1. The Respondent submitted that there was no evidence that Mr Slattery had suffered loss. Mr Slattery gave evidence at the remedies hearing that he had been attending public toilets and the library regardless of the Declaration, and he continued to publish his newspaper. Damages, submitted the Respondent, could only be awarded as compensation for loss. There was no loss of income, and no medical evidence about psychological distress resulting from discrimination. Moreover, submitted the Respondent, Mr Slattery's underlying complaint was not the Declaration itself, but his belief that the Council caused his disabilities by engaging a doctor who provided treatment to him. Nothing that the Council could do would satisfy him. He gave evidence that he felt like a soldier with a battle on his hands, and expressed feelings of hatred for the Council. This, said the Respondent, was the real cause of Mr Slattery's distress, not the Declaration. The Respondent submitted that an award of damages would be unjustifiable.
2. The Commission submitted that the EO Act is beneficial legislation designed to promote equality, eliminate discrimination as far as possible and to provide redress for people who have experienced discrimination. When applying its discretion in s 125, submitted the Commission, the Tribunal should take into account the beneficial and remedial objectives of the Act. The Commission referred me to the view expressed by Dawson and Gaudron JJ in IW v City of Perth (1997)[11] that, for these reasons, the provisions of equal opportunity legislation should be construed as widely as their terms permit.
3. The Commission in its submissions noted that:

The onus is on an applicant to make a claim for applicable remedies and to provide evidence of any loss, damage or injury. Such a claim could be supported by an applicant's own testimony or the testimony of medical providers, or by providing evidence of lost income or employment benefits, travel expenses, medical expenses or copies of relevant medical reports.

1. There was no evidence available from medical providers as to the loss, damage or injury suffered by Mr Slattery as a result of the discriminatory conduct of the Respondent. It would have assisted the Tribunal in the task of seeking to understand the effect of the conduct had such evidence been available. I understand from Mr Slattery's evidence at both hearings, though I am not certain of this, that he does not seek treatment for the conditions that constitute his disabilities - his acquired brain injury, post traumatic stress disorder, bi-polar mood disorder. Likewise, there was no evidence of lost income or employment benefits, travel expenses, medical expenses or copies of relevant medical reports. It remained for me to take into account Mr Slattery's own evidence as to loss, damage or injury.
2. In his summary of evidence, dated 21 July 2014, Mr Slattery said that the Declaration had affected him in the following ways:

It has impaired my ability to raise my concerns about health and safety issues with the Council.

It has impaired my ability to raise concerns about issues which directly impact on me with the Council.

It has impaired my ability to report on issues of concern in my newspaper the Sweeney Flats Post.

It has prevented me from inspecting documents which are available for public inspection at the Council.

It has prevented me from attending public events run by the Council or in Council buildings.

It has caused me anxiety when attending my local Library or RSL lodge in breach of the ban.

It has caused me public embarrassment on multiple occasions.

It has caused me anxiety and distress and negatively impacted on my mental health.

1. In his oral evidence, Mr Slattery reiterated that he found the consequences of the Declaration to be demeaning and embarrassing. He gave evidence about being asked to leave his local library, not, on the available evidence, because he was causing any problem there. He described being treated like a fourth class citizen. He explained that his newspaper was very important to him, and an important outlet, as he found it very difficult to communicate verbally. His inability to spend time at Council looking through documents, as he used to do, was a significant constraint.
2. Mr Slattery, when asked how the Declaration affected him, said that it was very upsetting. He said that it was not normal that he could not use the Council buildings as they were meant to be used. He noted that he was not allowed to use the public toilets or swimming pool, though he said that he had used the toilets. He said that he felt cautious in the library, waiting for someone to see him there. He also said that he had attended the RSL Lodge. He said that he was conscious that the Lodge, and the library, were on land owned by the Council, and that he was 'like a soldier with a battle on my hands.' Mr Slattery said that he wanted to be able to attend the Council building to access documents. He said that his newspaper performed an important role in the community - he said that it was better than The Age or the Leader and that it made him feel good. In the past, he would go to the Council offices for 2 to 3 hours at a time to read material for his newspaper, and that this was important to him.
3. Mr Slattery reiterated his conviction that Council had caused him to have a stroke, and said that he would never forgive them for that. He said that his health was deteriorating; he had diabetes, had trouble with his knees and hips and couldn't walk properly, and sometimes fell over. He said that at sixty seven years of age it was not nice to be treated disrespectfully, whatever you have done.
4. It is not possible to precisely identify, without medical evidence to assist, what was the extent of the loss arising for Mr Slattery as a result of the Declaration, particularly since November 2012, and what arose from his previous experiences and his underlying conditions. Smith J, in State of Victoria v McKenna[12] made the following comments:

