as a result of this discriminatory comment, (the employee) rescinded my employment opportunity with the Victorian Aboriginal Health Service. Her actions appear to be motivated by racial bias as evidenced by her statements and subsequent decision to withdraw the job offer based solely on assumptions about my race and alleged behaviour.

1. The respondent has applied for summary dismissal of the application pursuant to section 75 of the VCAT Act.
2. VCAT gave directions on 4 March 2025 including that VCAT proposed to determine the respondent's application for summary dismissal entirely on the basis of the documents before the Tribunal, unless a party objected to this manner of proceeding. VCAT further directed that, if a party objected to the Tribunal deciding the summary dismissal application entirely on the basis of documents and VCAT is satisfied the objection is not reasonable, VCAT will still decide the summary dismissal application on the basis of documents alone.

1. The EO Act prohibits discrimination in a range of areas of public life, including employment on the basis of protected attributes, including race.
2. The RRT Act prohibits vilification of another person or group of people because of their race and/or religion.

1. Section 75(1) of the VCAT Act states 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

(b) Is otherwise an abuse of process.

1. The principles that guide the Tribunal when considering an application for summary dismissal are well established. The Tribunal should exercise caution before summarily dismissing a proceeding because such action will have the effect of depriving a litigant of the opportunity to have his or her case decided in the ordinary course. This is of particular importance where the applicant is self-represented.
2. The Tribunal should only summarily dismiss a proceeding when satisfied that, because of one of the grounds in s 75, the case is obviously hopeless, unsustainable in fact or in law, or on no reasonable view can justify relief, or is bound to fail. This includes, but is not limited to, a case where an applicant can be said to disclose no reasonable cause of action, or where a respondent can show a good defence sufficient to warrant the summary termination of the proceeding.[1]
3. It is also established that VCAT should not order summary dismissal in circumstances where the outcome of the case might depend on findings of fact based on contested evidence.[2]
4. The Tribunal is always obliged to ensure that self-represented parties have a genuine opportunity to articulate their case. In considering the respondent's application, the applicant's case should be taken at its highest.
5. An application is 'misconceived' under section 75(1)(a) if it falls outside the tribunal's jurisdiction, it is statute barred, or it concerns matters that the applicant is estopped from raising.[3] Estoppel applies to a range of circumstances including where a factual or legal issue in the application has already been heard and determined (issue estoppel).
6. An application is _'_lacking in substance' if, after the applicant has produced all of his or her evidence, there is nothing of any substance for the respondent to answer.[4]
7. The term 'abuse of process' contained in section 75(1)(b) is not defined in the VCAT Act. It is understood to be a flexible concept designed to ensure that processes of the Tribunal are used in good faith. It can include any process used in a way that is manifestly unjust, oppressive or unfair to a party or would otherwise bring the administration of justice into disrepute among right-thinking people.[5] The categories of abuse of process are not closed, but include proceedings which are manifestly groundless, without foundation or which serve no useful purpose. An abuse of process may arise where, despite the fact that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate again a case which has already been disposed of by earlier proceedings.[6]

1. According to the applicant's application form, he believes he was discriminated against by the respondent on the grounds of his race in an employment related area and was victimised. In his summary of the incident of discrimination, he says that he wishes to complain of racial vilification he experienced by an employee of the respondent regarding an incident that occurred on 17 November 2023. He says that the incident involved inappropriate and racially discriminatory behaviour towards him in relation to his 'police check'. He records that the reasons for making the application are that, on 17 November 2023, in reference to his 'police record', the employee of the respondent commented that 'people of [the applicant's] race are always getting into trouble with the law'. He says that as a result of this discriminatory conduct, his employment opportunity with the respondent was rescinded. He suggests that the respondent's actions appear to be motivated by racial bias, 'as evidenced by her statements and subsequent decision to withdraw the job offer based solely on assumptions about my race and alleged behaviour'.
2. The applicant also indicates that he believes the comment made to him amounts to racial vilification.
3. According to his application form, the applicant seeks financial compensation, an investigation and an apology from the respondent.
4. The applicant wrote to VCAT (the correspondence is undated) requesting that the matter proceed to a hearing rather than being determined on the documents alone. He suggests that he must be afforded an 'open hearing' in order for his allegations of racial discrimination and vilification to be properly adjudicated.[7] However, his correspondence does not address the question of whether the summarily dismissal application made by the respondent might be determined on the basis of the documents alone. In these circumstances I do not consider that any reasonable objection has been made to the determination of the respondent's application for summary dismissal of the applicant's claims ('the section 75 application') being determined on the basis of the documents alone, and I have proceeded to do so.

