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Australia: Statutory Limit does not apply to Human Rights Claims in the Victorian Civil and Administrative Tribunal

Authors: Jenny Inness and Justin Pen

The Victorian Supreme Court has held that time limits under the Limitation of Actions Act 1958 (Vic) (“LOA Act”) do not apply to claims based on breaches of the Equal Opportunity Act 2010 (Vic) (“EEO Act”) (the state of Victoria’s chief anti-discrimination legislation), such that there is no strict limitation period in which an applicant must bring their claim.

This decision clarifies the law for applicants who pursue such claims in the Victorian Civil and Administrative Tribunal (“VCAT”) (the principal forum that hears and determines anti-discrimination claims under EEO Act), though it should be noted that the EEO Act retains its own regime to deal with complaints that allege unlawful discrimination more than 12 months prior to the lodgement of the complaint.

In Lanigan v Circus Oz & Ors [2022] VSC 35 (McDonald J), the Supreme Court of Victoria was tasked with determining, among other things, an appeal from the VCAT that concerned whether or not the VCAT was right to strike out claims brought by Ms Judith Lanigan that she had been sexually harassed and victimised in contravention of the EEO Act.

Such acts were alleged to have occurred more than six years prior to the lodgement of Ms Lanigan’s complaint with the Tribunal.

At first instance, the VCAT considered that the LOA Act applied to Ms Lanigan’s claim within the Tribunal and found that such claims were statute barred and, as such, must be struck out.

The Supreme Court of Victoria upheld Ms Lanigan’s appeal, finding that the LOA Act was not enlivened on the basis that the LOA Act referred to “actions founded on tort” (and that an “action” was so defined as “a proceeding in a court of law”).

As a starting point, the Court observed that “It is common ground in the present proceeding that no Victorian court has previously considered the question of whether the Tribunal is a court of law for the purposes of … the [LOA Act]”.

Following a close review of the relevant authorities, and examining the provisions of the LOA Act itself, the Court relevantly found that contraventions of the EEO Act did not constitute “actions founded on tort” and, in any event, the VCAT was not a “court of law”. Accordingly, the Court held that the LOA Act had no application to Ms Lanigan’s proceedings before the Tribunal.

Further, the Court also found, in relation to an unsuccessful cross-appeal, that a person could be sexually harassed within the meaning of the EEO Act if, at the time the sexual harassment occurred, such conduct was not ‘unwelcome’; in so doing, the Court accepted that if later events painted the conduct in a different light, such conduct could be found to be ‘unwelcome’.

Relevantly, the Court observed that the EEO Act relevantly defined sexual harassment as occurring when: “a person … engages in any other unwelcome conduct of a sexual nature in relation to the other person … in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated” (emphasis added).

Seizing on the statutory words, “having regard to all the circumstances”, the Court found that “it is arguable that by reason of subsequent events an individual who welcomed conduct of a sexual nature at one point in time may subsequently regard the conduct as unwelcome”.

For example,” the Court continued, “an individual might willingly engage in sexual activity with another person in the belief that the person is single and interested in a long-term relationship. Subsequently, the individual might discover that the other person is married with children. It is arguable that conduct of a sexual nature which was welcomed when it initially occurred would be considered unwelcome once the individual becomes aware of having been deceived.

Though it did not decide this latter issue on a final basis, the Court’s decision demonstrates the broad and dynamic scope of the statutory definition of “sexual harassment” as it appears in the EEO Act.

Relevantly, it is worth noting that the definition given to “sexual harassment” in federal anti-discrimination legislation is worded in substantially similar terms. It would likely follow that a finding by the Supreme Court of Victoria could be picked up by federal courts dealing with claims under the Sex Discrimination Act 1984 (Cth).

Harmers Workplace Lawyers represented Ms Lanigan in the Victorian Supreme Court proceedings and continues to act for her in proceedings still before the VCAT.

Key Action Points for Human Resources and In-house Counsel

In light of this decision, employers should be advised that:

  • This decision is important authority for the proposition that statutory time limitations will not apply to human rights claims brought in the Victorian Civil and Administrative Tribunal.
  • The prohibition against sexual harassment is capable of being enlivened in relation to conduct of a sexual nature that, although not unwelcome at the time it occurs, becomes unwelcome as a result of subsequent events not known at the time the conduct is engaged in.