Knight v State of Victoria & Wise [2003] VSC 459

1 The applicant is a prisoner serving a life sentence with a non-parole period of 27 years at Barwon Prison. He seeks an extension of time to seek leave to appeal an order of the Victorian Civil and Administrative Tribunal.

2 On 2 May 2001 the staff at the prison searched the cell of the applicant and various items were seized, including some printed material described by the applicant as being of a "political nature". As appears from the decision of the Victorian Civil and Administrative Tribunal ("VCAT"),[1] from which the applicant now seeks leave to appeal, the printed material in question consisted of articles associated with the Ku Klux Klan, the Nazi party, White Power and the Racist Party. The material in question was confiscated that day by the prison authorities.

3 On 21 October 2001 the applicant made complaint to the Equal Opportunity Commission that the act of seizure of the documents was an act of direct discrimination due to his "lawful political beliefs and activities". The Equal Opportunity Commission declined the complaint under s.108(1)(a) of the Equal Opportunity Act 1995 which provides that the Commission may decline to entertain a complaint if the Commission considers it frivolous, vexatious, misconceived or lacking in substance.

4 The applicant then sought that the complaint be referred to VCAT pursuant to s.108(2) of the Equal Opportunity Act.

5 Following directions by the Tribunal, particulars of complaint were filed with the Tribunal by the applicant. The particulars filed by the applicant contended that the confiscated material was used by him in promoting the aims, objectives and policies of the organisations concerned and to attract members or adherents to those groups from amongst other prisoners. He contended that the second named respondent, the general manager of the prison, who authorised the search and seizure of the material was aware of the applicant's right wing political beliefs and that the seizure of the material was thus direct discrimination on the grounds of political activity. Particulars of defence were filed and served by the respondents. In addition, the respondent made application pursuant to s.109 of the Equal Opportunity Act and pursuant to s.75 of the VCAT Act to have the complaint struck out or dismissed on the grounds that it was frivolous, vexatious, misconceived, lacking in substance and was otherwise an abuse of process.

6 The matter was heard by a Deputy President of the Tribunal on 4 July 2002. The applicant made submissions to the Tribunal by conference telephone on that date and the respondents were represented by counsel before the Deputy President. Several days later on 12 July 2002 the decision dismissing the application was handed down. It is apparent from the material before me that the order was handed down in public, but that for reasons which are not clear the applicant was not present either in person or by video/telephone conference, and indeed did not know that the Tribunal would be making its order and publishing its reasons that day. It is clear from the reasons for decision of the subsequent cost orders made by the Deputy President that the respondents foreshadowed an application to be made by them for an order for costs. Apart from that, there is no suggestion that any such actual application was made by them in the absence of the applicant.

7 By letter dated 3 February 2003, the respondents' solicitor wrote to the Tribunal and made application for an order for costs. The solicitor forwarded a copy of that letter to the applicant. Subsequently, on 4 February 2003, the Deputy President of the Tribunal made directions in chambers, in relation to the application for costs, a copy of which was provided to the applicant. Pursuant to those directions and on 10 March 2003 the applicant filed and served submissions in response to the application for costs made by the respondents. Those submissions were detailed, being 18 paragraphs in length.

8 On 26 March 2003, the respondents filed and served a reply to the submission on costs served and filed by the applicant, and on 20 June 2003 the Tribunal made an order that the applicant pay the respondents' costs of the hearing of 4 July 2002 fixed in the sum of $1,000. The order was accompanied by published reasons of the same date, a copy of which was received by the applicant on 25 June 2003.

9 On 15 July 2003, the applicant made application to waive payment of the filing fee upon an originating motion and summons which application was granted by a deputy prothonotary on 20 August 2003. That day an originating motion and summons was issued by the applicant, seeking an order to extend the time to commence an application seeking leave to appeal pursuant to s.148(5) of the VCAT Act, and stating the proposed grounds of appeal.

10 The matter came on before me in the Practice Court on 10 September 2003 and the applicant made submissions before me. I considered it expedient to hear both the application for extension of time and the application for leave to appeal at the same time. The matter was adjourned part heard to 11 November 2003 when the respondent made submissions and the applicant replied. On this occasion the applicant appeared via video conference.

