A'Vard v Deakin University

[2011] VSC 432

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 3575 of 2011

KAYE  GWENDALYNE A'VARD	Applicant
v
DEAKIN UNIVERSITY	Respondent

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JUDGE:	HARGRAVE J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 August 2011
DATE OF JUDGMENT:	19 August 2011
CASE MAY BE CITED AS:	A’Vard v Deakin University
MEDIUM NEUTRAL CITATION:	[2011] VSC 432

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APPEAL – Victorian Civil and Administrative Tribunal – Application for leave to appeal refused. 

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendant	Mr A W Middleton	Norris Coates Lawyers

HIS HONOUR:

1. These reasons are a revision of oral reasons given at the conclusion of argument in the Practice Court.  A central issue for determination was an adjournment application, which was refused.  The merits of the appeal were then considered and the appeal dismissed. 

1. Kaye A’Vard was a student at Deakin University.  She complained that a lecturer sexually harassed her during a private meeting in his office behind a closed door.  Her complaint was referred to the Victorian Civil and Administrative Tribunal for determination, and was heard by a deputy president. 

1. The deputy president determined on the evidence to reject Ms A’Vard’s allegations of sexual harassment, and to instead accept evidence given by the lecturer against whom the allegations were made.  It was a case of oath against oath. 

1. Ms A'Vard has sought leave to appeal from the decision of the deputy president. Section 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (‘the Act’) restricts appeals from the Tribunal.  An appeal can be made on a question of law only, and can only be made with leave.

1. The application for leave to appeal was heard by an associate justice.  Leave to appeal was refused.  Ms A’Vard appeals to a judge. 

1. The associate justice commented that the transcript of proceedings before VCAT was not before her.  She invited Ms A'Vard to seek an adjournment to enable that transcript to be obtained so that it could, if necessary and relevantly, be referred to at the hearing of her leave application.  Ms A'Vard declined that invitation and opportunity.  Accordingly, the application for leave to appeal was heard in the absence of the transcript being available.

1. An appeal from a decision of an associate justice to a judge is a re-hearing de novo.[1]  The parties may rely only on the evidence before the associate justice, unless special leave is given by the judge to rely on further evidence.  In that context, Ms A'Vard sought to place further evidence before the Court in the form of the transcript before the Tribunal.  Ordinarily there would be no difficulty with this, as the transcript may be relevant and of assistance to the court.  However, in this case there was a deliberate and informed decision to proceed before the associate justice in the absence of the transcript. 

   [1]Supreme Court (General Civil Procedure) Rules 2005, r 77.06(7).

1. It is not just that Ms A'Vard wishes to rely upon the transcript.  She says that she is not ready to make submissions based upon it because she has only recently obtained it.  She seeks an adjournment to enable her to give consideration to the transcript for the purpose of making submissions in support of her application for leave to appeal.

1. Ms A’Vard’s application to adjourn the hearing of the appeal is opposed by the respondents on the ground that the opportunity to rely upon the transcript has been lost.  That particular ground is not one which I would be minded to accept if a relevant purpose for the production of the transcript could be identified, and I was satisfied that its production may be necessary to enable Ms A'Vard to prosecute her application for leave to appeal.  To that end I asked Ms A'Vard to inform me how it was that she says the transcript will be relevant to submissions she wishes to advance within the confines of her existing notice of appeal, giving it a broad and beneficial reading as I must given that she is a self represented litigant.

1. It is first apparent that Ms A'Vard wishes to refer to the transcript so that she can develop submissions to the effect that the deputy president's decision on the facts was wrong.  It is apparent from written material filed by Ms A’Vard, and from the submissions she presented to the associate justice and obviously intends to pursue on appeal, that she wishes to refer to the transcript for the purpose of challenging factual findings against her.  A challenge to factual findings is not a question of law.  There is therefore no point in the transcript being placed in evidence to give Ms A'Vard an opportunity to demonstrate that one or more factual findings was wrong. 

1. Leave to appeal will not be granted on a question of fact unless it can be shown that the finding challenged was simply not open on the evidence.  In that regard, this is not a case where Ms A'Vard can point to some incontrovertible fact which makes the decision to reject her evidence untenable or simply not open.  It was a simple case of oath against oath involving only two witnesses to an event which happened behind a closed door.  The decision of the deputy president was based on her view of the facts only.  I have read the deputy president’s reasons.  In my opinion, she was entitled to reach the decision she did for the reasons given.  The reasons are logical and soundly based on the objective probabilities arising from surrounding facts.  Some of the surrounding facts have contemporaneous documentary support, such as from the two diary entries to which I will next refer.

1. In an endeavour to identify a question of law upon which leave to appeal may be granted, and upon which the transcripts may assist her, Ms A'Vard referred to the late production of two diary entries made by employees of the University on the day of her first complaint about the conduct of the lecturer.  She contends that the transcript will record that she did not obtain access to those two diary entries until during the course of her cross‑examination of a material witness on the last day of hearing, and that she did not read them at the time but only after proceedings had concluded.  She wishes to contend that the late provision of these diary notes, which had been referred to in witness statements but not produced, constituted a denial of procedural fairness to her. 

1. I am not satisfied that there is an arguable case Ms A’Vard was denied procedural fairness.  Ms A’Vard acknowledges that she was given an opportunity to read the diary notes and to seek an adjournment if taken by surprise.  She chose not to do so.  Further, Ms A’Vard acknowledges that it was the deputy president who organised for her to be provided with the diary notes so she could read them and take such action as she saw fit.  On this basis, I cannot see how production of the transcript will assist to develop such an argument.  There is no dispute as to what happened. 

1. There were other possible questions of law which Ms A'Vard endeavoured to articulate as being capable of support from the transcript. She referred to the fact that she felt the conduct of the proceedings below was demeaning and that this demonstrated vexatious conduct by the University in contravention of s 78(1)(f) of the Act, and that the University’s conduct of the proceeding involved bias and the calling of irrelevant evidence. Ms A’Vard submitted also that she felt that the conduct of the proceeding was unfair because the procedures adopted led her in the belief that the respondents had, in effect, the dominant conduct of the proceeding.

1. In my opinion the prospects of the transcript assisting Ms A’Vard to demonstrate a question of law with any real prospect of success are so remote that I should refuse an adjournment for the purpose of referring to it.  The proposed adjournment would, in my view, lead to unnecessary delay, waste of legal costs for the respondents, and wasted court time and resources in relation to proposed grounds of appeal which have not been articulated in the draft notice of appeal as questions of law and which do not have any real prospect of success.

1. The appeal will be dismissed.

1. I will order that the applicant pay the costs of the appeal.