1. The respondent has submitted that the present application by the applicant should be summarily dismissed pursuant to section 75 of the VCAT Act because it is an abuse of process.
2. As background, the respondent records that in the previous proceeding H468/2023, the applicant claimed that the respondent VAHS had discriminated against him in the area of employment because it revoked an offer of employment on the basis of his attribute of a spent conviction. The respondent records that, in the applicant's particulars of claim in H468/2023 he repeatedly states that the respondent discriminated against him by revoking the offer of employment 'based solely on spent convictions'. His materials submitted in that proceeding do not raise any claim or issue of discrimination on the basis of race nor do they assert that any comment was allegedly made about his race.
3. In the previous proceeding it was uncontested that, in or about November 2023, the applicant had applied for a position as a therapeutic counsellor with the respondent, and an offer of employment was made, though the respondent's position was that the offer was conditional on completion of the usual employment checks including a criminal history check. It was further uncontested that the respondent withdrew the offer of employment on receipt of the results of a Nationally Co-ordinated Criminal History Check conducted on 15 November 2023.[8]
4. In the course of the previous proceeding the respondent applied for summary dismissal of the application, and I heard and determined that matter, with final orders issued on 31 December 2024. I found that the proceeding was misconceived, had no reasonable prospect of success, and was lacking in substance. I ordered that the applicant's claims in that proceeding be dismissed pursuant to s 75 of the VCAT Act.
5. Prior to my decision in the matter H468/2023, the applicant had lodged his application in the present proceeding.

1. In the present proceeding the applicant has ticked boxes on the application form relating to victimisation and racial vilification, but he does not state any matters suggestive of any victimisation within the meaning of s.104 of the EO Act or s.14 of the RRT Act, or that racial vilification has occurred within the meaning of the RRT Act.
2. Victimisation under either the EO or RRT Act requires a threat of detriment, or the subjecting of a person to detriment because a person has done certain things, such as bringing a dispute for resolution. The applicant has not claimed that he did any such specified things. He does not make any statement about victimisation at all.
3. In regard to the applicant's claim of racial vilification, existing law establishes that the threshold for contravening the RRT Act is high.[9] The alleged conduct must be such as to incite 'extreme responses' in an audience. Conduct which is merely critical or offensive or insulting will not suffice. The Victorian Court of Appeal has found that the word 'incites' should be interpreted in accordance with its plain and ordinary meaning: to urge, spur on, stir up, animate or stimulate.[10]
4. There can be no racial vilification in the absence of an audience. The respondent has submitted that the comment allegedly made to the applicant by an employee of the respondent to the effect that people of his race 'are always getting into trouble with the law' could not, even if it was made (which is denied), satisfy the definition of vilification under the RRT Act. As with his claim of victimisation, the applicant has made no statement as to how the alleged comment could amount to vilification.

1. It has been recognised that the making of a claim or re-litigating an issue which has been raised and determined in an earlier proceeding can constitute an abuse of process.[11] The respondent says that this is what the applicant has done in the present case. The respondent says that it is oppressive and unfair for the respondent to be obliged to defend a second proceeding relating to the same factual circumstances as the previous proceeding in H468/2023. The respondent says it incurred costs in having the earlier proceeding summarily dismissed and it should not be obliged to incur further costs in defending another discrimination claim by the same applicant relating to the same facts.
2. I accept the respondent's submission about this. I consider that the applicant had ample opportunity to identify every facet of his discrimination claim against the respondent in the previous proceeding. He did not however make any mention of racial discrimination at any stage of that proceeding, which was finally disposed of by my summary dismissal orders. The applicant has not provided a reason why he did not include an allegation of racial discrimination in the earlier proceeding, or indeed why he stated in that proceeding that he was discriminated against 'solely' on the basis of a spent conviction, and then in the present proceeding say that he was discriminated against 'solely' on the basis of his race.
3. In the present proceeding the applicant has alleged an identical cause of action as in the previous proceeding, being his claim that the respondent engaged in unlawful discrimination against him in the context of his employment application made in November 2023. While the present application frames the discrimination as having been based on the protected attribute of race, and the previous proceeding framed the discrimination as having been based on a spent conviction, this does not displace the identical nature of the underlying cause of action. The parties in the present proceeding are identical to those in the earlier proceeding.
4. The proceeding in H468/2023 regarding the applicant's claim of alleged discrimination by the respondent was finalised by my determination to summarily dismiss that proceeding. By having that proceeding dismissed, with no appeal, the respondent should be entitled to consider the matter finalised.

