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[2006] VCAT 740
General information, not legal advice.
Victorian Civil and Administrative Tribunal
2006-05-04
Stuart Morris J
Original judgment source is linked above.
The applicant is to pay the respondent's costs of the hearing on 15 June 2005, in a sum assessed by the Principal Registrar.
1 On 11 January 2005 the applicant lodged a complaint with the Equal Opportunity Commission alleging that he had been discriminated against in the provision of goods and services, and that he had been subjected to religious vilification.
2 The context for these allegations was as follows: the applicant describes himself as belonging to the 'Wiccan' religion. The applicant was a participant in the 'Alpha' program in a Victorian prison. This programme, delivered by the Salvation Army, contained an introduction to Christianity. During the course, various Biblical texts were referred to, including a passage in Deuteronomy[1] which describes those persons who perform certain pagan religious practises as 'an abomination unto the Lord'.
3 The appellant claims that reference to this text amounted to vilification as it incited hatred against, or serious contempt for, those people who practise the Wiccan religion, and was therefore in breach of s. 8 of the Racial and Religious Tolerance Act .
4 The Equal Opportunity Commission declined to entertain the applicant's complaint on the grounds it was frivolous, vexatious, misconceived or lacking in substance.[2]
5 On 18 February the applicant exercised his right to refer the matter to this tribunal for determination.[3]
6 On 21 April 2005 the respondents filed an application for an order to summarily dismiss the complaint under s 75 of the VCAT Act.
7 Written submissions from both parties were received, and the matter was heard by me on 15 June 2005. As part of that hearing the respondent sought costs if the matter was summarily dismissed.
8 On 1 August orders were made to summarily dismiss the complaint. Detailed reasons were given for that order.
9 There was an oversight and the costs application was not dealt with at the time. The matter was revived by the respondent in April 2006. As a result a submission was sought from the applicant before the making of any order.
10 The respondent submitted that an award for costs should be made in its favour because the application was frivolous, vexatious, misconceived, lacking in substance or otherwise an abuse of process.[4]
11 The applicant submits that an award of costs would be inappropriate as he acted in good faith at all times and attempted to reach a negotiated solution. He also submits that any costs award would be meaningless given his lack of income or assets.
12 In my reasons for decision, I observed that the questions raised by the appellant were at best pertinent to an arid and irrelevant theological debate, and bore no relationship to the kinds of conduct the legislation was designed to address. The applicant's claim was at all times quite hopeless.
13 The respondents have been put to cost as the result of the applicant's persistence in his misconceived complaint. As a matter of principle it is fair that this cost be met by the applicant.
14 There is also a public interest in discouraging misconceived claims. A costs order may advance this interest.
15 The likelihood that the applicant may not be able to comply with a costs order is not a reason to decline to make such an order. The making of an order sends a message, even if it cannot be complied with; and this message is relevant to future claims, whether or not by the same applicant. Further, the financial circumstances of the applicant may change in the future.
Fletcher
The Salvation Army