My attention was drawn to the fact that I considered that provision in the matter of Box Hill College of Technical and Further Education and Other v Fares (unreported 28 August 1992). In that case it had been argued that the Board had failed to disentangle earlier events and their effect on Fares when assessing her compensation and had in effect applied the "egg shell skull principle" in approaching the case on the basis that the wrongdoer had to take its victim as it found its victim. In my reasons I commented (at 28):

"Whatever may be the rationale of that principle, I am satisfied that it is the correct approach to take to the assessment of damages under s.46(2) (b) of the Act. . . . [Section 46(2)(b)] requires that the loss, damage and injury be a consequence of the act of discrimination. That is satisfied if it can be shown that there is a causal link between the act complained of and the loss, damage or injury suffered. The relevant provisions are dealing with personal matters where the personality of the victim and the victim's previous experiences must inevitably interact with the act of discrimination to produce the result for which compensation is sought. So long as the Board is satisfied that the act of discrimination was a cause of loss, damage and injury, the complainant is entitled to compensation for that loss, damage and injury."

... It is also artificial to require the Tribunal to separate from the compensable causal factors experiences in the private life which intermingle in the causal chain. It is inevitable that that intermingling will occur. The impact of stress at work will flow through to have an impact on the person's private life which in turn will create stresses which will impact upon the person's reaction to the work environment and general health and happiness. The test for the Tribunal ultimately is whether the condition for which compensation is sought is shown to the Tribunal to be "suffered in consequence" of the unlawful conduct. That means that there may be occasions when events in the private life of the complainant may be of such an order that the Tribunal cannot be satisfied that the condition complained of was "suffered in consequence" of the unlawful conduct. It seems to me, however, that that expression provides the test by which to determine the question.[13]

Assuming that to be the correct approach there is nothing to suggest the Tribunal in the present case incorrectly approached the matter. In particular, it was plainly open to the Tribunal to take the view that it was inappropriate to isolate what might be called the private factors from the professional factors because of the profound impact the latter had had upon her condition.[14]

1. Further, in Styles v Murray Meats [15] Deputy President McKenzie stated that:

My findings are these: Ms Styles was sexually abused by her father and beaten by her mother and suffered extensive emotional abuse from both her parents for some seven years in early youth. This has left her with chronic, fluctuating symptomology involving anxiety, depression, chronic pain disorder, panic disorder and significant emotional problems and a predisposition to react strongly in situations of perceived sexual harassment.

I pause here to say that in my view, in cases under the Equal Opportunity Act, one must take the victim as one finds the victim. Loss is still compensable even though the victim may, because of some earlier condition or event, be more than ordinarily sensitive to the particular conduct.

... it is now well established that the question presented by s 82 of the Act is not what was the (sole) cause of the loss or damage which has allegedly been sustained. It is enough to demonstrate that contravention of a relevant provision of the Act was a cause of the loss or damage sustained.

1. Taking into account Mr Slattery's own evidence, given at both hearings, I am satisfied that the contravention of the EO Act, as found, was a cause of the loss or damage sustained by Mr Slattery.
2. It will be clear from the reasons dated 30 October 2013 that I have no jurisdiction with respect to Mr Slattery's personal view as to the Council's historical contribution to his medical conditions. Nor, even if it were relevant to this proceeding, was there any evidentiary basis before me for considering the view that Council caused Mr Slattery's brain injury. I do not take this view into account.
3. Mr Slattery seeks compensation for public humiliation and private hurt in the sum of $100,000. The Applicant, acknowledging that this is a significant claim, referred me to the recent decision of the Federal Court in Richardson v Oracle.[16] In this decision, in which an order for general damages of $18,000 was substituted with an order for general damages of $130,000, Kenny J observed that:

... community standards now accord a higher value to compensation for pain and suffering and loss of enjoyment of life than before.

