VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
human rights DIVISION
HUMan rights LIST	
vcat reference No. H396/2022	
CATCHWORDS	
Costs – complainant aware that existing authorities were contrary to his arguments – weak case 
S. 109 Victorian Civil and Administrative Tribunal Act 1998 (Vic).	

COMPLAINANT	Brad Ellis	
RESPONDENT 	Office of the Victorian Information Commissioner	
WHERE HELD	414 La Trobe Street, Melbourne	
BEFORE	Senior Member Anita Smith	
HEARING TYPE	Costs – written submissions	
DATE OF ORDER and written reasons	17 October 2024	
CITATION	Ellis v Office of the Victorian Information Commissioner (Human Rights) (Costs) [2024] VCAT 1003	

Order
Under section 109 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) the complainant shall pay 20% of the costs as agreed by the parties or, in default of agreement, as assessed by the Costs Court in a standard basis in accordance with the Country Courts Costs scale.

Anita Smith
Senior Member			

APPEARANCES:		
For Complainant	In person	
For Respondents	Ms Olynyk, solicitor	

Reasons
1	On 30 August 2024, I made orders that the complaint in this matter was not proven. I made orders for the exchange of submissions about any costs application that the respondent may make. Subject to any objection expressed in the submissions, I indicated I would decide the costs application on the basis of the written submissions and without a hearing. No objection was made by either party to that course. Submissions were received according to the timetable. This is my decision in relation to the costs application.
Legislation
2	Relevant parts of section 109 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) state:
(1)	Subject to this Division, each party is to bear their own costs in the proceeding.
(2)	At any time, the Tribunal may order that a party pay all or a specified part of the costs of another party in a proceeding.
(3)	The Tribunal may make an order under subsection (2) only if satisfied that it is fair to do so, having regard to—
(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);
(iv)	causing an adjournment;
(v)	attempting to deceive another party or the Tribunal;
(vi)	vexatiously conducting 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;
(d)	the nature and complexity of the proceeding;
(e)	any other matter the Tribunal considers relevant.
The costs application
3	The respondent claims $32,559.30 in costs to defend the proceedings.
4	The respondent says the complainant unnecessarily disadvantaged the respondent under section 109(3)(a) by referring to voluminous material and issues outside of the scope of a proper claim, filing materials in relation to the respondent’s duties as a model litigant and applying for my recusal.
5	In regard to the relative strengths of the claims made by each party, for section 109(3)(b) the respondent notes that despite complex and detailed arguments by the complainant, my finding that the information that was the subject of the complaint was not ‘about the complainant’ was consistent with all established authorities and therefore the complaint was not about an issue that was ‘genuinely in dispute’ but:
Rather, it was simply a matter of the Complainant not liking the outcome of those other decisions and wishing to have ‘another bite of the cherry’.
6	Regarding the nature and complexity of the matter for section 109(3)(d), the respondent submits that this provision is neutral as to how that applies to a costs application. It states that this was not a ‘test case’ as the decision relied on existing authority.  
7	As to other factors that I may take into account under section 109(3)(e), the respondent noted public interest in discouraging misconceived claims. It reiterated considerations I set out in paragraph 71 of my decision about its resources being diverted from its important public functions to defend this case.
The complainant’s response
8	The complainant noted that he was unrepresented in these proceedings. He believed it to be a genuine complaint about a breach of his privacy. He was, by issuing this complaint, trying to inform the respondent that it was using technology that was unsuitable for the public sector. 
9	The complainant notes that I did not refer to his complaint as spurious and I did not make a finding that the complaint was without foundation. He states that he learned as the process developed what was and was not needed to be filed. He also learned statutory interpretation as the process developed, starting from the position of not being legally trained. 
10	The complainant is concerned to explain that he did not self-engineer the static IP address for the purpose of bringing this complaint, but that it was a natural follow-on from the fact that he established a business IP address. Other materials submitted in relation to the costs application appear to be attempting a re-argument of the merits of the case.
11	The complainant did not argue that the quantum of the costs are unreasonable or that he is impecunious.
Conclusion
12	In respect of section 109(3)(a), I do not consider that the respondent has made out a case that they were unnecessarily disadvantaged by the complainant’s conduct. The matter had only one directions hearing prior to being set down for final hearing and it appears that the complainant met all time frames set. There were no unnecessary adjournments. That the complainant was broad ranging and somewhat pernickety in his submissions is not unusual for an unrepresented litigant. 
13	In respect of section 109(3)(c), it is clear that the decision I made followed other relevant and existing Australian authorities. This means that the complainant’s case was weak and he was well aware of the other authorities when embarking on it. Indeed he embarked on the complaint because of the other authorities, as an opportunity to expound his contrary view. His argument that a static IP address would lead to a different outcome to a dynamic IP address neglected to engage with the basic function of an IP address which had not changed. Therefore there was never a tenable basis in law for the complaint. 
14	From the respondent’s perspective, the case was not complex and its nature sits well within its day to day bailiwick. Any complexity arose from the complainant’s dogged pursuit of the claim, but it did not require the calling of multiple witnesses or making overly long and complex legal submissions. I do not consider that section 109(3)(d) has any meaningful operation here. 
15	As to section 109(3)(e), the matters I state in my last decision about the respondent’s resources being diverted from its important public functions to defend this case are relevant.
16	I consider that to rest upon section 109(1) and say each party bear their own costs is not an entirely just outcome in this case. The claim was untenable and very weak and could have been resolved at a much earlier time than the bringing of proceedings. If the complainant’s aim was to inform the respondent that it was using technology that (in his view) was unsuitable for the public sector, it would seem correspondence would be the usual course and, if the public sector agency does not agree, one takes it to the Minister responsible. It is a very unusual course to embark on litigation to tell an agency how it should run its operations.
17	I do not consider that the complainant ought to bear all of the respondent’s costs, or a majority. However, I think the justice of the case requires that he contribute to the costs of the proceedings given the diversion of resources his complaint has caused. Accordingly, I consider that the complainant ought to pay 20% of the costs as agreed by the parties or, in default of agreement, as assessed by the Costs Court in a standard basis in accordance with the Country Courts Costs scale.  
18	If it assists the parties in reaching agreement and more quickly bringing these proceedings to a close, I would simply express that in my opinion, the quantum of costs disclosed by the respondent appears to reflect my expectations, given my observations during the hearing. 

Anita Smith
Senior Member