VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
human rights DIVISION
HUMan rights LIST	
vcat reference No. H161/2022	
CATCHWORDS	
Application under section 75(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) for summary dismissal of application for an order under the Racial and Religious Tolerance Act 2001 (Vic).	

APPLICANT	Gary Marsom	
RESPONDENT 	The Public Advocate	
WHERE HELD	Melbourne 	
BEFORE	Member C. Thwaites	
HEARING TYPE	Section 75 Summary Dismissal Hearing	
DATE OF HEARING	21 June 2023	
DATE OF ORDER AND WRITTEN REASONS	7 August 2023	
CITATION	Marsom v The Public Advocate (Human Rights) [2023] VCAT 907 	

OrderS

1	The application under section 75(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) for summary dismissal is granted.
2	The application H161/2022 for an order under the Racial and Religious Tolerance Act 201 (Vic) is dismissed.

C. Thwaites
Member			

APPEARANCES:		
For Applicant	In person	
Respondent	A. Baset, OPA Senior Solicitor 	

Reasons
BACKGROUND
1	On 11 June 2022, the applicant lodged an Application for an Order in the Human Rights List form, seeking an order under the Racial and Religious Tolerance Act 2001 (Vic) (‘RRT Act’). 
2	On 4 October 2022, VCAT held a directions hearing and made orders that by 25 October 2022 the applicant was to file with the Tribunal and serve on the respondent a single document setting out in numbered paragraphs the particulars of the claims he was making, why he says any event was a breach of the RRT Act, why he says any event was a breach of the Equal Opportunity Act 2010 (Vic) (‘EO Act’), and what orders he was seeking.
3	VCAT also made orders giving dates for the respondent to file particulars of defence or an application under section 75 or 76 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’).
4	On 15 November 2022, the respondent filed an application for order for summary dismissal under section 75(1) of the VCAT Act and attached written submissions in support. 
5	On 21 June 2023, VCAT held the hearing of the application for summary dismissal under section 75 of the VCAT Act. I was the presiding member. 
6	During the hearing I heard oral submissions from the applicant and the respondent.
7	At the conclusion of the hearing, I closed the hearing and reserved my decision.
APPLICATION FOR AN ORDER UNDER THE RRT ACT
8	In his application form for an order under the RRT Act dated 11 June 2022, the applicant claimed discrimination, failure to make reasonable adjustments for a person with a disability, racial and religious vilification, and victimisation, based on the attributes of age, disability, gender identity, political belief or activity, race, religious belief or activity, and sex, in the provision of goods and services. 
9	In the application form section asking to please specify, the applicant stated reverse racism because he was a ‘white male, Christian, 65 successful male but now disabled’.
10	In the section for more details of the incidents, the applicant stated Antoinette Khalil was a reverse racist and the applicant was subjected to reverse racism and victimisation over a long period of time. The respondent has identified Ms Khalil as a former staff member who had in the past held a delegation as guardian for the applicant’s sister, Ms Julie Marsom.
11	The applicant stated his sister died on 25 March 2021 and he and the Marsom family were not told. The funeral was about 7 April 2021 and he and the Marsom family were not told. He was not told until 19 July 2021. The applicant stated Ms Khalil was a reverse racist. He stated he was seeking compensation in the order of $1M for pain and suffering and costs.
12	In his document titled Points of Claim Exhibit Version 1 received at VCAT on 14 October 2022, the applicant summarised the sequence of events and details around his sister’s death on 25 March 2021. 
The applicant stated:
•	the respondent refused to provide timely and sufficient information and was at times deliberately difficult;
•	the respondent did not notify the Marsom family of Ms Marsom’s death or funeral;
•	the applicant was forced to call up about 50 times to get basic information;
•	Ms Marsom’s original Will was not provided until about 7 September 2021;
•	details of the estate’s investments were not fully disclosed;
•	other information such as tax returns and fees had not been supplied;
•	details of Ms Marsom’s health condition at the time of her death and years proceeding her death were not properly or appropriately disclosed by the State Trustees and the respondent;
•	the respondent was negligent in her role of making decisions concerning Ms Marsom’s survival and treatment;
•	the situation was created by Ms Khalil’s original harassment, abuse, vilification, victimisation and defamation of the applicant which he is in no doubt was because of his religious beliefs and obvious religious background compared to hers;
•	Ms Khalil continued to influence with the harassment, abuse, vilification, victimisation and defamation via other means;
•	Ms Khalil incited others to victimise and vilify the applicant from about 2009;
•	the respondent made false claims to and/or misled the Tribunal in about 2003, resulting in the Tribunal ceasing the appointment of the applicant as Ms Marsom’s administrator.
•	funds were stolen and/or misappropriated from Ms Marsom;
•	that $226,829.06 of which $48,824.64 due to loss of estate was caused by the respondent, $71,826.90 due to fines and penalties due to incompetent management caused by the respondent, the loss of immaculate financial management as his sister’s administrator by the respondent, $106,711.30 disappeared from accounts; 
•	that he reserved his right to produce further evidence as various organisation respond to his requests under the Freedom of Information Act 1982 (Cth) (‘FOI Act’);
•	the respondent had ignored an email from the applicant from 10 August 2022 ‘requesting FOI information’; 
•	he estimates he suffered loss and damage worth $1,000,000 as a result of the alleged conduct;
•	the applicant attached a number of documents as exhibits.