1. Having considered the applicant's and the respondent's submissions, I am of the view that it would be oppressive and unfair to the respondent to be obliged to defend another discrimination claim by the same applicant relating to the same factual circumstances.
2. In forming that view, I have taken into account the considerations relevant to whether raising the same issue in successive proceedings might give rise to an abuse of process, as set out by McLeish JA Commissioner of State Revenue v Mondous.[11] The guiding considerations are oppression and unfairness to the other party to the litigation, and concern for the integrity of the system of administration of justice. McLeish JA states that regard may be had to the following matters:

(a) the importance of the issue in and to the earlier proceeding, including whether it is an evidentiary or ultimate issue;

(b) the opportunity available and taken to fully litigate the issue;

(c) the terms and finality of the finding as to the issue;

(d) the identity between the relevant issues in the two proceedings

(e) any pleas of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceeding;

(f) the extent of the oppression and unfairness to the other party if the issue was re-litigated and the impact of the re-litigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and

(g) an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.

1. Taking these matters into account, I find that the application, to the extent that it alleges discrimination in an employment related area by the respondent, amounts to an abuse of process and is summarily dismissed.
2. The additional matters identified on the application form to be alleged victimisation and racial vilification are misconceived and lacking in substance and are also summarily dismissed.
3. I am satisfied that the applicant's claims in this proceeding are obviously unsustainable in law and are bound to fail. The application is dismissed pursuant to section 75 of the VCAT Act.

1. The respondent has applied for their costs.
2. While VCAT's jurisdiction to award compensation subsequent to an order having been made pursuant to section 75(1) arises from section 75(2) of the VCAT Act, the approach the Tribunal has taken has been to consider exercising its discretion in accordance with the principles that have been established in relation to the general costs provisions contained in section 109 of the VCAT Act.
3. The intent of the general costs provisions contained in the VCAT Act are that they are designed to promote access to justice generally, and enable ordinary citizens to be free to protect their rights by taking action in VCAT without the fear of punitive costs.[12] This does not mean that parties are free to abuse Tribunal processes or act unreasonably or vexatiously in bringing or maintaining proceedings, in which circumstances where orders for costs can certainly be made.[13]
4. In the present case, although I have determined that the applicant's claims are in part misconceived and lacking in substance, and, to a significant extent an abuse of process, I cannot conclude with satisfaction that the applicant should have known that his application was bound to fail and that it was, without question, unreasonable of him to pursue it.
5. I have also taken into account the principles contained in the VCAT Act regarding access to justice and the non-deterrence to ordinary citizens from pursuing matters about their rights in VCAT.
6. I have concluded that, on balance, no award of costs should be made.

[1] State Electricity Commission of Victoria v Rabel [1998] 1 VR 102.

[2] Campagnolo v Benalla and District Football League Inc [2009] VSC 228 [41].

[3] Ballarto Pastoral Pty Ltd v Department of Primary Industries [2006] VCAT 478.

[4] Assal v Department of Health, Housing and Community Services (1992) EOC 92-409, applied in Liu v University of Melbourne [2002] VCAT 896.

[5] Molyneux v VCAT & Anor [2007] VSC 89 at [53].

[6] Chief Justice French in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 at [333] quoting with approval Walton v Gardiner [1993] HCA 77, per Mason CJ, Deane and Dawson JJ at [23].

[7]. Filed correspondence to VCAT from the applicant (undated).

[8] Shari v Victorian Aboriginal Health Service (Human Rights) [2024] VCAT 1223 at [17].

[9] Catch the Fire Ministries v Islamic Council of Victoria Inc [2006] VSCA 284.

[11] Commissioner of State Revenue v Mondous [2018] VSCA 185; (2018) 55 VR 643, at [111]-[113].

[11] [2018] VSCA 185; (2018) 55 VR 643, at [116].

1. [12] Stonnington CC v Blue Emporium Pty Ltd [2004] VCAT 1441 at [13]; Falconbridge Pty Ltd v Yarra CC [2005] VCAT 2449 at [18].

[13] Country Endeavours Pty Ltd v Casacir Pty Ltd [2013] VSC 22.