11 The application for an extension of time to make application for leave to appeal the order of the Tribunal is supported by an affidavit of the applicant dated 28 August 2003, whereby he sets out his circumstances of custody, and the difficulty that he has by reason thereof in complying with time limits for the filing of relevant documents.

12 It is apparent that for leave to appeal to be granted, the applicant must identify a question of law[2] which arises from the order of the Tribunal under challenge. In this case the order under challenge is not the order made by the Tribunal to dismiss the application made by the applicant that the respondent discriminated against him on political grounds, but the order made by the Deputy President in the exercise of her discretion that the respondent pay the sum of $1,000 in costs.

13 In the case before me it is apparent that the Tribunal has a wide discretion to award costs under s.75(2) of the VCAT Act. Section 75 of the VCAT Act provides as follows:

"Summary dismissal of unjustified proceedings

1. 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

2. If the Tribunal makes an order under sub-section 1, it may order the applicant to pay any other party an amount to compensate that party for any costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding."

14 As submitted by Ms Tran who appears for the respondents in the application before me, a clear error of law must be identified in the exercise by the Tribunal of its statutory discretion to make a costs order, for such order to be set aside on appeal. Indeed, even had I come to the conclusion that I would have made a different decision and order than did the Tribunal, that would be insufficient to set the orders for costs aside on appeal. As Ormiston JA said in Transport Accident Commission v O'Reilly; Transport Accident Commission v Cavanagh; Transport Accident Commission v Moore; Transport Accident Commission v Davey[3]:

" ... It has been accepted for many years that it is extraordinarily difficult to show that a court of first instance or a tribunal with wide discretionary powers has erred in the exercise of its powers toward costs, if there be some basis for making an order other than the conventional order in favour of the successful party. On the present occasion that is why I agree that none of these appeals should succeed, although for myself I cannot accept that on the facts the order made in the cases relating to Moore and Davey were appropriate exercises of the tribunal's jurisdiction as to costs."

15 Accordingly, the burden of establishing that there was legal error on the part of the Tribunal in relation to the order for costs made by it, is a heavy one.

16 I turn to the grounds of appeal on which the applicant seeks to rely.

"That the tribunal erred in law when she did not arrange for the attendance of the applicant in person, or by way of video link or by way of telephone, when the tribunal made the original order in this proceeding and published its reasons on 12 July 2002, or notify the applicant in advance of 12 July 2002 that the tribunal would make its order and publish its reasons on that date".

17 There is strong authority that in the absence of statutory authority the judgment of a court should be handed down in open court.[4] Whether or not this is, however, applicable to VCAT is in my view highly debatable, taking into account the nature of its jurisdiction, the fact that it is not bound by the practice and procedure of courts of record, by reason of its power under its Act to conduct hearings on the papers, together with the requirement under s.116 of its Act that orders be in writing and, furthermore, the fact that the Tribunal is empowered to direct a party to give a copy of an order to other parties. However, leaving aside the issue of whether or not the Tribunal is bound to hand down its decisions in open hearing, the fact is that the decision in this case was on the material before me, handed down by the Deputy President in an open hearing at the Tribunal on 12 July 2002. Furthermore, the order which was made by the Deputy President on 12 July 2002 is not the order which the applicant seeks to appeal. The order he seeks to appeal is the costs order made by the Deputy President on 20 June 2003. This ground raises no question of law.

"That the tribunal erred in law in not notifying the applicant that the respondents had foreshadowed an application for costs on the day the tribunal published its reasons, or directing the respondents to notify the applicant of their intention to seek costs, or making directions for the filing and service of submissions in relation to that application."

18 The reasons for decision of the Deputy President in relation to the costs order dated 20 June 2003 contain the following statement:

"On 12 July 2002, I made an order dismissing Mr Knight's complaint and published my reasons. On the day I published my reasons, the respondents foreshadowed an application for costs. As Mr Knight was not present when I published my reasons he would not have been aware of that. Seven months after I gave my decision and reasons, the respondents applied for their costs of the application to dismiss the matter, relying on s.75(2) of the VCAT Act. Directions were made for written submissions and for determination of the costs application `on the papers'."