13	The applicant stated he was seeking the following orders:
a)	that the respondent pay the identified losses totalling $226,829.06 immediately;
b)	that further orders be made for further hearings to be undertaken that would allow the losses caused by respondent/State Trustees costs (misappropriation funds) identified in the exhibits conservatively estimated 1 million dollars to be recuperated; 
c)	that the respondent provide sufficient documentation and publications to rectify the clear-cut defamation, harassment, abuse, vilification, victimisation that contributed to the early death of Julie Marson and losses as claimed;
d)	that the respondent agrees this material will be used to continue communications with the State opposition leaders with the express aim of repealing State Trustees legislation and the OPA legislation.
14	In his document titled Response to Point of Defence dated 10 December 2022, filed in response to the application for summary dismissal, the applicant provided similar information in relation to details about his sister’s funeral and background to the current application. 
15	The applicant stated he believed Ms Khalil was the main catalyst for a number of other individuals and organisation to behave in breach of a number of Acts including:
•	The Equal Opportunity Act 2010; 
•	Racial and Religious Victimisation Act;
•	Causes of Losses Act;
•	Australian Consumer Law and Fair Trading Act 2012;
•	FOI Act;
•	Criminal Law Acts;
•	Guardianship and Administration Act 2019;
•	Probation and Supreme Court Act;
16	The applicant stated there was clear discrimination with respect to gender. Ms Khalil was female and clearly displayed behaviour that was against a male brother looking after his sister. The applicant stated many reports pointed out that the applicant was doing an outstanding job as administrator and often guardian.
17	The applicant stated there was discrimination with respect to race. Ms Khalil was not Christian.
18	The applicant stated there was discrimination with respect to religious belief. Ms Khalil was not Christian.
19	The applicant stated he believed there was clear victimisation with respect to reports that were distributed without the knowledge of the applicant that clearly victimised the applicant unnecessarily (defamation).
20	The applicant stated further evidence was currently being collated and the applicant applied for more time to obtain further information.
21	The applicant listed a number of the paragraphs in the Points of Defence document and stated special and exceptional circumstances and referred to a number of sections in the Guardianship and Administration Act 2019.
22	The applicant stated the case must be heard in full and referred to exceptional and special circumstances and criminal law, and compensation.
23	The applicant referred to Coroners Court investigations and stated he was claiming extenuating circumstances and requested his application be given special consideration.
24	The applicant provided an affidavit dated 24 October 2022 providing information about his sister’s death and repeated information previously provided in relation to concerns about the delay informing him and the Marsom family. The applicant referred to Austin Hospital records about his sister’s health and stated she was neglected by the Public Advocate, Philip Marsom, and State Trustees leading to negligent manslaughter.
25	The applicant stated the Coroners Court did not consider all the evidence and various organisation withheld information, and that the Coroners Court should be directed to continue their investigation, and an extension of time be directed to the Supreme Court to allow more evidence to be obtained.
26	The applicant stated he was an unrepresented person, a disability support pensioner, an NDIS approved recipient, semi-retired and suffering from severe health and mobility issues. His health condition have continued to cause serious financial hardship.
27	The applicant stated he was seeking an immediate order to: 
a)	stay the proceeding in the Coroners Court, and that the Coroners Court continue their investigation; 
b)	that the respondent and a number of other organisations and individuals be ordered to provide the requested Freedom of Information to the applicant; and
c)	that a number of subpoenas be provided concerning the circumstances of his sister’s death, and that the police be directed to continue their investigation.
28	The applicant stated he was claiming extenuating circumstances and requested that the application be given appropriate special consideration. The applicant attached a number of documents to his affidavit.
HEARING OF APPLICATION FOR SUMMARY DISMISSAL
29	During the hearing of the application for summary dismissal held on 22 June 2023, I expressed my condolences to the applicant for the loss of his sister and discussed the applicant’s application and the information he had provided.
30	The applicant raised concerns about what happened at the time of his sister’s death and how information was not given to him or his family. The applicant stated the Public Advocate was involved and that there was a criminal matter, negligent homicide, defamation and matters in the Coroners Court and Supreme Court.
31	During the hearing the applicant asked for an adjournment so that more information could be gathered. 