1. In Tan v Xenos[17] Judge Harbison said that:

In my view, there should not be a perception that awards of damages in this jurisdiction should be set at some lower rate than awards for comparable cases in the Courts. The purpose of the award of damages is to attempt to measure, in monetary terms, the hurt that has been done to the Complainant by the Respondent's act of harassment. My approach should mirror the approach that would be taken if this case were to be heard in a Court, instead of a Tribunal.

1. This case, and others referred to in the Richardson v Oracle decision, were cases about sexual harassment. Kenny J said, however, that the principles as to this change in the community's appreciation of the compensable value of pain and suffering and loss of enjoyment of life had a wider applicability.[18]
2. In making the order as to damages, I take into account the fact that, for reasons set out earlier, the period to which damages apply is from November 2012. I take into account the relevant case law, Mr Slattery's evidence as to the effect of the Declaration on him, the lack of medical or psychological evidence as to the effect of the Declaration, and all the circumstances of this case. It is my view that the appropriate amount of general damages is $14,000.

1. The Applicant submitted that the ordering of an apology in the human rights jurisdiction of the Tribunal is uncontroversial, and referred to several cases in which an apology had been ordered.
2. The Respondent submitted that it was acting in good faith, to deal with a very complicated situation, and had been doing its best taking into account the need to protect its staff and others from Mr Slattery's behaviour. Further, it was not due to any action by the Council that there was public exposure of the circumstances of this case. Mr Slattery himself had issued a press release, and it was he who had broadcast the terms of the Declaration.
3. The Intervener submitted that it was open to the Tribunal to make such an order, as it could constitute an order redressing loss, damage or injury. A public statement could be simply an acknowledgement that the conduct constituted discrimination, without the Respondent needing to say it was sorry.
4. In Tan v Xenos[19] Judge Harbison noted that an apology ordered by her would not be genuinely given, and that the ordering of an apology should only be done in rare circumstances. This view is expressed in many other cases.[20] I accept that there are circumstances where an apology is appropriate,[21] but decline to make such an order in this case. The declaration made as to the Charter stands as a public statement that the maintenance of the Proscribed Prohibited Person Order was unlawful, and a breach of Mr Slattery's rights.

1. I have already found that the maintenance of the Declaration was a breach of the Charter.
2. Paragraphs 149 to 165 set out the basis upon which I made the finding. I do not propose to repeat that reasoning here, save to record that in paragraph 161 of the reasons for decision I identified that the relevant Charter rights Mr Slattery had were as follows:

Every person in Victoria has the right, and is to have the opportunity, without discrimination, to participate in the conduct of public affairs, directly or through freely chosen representatives...

(1) Every person has the right to hold an opinion without interference.

(2) Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Victoria and whether:

1. orally; or
2. in writing; or
3. in print; or
4. by way of art; or
5. in another medium chosen by him, or her.

(3) Special duties and responsibilities are attached to the right of freedom of expression and the right may be subject to lawful restrictions reasonably necessary -

(a) to respect the rights and reputations of others...

(2) Every person has the right to enjoy his or her human rights without discrimination.

1. The Respondent submitted that, while in certain cases the Tribunal has power to make a declaration of breach of the Charter, in these circumstances I should not do so, as a declaration should not be made unless there is some utility in doing so. The reasons why, according to the Respondent, there is no need for a declaration in this case are that there has already been a formal finding of Charter unlawfulness made, a declaration is not the only remedy available, and the Tribunal is not exercising review jurisdiction over a decision of a public authority.
2. I refer to the decision of Bell J in Kracke v Mental Health Review Board 29 VAR 1, in which His Honour noted that:

The tribunal's power to make a declaration is conferred by s 124 of the Victorian Civil and Administrative Tribunal Act ...

...Section 124 (1) confers a general power to make a declaration concerning any matter in a proceeding and instead of or in addition to any order it could make in the proceeding.