19 The proposed ground demonstrates no question of law. It was not an error of law for the Tribunal to fail to notify the plaintiff that an application for costs had been foreshadowed. It is quite apparent that the applicant was given an opportunity to be heard as to why costs should not be ordered after the application was made by the respondent and he availed himself of that opportunity. Having received and considered his submissions, the Deputy President decided in the exercise of her discretion to award costs. Clearly it was open for her to do so and the issue of the application for costs by the respondent being foreshadowed on 12 July 2002 is entirely irrelevant to the order under challenge.

"That the tribunal erred in law in allowing the respondents to apply for their costs of their application seven months after the tribunal made its order and published its reasons, and to allow them to do so without requiring them to submit reasons for the delay in making their application for costs."

20 This ground does not raise a question of law. Indeed, on one view it is an attempt to re-argue matters of fact which were decided by the Tribunal in making the order for costs. There is no formal limit on the period in which an application for costs may be made. The Tribunal had a discretion to make an award of costs. The Tribunal was not satisfied, as a question of fact, that the applicant had suffered any prejudice as a result of the delay by the respondent in making application for costs and it exercised its discretion in awarding costs. No question of law arises under this ground.

"That the tribunal erred in law in not requiring the respondents to provide evidence of their submission that they were put to considerable expense in relation to the hearing on 4 July 2002."

21 This ground raises no question of law. The Deputy President had heard the submissions, she had heard the evidence, she had read the written submissions, counsel had appeared before her and she was entitled to make the order for costs on that basis. It was not necessary for evidence to be placed before her, prior to her making what, on any view, appears to be a moderate order as to costs.

"That the tribunal erred in law in not giving sufficient weight to the extent of the disparity in representation between the parties, including the fact that the applicant was unrepresented and that the applicant had to appear by telephone at the hearing on 4 July 2002."

22 This ground raises no question of law. The issue raised is a question of fact, weight and relevance, each of which was clearly within the Tribunal's jurisdiction and discretion to determine and consider.

"That the tribunal erred in law in finding that the applicant's original complaint about the reasonableness of the decision in question was a factor in deciding to award costs, when the applicant alleged that the decision was unreasonable due to political discrimination."

24 Clearly, the Tribunal having summarily dismissed proceedings which it considered to be unjustified was entitled to take the nature of the applicant's application into account in deciding whether it should make an order for costs under s.75(2) of the VCAT Act. Indeed, in my view it was obliged to do so.

"That the tribunal erred in law and in fact in finding that the more probable explanation given by the respondents for the alleged discriminatory conduct was received by the applicant well before the hearing on 4 July 2002 was a relevant factor in deciding to award costs, when the applicant disputed the explanation in question."

25 It is apparent that this ground raises no question of law. It raises an issue relating to a question of fact, weight and relevance which on any view the Tribunal was entitled to take into account in consideration of the exercise of its discretion as to costs. The Tribunal was entitled to take into account the fact that the respondent's case was that the confiscation of the material was related to its obligation to maintain good order in the prison, in considering, in the balance, the degree of frivolousness or vexatiousness or lack of substance of the complaint made by the applicant.

"That the tribunal erred in law in finding that the earlier decision of the Equal Opportunity Commission was relevant when the applicant had referred that decision to the tribunal."

26 Likewise, as with grounds 5, 6 and 7, this ground raises no question of law but rather raises a question of fact, weight and relevance of a matter which the Tribunal was, in my view, clearly entitled to take into account in relation to the proper exercise of its discretion as to costs.

"That the tribunal erred in law in not accepting that an award of costs would hinder other or future proceedings, when it is known that the applicant is in custody and is impecunious, and that an unpaid debt to the State of Victoria can act as an economic barrier to the initiation of further proceedings."

27 The applicant spent a considerable period of time in making his oral submission before me in relation to this ground. This ground raises no question of law but rather a question of fact, weight and relevance which was within the Tribunal's discretion to determine.

28 In circumstances where the Tribunal had formed the opinion that the complaint made by the applicant was misconceived, lacking in substance and had no prospect of success, the respondent had an entitlement under s.75(2) of the VCAT Act to seek an order for costs. There is no evidence before me of any "improper purpose" as suggested by the applicant.