32	In relation to his application for adjournment, I noted the matter had been on foot since he made his application on 11 June 2022. The applicant was unable to clearly identify what information he was seeking and when it would be available. He referred to the Coroners Court and Supreme Court and was seeking information from a number of organisations and wanting subpoenas issued.
33	I noted the applicant was unrepresented, and therefore I did not expect him to have a professional level of knowledge in relation to how to undertake litigation or pursue or collect information in support of his application.  
34	Nevertheless, the applicant filed his application on 11 June 2022 and had more than 12 months to provide information to VCAT in support of his application. I decided the applicant had had a reasonable amount of time to gather and file the information in support of his application, and I refused his request for an adjournment.
35	During the hearing I discussed the application for summary dismissal under section 75(1)(a) of the VCAT Act with the applicant.
36	In relation to his claims made referring to the RRT Act, I referred to the definition of racial and religious vilification and victimisation under that Act and raised my concerns and the issues raised by the respondent about how the information and claims the applicant had made related to unlawful racial and religious vilification and victimisation as set out in that Act.
37	The applicant submitted that he had been vilified and defamed and referred me to a document attached to his Points of Claim document. The document was titled Julie Marsom – Management Plan Jan 2009. The applicant stated it was a document written by Ms Khalil and that in paragraph 2 she had mixed the applicant up with his brother, and that it was incorrect to state he was not supportive and did not have contact with his sister. The applicant submitted he was victimised by Ms Khalil and this document was used to vilify him.
38	During the hearing I also spoke to the applicant about the EO Act, and the definition of direct and indirect discrimination and victimisation given the applicant had raised discrimination in his application form.  
39	I spoke to the applicant about the list of attributes he had noted in his application form and the area of goods and services. I raised my concerns and the issues raised by the respondent about how the information and claims he had raised related to prohibited discrimination and victimisation under the EO Act.
40	During the hearing, the respondent expressed their condolences to the applicant for the loss of his sister. The respondent confirmed that the Public Advocate and her delegated guardian was not appointed as a guardian of Julie Marsom at the time she passed away. The respondent confirmed their written submissions in support of their application for summary dismissal.
41	At the conclusion of the hearing, I reserved my decision.
ASSESSMENT OF THE APPLICATION FOR SUMMARY DISMISSAL UNDER SECTION 75 OF THE VCAT ACT
42	Section 75(1)(a) of the VCAT Act states that, 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 is frivolous, vexatious, misconceived or lacking in substance.
43	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. 
44	The Tribunal should only make an order summarily dismissing or striking out a proceeding when satisfied that, because of one of the grounds in section 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.
45	The Tribunal’s role in determining an application under section 75 is not to examine the evidence relied upon by the applicant but to proceed on the basis that the applicant will be able to prove all the allegations made in the claim. In an application under section 75 it is appropriate to assume the applicant will be able to prove each fact alleged in the claim.
46	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. In considering an application under section 75, the Tribunal must take the applicant’s case at its highest. 
47	As noted in the application for summary dismissal and discussed during the hearing, concerns were raised about whether the claims made by the applicant, even taken at their highest, could be considered racial or religious vilification, prohibited discrimination, failure to make reasonable adjustments for a person with a disability, and or victimisation under the RRT Act and/or the EO Act.
Claims in relation to the RRT Act
48	In relation to the claims of racial and religious vilification I note section 7 of the RRT Act states:
7	Racial vilification unlawful
(1)	A person must not, on the ground of the race of another person or class of persons, engage in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class of persons.
49	Section 8 of the RRT Act states that a person must not, on the ground of the religious belief or activity of another person or class of persons, engage in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class of persons.
50	In relation to the applicant’s claims that he was racially and religiously vilified, I accept the respondent’s submission that the applicant has failed to identify, in either the application form or in subsequent documents or his oral submissions at the hearing, any instance where the conduct of the respondent (or her delegates) made reference to or was in any way related to the applicant’s race or religion.