Human rights protect interests and values which society in parliament considers to be fundamental, both to the individual and to the maintenance of democratic society based on the rule of law. Where human rights are breached, both the individual and society have a strong interest in the remedy of a declaration, in which inheres their final vindication.[22]

1. I regard the making of a declaration, as set out below and on page 1, to follow from the finding already made in reasons dated 30 October 2013. Mr Slattery had grounds for bringing a claim to the Tribunal, that is, his claim that the Respondent had breached s 44 of the Equal Opportunity Act 2010 which states that a person must not discriminate against another person:

by refusing to provide goods or services to the other person; or

in the terms on which goods and services are provided to the other person; or

by subjecting the other person to any other detriment in connection with the provision of goods or services to him or her.

1. The lawfulness of the conduct of the Council is thus central to the matters which were before the Tribunal in this proceeding. As is stated in Director of Housing v Sudi:[23]

The question whether a public authority has acted unlawfully may be central to the resolution of a dispute where the lawfulness or otherwise of such conduct is an element of the cause of action in the proceeding... In (that) case, the Charter issue arises directly in the course of the proceeding and must be resolved according to law.[24]

1. I did not accept the submission that the Council was, and is, acting in a private capacity in maintaining the Proscribed Prohibited Person Declaration with respect to Mr Slattery. It was and is performing functions and exercising powers given to it under the Local Government Act 1986.
2. The Respondent breached, and at the date of the remedies hearing was continuing to breach, the Applicant's human rights under sections 18, 15 and 8 of the Charter, by maintaining the Proscribed Prohibited Person Declaration that prohibits the Applicant from attending any building that is owned, occupied or managed by the Respondent**.**

1. Section 75 of the VCAT Act provides the following:

(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 subsection (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.

1. An application by a respondent for costs where a proceeding has been dismissed or struck out may be made under s 75(2) or s 109 of the VCAT Act, though such applications are the exception rather than the rule. The considerations to be taken into account under each section are broadly the same.
2. Section 109 of the VCAT Act sets out clearly the starting point with respect to costs in this Tribunal, which is that each party bears their own costs. The reason for this is to ensure that the Tribunal is as accessible as possible, costs to parties are minimised, and parties are not dissuaded from bringing claims or protecting their rights by a risk that costs will be awarded against them if they lose. There are, however, exceptions to this rule, and s 109 sets out the exceptions. The Tribunal may, if it is satisfied that it is fair to do so, order that a party pay all or part of the costs of another party.
3. If the Tribunal is satisfied it is fair to make a costs order, it must have regard to the following considerations, set out in s109(3):

(a) whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding by conduct such as -

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse;

(ii) failing to comply with this Act, the regulations, the rules or an enabling enactment;

(iii) asking for an adjournment as a result of (i) or (ii);

(v) attempting to deceive another party or the Tribunal;

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding;

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law;

(e) any other matter the Tribunal considers relevant.

1. It is the exception, therefore, that orders for costs are made against parties in this Tribunal, and this is particularly so in the Human Rights List. As was stated in Tanglemayer v FAI Workers Compensation (Vic) Pty. Ltd. (Anti-Discrimination List, No. M4 of 1998:

It is inappropriate in relation to the jurisdiction conferred by the Equal Opportunity Act 1995 to observe an automatic rule that costs should follow the event. To do so might detract from the clear conciliation focus of the Act by encouraging parties to proceed to hearing in the hope of being indemnified for their costs, rather than resolving the matter by conciliation. It may also undermine the objective of the Act to provide redress for the victims of sexual harassment or discrimination, by deterring them from accessing the jurisdiction, for fear that, if they lost, costs might be awarded against them.

1. Judge Harbison, in Tan v Xenos [2008] VCAT 1273 discussed the matters to be taken into account in considering a costs application in the Human Rights jurisdiction of the Tribunal. Her Honour noted that:

The basis for the generally cautious approach to awarding costs is to preserve access to the Tribunal for claimants. The Tribunal is also concerned not to discourage litigants from presenting their claims in person, without legal representation. If costs were generally awarded for successful claims, or against unsuccessful claimants, the issue of costs would become a significant barrier to issuing in this forum. In this case, it is the successful claimant who stands to lose if costs are not awarded, but this will not always be the case. If costs orders were made as a matter of course, to "follow the event" as is the case in the Courts, a significant advantage of access to this Tribunal would be neutralised.