29 However, as I understand the applicant's arguments, he submits that an inference can be drawn that there is such an improper purpose in the respondent's seeking of a costs order against him. He submits that in circumstances where he earns $35 per week in prison and where the immediate prospect of recovery of costs is remote, the only inference to be drawn is that the purpose of seeking cost orders against him is improper. However, the respondents are entitled to the benefit of a costs order, particularly in circumstances whereby frivolous and unsustainable proceedings are brought against them. It may be, as submitted by Ms Tran, for example, that the applicant, may be the beneficiary of an inheritance or that a garnishee order may be made in the future. Indeed the applicant has made no secret of his desire to seek payment for media interviews in the future. It is, as she submits, speculative to say that the costs order may not be capable of being enforced in the future. The fact that enforcement may be difficult at present, does not mean that it must be inferred that the respondent has an improper purpose in seeking a costs order.

30 However, the applicant further submits that the respondents seek an order for costs in order to support an application for security for the costs in any future proceedings commenced by the applicant. This is a complete misconception. Any application for security for costs in the future would depend upon all the circumstances of that future case. It is apparent that impecuniosity of a plaintiff, or an applicant, is not a sufficient ground alone, for requiring a plaintiff, or an applicant, who is a natural person, to give security for costs. The court will not make an order for security for costs under r.62 of the Supreme Court Rules or in the exercise of its inherent jurisdiction on the ground only of the poverty of a plaintiff or an applicant. This court would never, in a proper case, deny access to the court on this basis alone.[5]

31 For the above reasons it is apparent in my view that the proposed appeal of the applicant is futile and bound to fail. Certainly, on any view, it is not attended by sufficient doubt as to justify the grant of leave.

32 The power to extend time pursuant to s.148(5) of the VCAT Act is discretionary. Clearly, the purpose of the discretion is to do justice between the parties.[6] It is apparent that each case depends upon its own facts and there are a variety of factors which may influence the exercise of the discretion. Amongst other factors, are the length of the delay, the reasons for the delay, whether there is an arguable case and the extent of any prejudice to the respondent.[7] In the circumstances of the case before me I accept that the applicant has given an adequate explanation for the delay and the reasons for the delay in making his application. However, it is apparent that the applicant bears the onus of proving that an extension of time should be granted, and in circumstances where in my opinion any appeal brought to this court would be bound to fail, it appears that no good purpose is to be served by acceding to his application to extend the time limit. Accordingly, the application is dismissed.

33 It should be noted that the matter which has involved the Supreme Court in this application is an application which has used up more than half a day of the court's sitting time and of course extra time in consideration of the submissions. The respondent has been required to retain counsel and counsel has prepared written submissions. The proposed appeal to this court was in relation to an order for $1,000 costs ordered by the Tribunal to be paid by the applicant to the respondent. Much more than this has been consumed by the costs of this application for leave to appeal. The application involved no issue of principle or matter of great significance. The application is an attempt to appeal the proper exercise of a discretion by a Deputy President of the Tribunal. The application on any view is futile and hopeless. As I said in the case of Knight v Secretary to the Department of Justice[8]:

"It must be remembered that substantial community resources are involved in the conduct of proceedings before courts and tribunals in this State. Some litigants, such as the applicant in this proceeding, are not deterred by the risk of cost orders being made against them. Scarce resources of the community which are invested in courts should not be allowed to be squandered by applicants bringing futile applications before courts and tribunals."

34 In the circumstances of the case before me it is apparent that an order should be made that the applicant pay the respondents' costs of this application.

[1] Knight v CORE [2002] VCAT 731

[2] Secretary to Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 and Chapter II Supreme Court Rules, r.4.11(1)(b)(iv).

[3] [1998] VSCA 106; [1999] 2 VR 436 at 457.

[4] See Wandin Springs v Wagner and Anor [1991] VicRp 85; [1991] 2 VR 496 at 498-499.

[5] As Kaye J said in Co-Operative Farmers and Graziers Direct Meat Supply Ltd v Smart 386 at 387; "From time immemorial, the rule both at common law as well in equity has been that poverty of a litigant is not a ground for ordering him to provide security for..costs.."

[6] Carlos Constructions Pty Ltd v Housing Guarantee Fund Limited [2002] VSC 444.

[7] Jackamarra v Krakouer [1998] CLR 516.

[8] 2003 VSC 341.