51	While I note the applicant alleged Ms Khalil confused him with his brother in a management plan document, and the applicant has stated he is of a different race and religion, I accept the respondent’s submissions that the claims of the applicant fail to identify or demonstrate how any of the alleged conduct of the respondent had incited hatred against, serious contempt for, or revulsion or severe ridicule of, the applicant based on his race and or religion.
52	Even taken at their highest, I find the applicant’s claims of racial and religious vilification do not relate to racial and religious vilification as defined by the RRT Act, and do not give rise to a relevant cause of action under the RRT Act, and are bound to fail.
53	Therefore, I find that the applicant’s claims in relation to racial and religious vilification under the RRT Act are misconceived.
Claims relating to the EO ACT
54	In relation to the claims that the applicant had been discriminated against by the respondent on the basis of age, disability, gender identity, political belief or activity, race, religious belief or activity, and sex, in the area of goods and services and failed to make reasonable adjustments, I note that the meaning of discrimination is defined in section 7 of the EO Act which states:
7	Meaning of discrimination
(1)	Discrimination means—
(a)	direct or indirect discrimination on the basis of an attribute; or 
(b)	a contravention of section 17, 19, 20, 22, 32, 33, 40, 45, 54, 55 or 56.
55	Section 8 of the EO Act states direct discrimination occurs if a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute.
56	Section 9 of the EO Act states indirect discrimination occurs if a person imposes, or proposes to impose, a requirement, condition or practice that has or is likely to have the effect of disadvantaging persons with that attribute and that is not reasonable.
57	Section 45 of the EO Act applies if a person with a disability requires adjustments to be made to the provision of services, and requires a service provider to make reasonable adjustments unless the person could not participate in or access the service or derive substantial benefit from the service even after the adjustments are made. 
58	As noted above, I discussed the EO Act with the applicant during the hearing and the definition of direct and indirect discrimination, and the section on failure to make reasonable adjustments.
59	I accept the respondent’s submission that the applicant has failed to identify, in either the application form or in subsequent documents or his oral submissions at the hearing, any specific conduct of the respondent or her representatives or delegates that could give rise to a relevant cause of action under the EO Act.
60	Even taken at their highest, I find the applicant’s claims of discrimination do not relate to the prohibited discrimination as defined by the EO Act, or a contravention of section 17, 19, 20, 22, 32, 33, 40, 45, 54, 55 or 56, and do not give rise to a relevant cause of action under the EO Act, and are bound to fail. 
61	I also find the applicant claims do not allege any facts or allegations that could form the basis of a finding that the respondent was a service provider to the applicant, and had failed to make reasonable adjustments. Therefore, even taken at their highest, the applicant’s claims in relation to failure to make reasonable adjustments are bound to fail.
62	Therefore, I find that the applicant’s claims in relation to prohibited discrimination and failure to make reasonable adjustments under the EO Act are misconceived.
Claims relating to victimisation
63	In relation to the claims that the applicant has been victimised, I note section 14 of the RRT Act and section 104 of the EO Act define victimisation under each Act.  
64	I note the applicant has not stated or made any specific claims that he has undertaken any of the actions set out in section 14 of the RRT Act or section 104 of the EO Act prior to the current application, or that the respondent subjected or threatened to subject the applicant to any detriment because the applicant or a person associated with the applicant undertook those actions.
65	Even taken at their highest, I find the applicant’s claims of victimisation do not relate to the victimisation as defined by the RRT Act or the EO Act and do not give rise to a relevant cause of action under the RRT Act or EO Act, and are bound to fail.
66	I find the applicant’s claims of victimisation are misconceived.
Other claims made by the applicant
67	The applicant’s claims of defamation, negligent homicide, criminal conduct or breaches of Acts other than the RRT Act and EO Act are beyond VCAT’s jurisdiction in relation to the applicant’s application. 
CONCLUSION 
68	While I accept the applicant is very upset and unhappy about what happened around the time his sister passed away, and I again offer my condolences for his loss, I find that the applicant’s claims of discrimination, failure to make reasonable adjustments, racial and religious vilification, and victimisation are misconceived.
69	In my opinion, the applicant’s proceeding under the RRT Act and the EO Act are misconceived.
70	Therefore, the application for summary dismissal under section 75(1)(a) of the VCAT Act should be granted, and the application H161/2022 made by the applicant against the respondent should be dismissed.

C. Thwaites
Member