which both Mr Phillips and Fr Hannon were equal members.
25	The respondent called two witnesses who both gave evidence, unchallenged by Mr Phillips, that the reunion was not organised by the Catholic Archdiocese of Melbourne but by Fr Hannon, in a private capacity.
26	Those findings are sufficient to dismiss the application however, for completeness, I will set out my views on other matters raised by Mr Phillips.
Did the Catholic Archdiocese of Melbourne discriminate against Mr Phillips in contravention of the EO Act?
27	As noted earlier, to make out a claim of discrimination under the act, Mr Phillips must establish that:
a		he has a protected attribute under section 6 of the EO Act; and
b		the Catholic Archdiocese of Melbourne directly or indirectly discriminated against him on the basis of that attribute or failed to make a reasonable adjustment for him.
Protected attribute?
28	Mr Phillips has submitted that he has a mental illness which constitutes a disability within the meaning of the EO Act. Mr Phillips did not provide a report or call expert evidence to establish his claim of being affected by disability. That said, Ms Sharpe for the respondent advised that her client did not contest Mr Phillips’ submission on that point. In such circumstances, I will assume for the purposes of my analysis that Mr Phillips does suffer from a mental illness which amounts to a disability within the meaning of the EO Act.
29	Mr Phillips also claims that his dogs are “assistance dogs”. Mr Phillips produced no evidence or witness to support that claim. That is relevant because the EO Act makes clear that an assistance dog is an assistance aid for the purposes of section 7(4) of the EO Act. The effect of that provision is to deems an “assistance aid” to be a manifestation of the disability for the purposes of the EO Act, such that discrimination on the basis of the assistance dog would be considered to be discrimination on the basis of the disability.
30	In order to be considered to be an “assistance dog”, Mr Phillips would need to prove that the dogs “are trained to perform tasks or functions that assist a person with a disability to alleviate the effects of his or her disability”.
31	Ms Sharpe, for the respondent, put to Mr Phillips that Judge Woodward, sitting as a Vice President of VCAT, had found Mr Phillips had not proved that his dogs had been trained to alleviate the effects of his disability and were therefore not assistance dogs within the meaning of the EO Act. Mr Phillips denied this and also denied that his dogs had been declared to be menacing dogs under the Domestic Animals Act 1994.
32	While it is possible that Mr Phillips’ dogs had, since May 2019, received the training necessary to alleviate the effects of his disability, Mr Phillips produced no evidence to establish that.
33	In the absence of evidence to show that the dogs had been trained to alleviate the effects of his disability, I find that Mr Phillips’ dogs, Rishi and Goethe, are not assistance dogs within the meaning of the EO Act. 
Was the applicant treated unfavourably because of his attribute?
34	Mr Phillips gave no evidence about what was said by Fr Hannon in the telephone conversation other than to say that Fr Hannon had told him “he’d done the wrong thing, abused him, was unkind – all of which was unnecessary”. On that basis, I was not satisfied that Fr Hannon made reference to any attribute or treated Mr Phillips unfavourably because of his attribute. 
35	In relation to the reunion, Mr Phillips described being in the room at the parish centre, together with his dogs, along with about 50 other attendees. He claimed that at the reunion, he was speaking with Gerard Doorakkers when Fr Hannon approached and harassed him to remove the dogs from the room in which the function was being held. Mr Phillips claims he told Fr Hannon the dogs were assistance dogs. Mr Phillips claimed that Fr Hannon was “sticking his finger into me”.
36	Fr Hannon gave evidence that he had not stuck his finger into Mr Phillips as alleged, but that he would have been pointing to the area he wanted the dogs to be taken to.
37	In cross-examination, Mr Phillips agreed that Fr Hannon had asked him to remove his dogs from the dining area where the reunion was being held to an area adjacent to dining room. He further agreed that Fr Hannon had not asked him to leave the reunion. Mr Phillips said Fr Hannon had said “get the dogs out”.
38	Again, in cross-examination, Mr Phillips refuted as “nonsense” the proposition that his dogs had been declared to be menacing dogs, were required to be muzzled, and had been found by Judge Woodward not to be “assistance dogs” within the meaning of the EO Act.
39	Two witnesses called by the respondent and who were both attendees at the reunion dinner, gave evidence that Fr Hannon asked the applicant to remove his dogs to a secure, heated area immediately adjacent to and visible from the dining room where the function was being held. Mr Phillips did not challenge that evidence.
40	Counsel for the respondent summarised her client’s position as follows:
a	the respondent, the Catholic Archdiocese of Melbourne, was not providing a good or service to the applicant;
b		the applicant had produced no evidence to say that in organising the reunion, Fr Hannon was acting in his professional capacity such that the respondent might be said to be responsible for his action; 
c		Fr Hannon and two witnesses gave evidence that Fr Hannon was acting in a private capacity in organising the reunion dinner;
d		even if VCAT was satisfied that a service was being provided, Mr Phillips had not established that there was any unfavourable treatment – either direct or indirect; and
e		the applicant had not produced any evidence to establish that the conduct alleged was because of any attribute.
Conclusion
41	While the respondent had not contested the applicant’s submission that he has a protected attribute, he had not produced any evidence for me to make a finding about that matter. 
42	I was not satisfied that Mr Phillips’ dogs, Rishi and Goethe, were at the relevant time “assistance dogs” within the meaning of the EO Act.
43	I was not satisfied that the respondent in relation to either of the two events, was providing a service to the applicant.
44	I was not satisfied that the respondent treated Mr Phillips unfavourably because of his attribute.
45	I find that Mr Phillips did not prove on the balance of probabilities that the respondent contravened Part 4, 6 or 7 of the EO Act
46	For these reasons, under section 125 of the EO Act, I have dismissed the application.

B. Hoysted
Senior Member