1. In Deckert v Victorian Institute of Dryland Agriculture,[25] McKenzie DP said as follows:

In my view, the parties should bear their own costs. The effect of s109 is that, if the Tribunal proposes to depart from the principle that costs lie where they fall, it must do so based on the circumstances of the particular case. Each case will turn on its own facts.

Here, Ms Deckert was only successful in part. I estimate that success, taking into account the various claims and their relative importance, at between thirty five and forty per cent.

The evidence was complex. The claim of indirect discrimination was complex. I am not prepared to say that either party conducted the case unreasonably or unreasonably prolonged it. The fate of all the claims depended very much on how the tribunal viewed the evidence as a whole. I am not prepared to say that any of the claims had no tenable basis on any reasonable view from the outset.

Certainly, some of the amount awarded to Ms Deckert may be used to pay her costs. But, if this were to be the decisive factor, it would be fair to award costs in every case, and the general rule in s109(1) that costs lie where they fall would have little application.

1. It is my view that, in this case, the parties should pay their own costs. I am not satisfied that any of the matters set out in s 109(3) apply. The case was complicated, but not because of any action or inaction on the part of one or other of the parties. Neither party unnecessarily disadvantaged the other. There were no failures to comply with orders of the Tribunal. The claim was proven in part, but not in full. It is appropriate, and consistent with the purpose of s 109 of the VCAT Act, to be cautious in making orders as to costs, and it is my view that such orders are not warranted in this case.
2. Finally, I record that at the conclusion of the hearing the Applicant handed up a sealed envelope, which remains sealed, and which presumably contains an offer of settlement from the Applicant. The Applicant did not wish to have the proceeding re-listed to be heard as to the contents of the envelope but submitted the envelope for my consideration should I be inclined to make an order under s 112 of the VCAT Act, in which case I would have provided an opportunity for written submissions. I have decided otherwise. I do not intend to consider making an order under s 112, and refer to the case of Gray v Victoria[26] in which the Tribunal declined to exercise its discretion to consider a costs order, noting that:

The Tribunal finds that the cases of Calderbank and Cutts v Head are inapplicable in principle in the present case, because they dealt only with monetary issues. In this respect the Tribunal refers to the decision of Khorram v John Willams Aloi Computer Product (Australia) Pty Ltd (unreported No.39 of 1995 VCAT Anti Discrimination List 5 February 1999) where the Respondent applied for costs based on Cutts v Head, but the Tribunal did not award costs...It pointed out that one thing which the Complainant sought in this jurisdiction was a finding of discrimination - that is, public vindication. The Tribunal said 'there are difficulties importing such a practice into this jurisdiction. A remedy sought in a claim alleging unlawful discrimination is not simply money but also vindication, and public recognition that discriminatory conduct has occurred'.

1. From correspondence on the file and from submissions, I understand and appreciate that the best efforts of the parties were put towards seeking resolution as to remedy at the compulsory conference and in confidential negotiations and discussions that followed. Resolution was not achieved, and so it was appropriate and necessary for the matter to come back before the Tribunal and for the Tribunal to make determinations as to remedy, without, in my view, costs consequences for either party. The envelope, still sealed, will therefore be available for collection by the solicitors for the Applicant at the reception counter of the Human Rights Division of the Tribunal.

[1] [2009] VSC 66; (2009) 23 VR 110

[5] [1995] VicRp 52; [1995] 2 VR 242, 266

[11] [1997] HCA 30; 191 CLR 1, 12

[12] [1999] VSC 310 (27 August 1999) at para 258

[16] [2014] FCAFC 82

[17] [2008] VCAT 584 at 556

[20] Jones v Toben [2002] FCA 1150

[21] See, for example Styles v Murray Meats [2005] VCAT 914

[23] [2011] VSCA 266

[25] [2006] VCAT 299

[26] Gray v State of Victoria & Anor [2000] VCAT 1281 (30 June 2000)