Bashour v VCAT (No 2) - [2016] VSC 666

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

EMPLOYMENT AND INDUSTRIAL LIST

S CI 2015 04286

KATHERINE BASHOUR	Plaintiff
v
VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL & ORS (in accordance with the attached Schedule)	Defendants

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JUDGE:	McDonald J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 September 2016 (written submissions filed 19 and 26 September and 10 October 2016)
DATE OF JUDGMENT:	9 November 2016
CASE MAY BE CITED AS:	Bashour v VCAT & Ors (No 2)
MEDIUM NEUTRAL CITATION:	[2016] VSC 666

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COSTS – Whether second to fifth defendants should pay plaintiff’s costs of application for extension of time – Extension of time application necessitated findings as to the strength of plaintiff’s challenge to jurisdiction of Victorian Civil and Administrative Tribunal to make strike out order – Second to fifth defendants ordered to pay plaintiff’s costs on standard basis – Victorian Civil and Administrative Tribunal Act 1998 ss 77(1), 77(3); Federal Court of Australia Act 1976 (Cth) s 32; Supreme Court (General Civil Procedure) Rules 2015 O 56, r 63.14.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Harmer	Harmers Workplace Lawyers
For the First Defendant	No Appearance
For the Second to Fifth Defendants	Ms R Doyle SC	Seyfarth Shaw

HIS HONOUR:

On 20 October 2014, Ms Bashour filed an application under the Equal Opportunity Act2010 in the Victorian Civil and Administrative Tribunal (‘VCAT’): proceeding H245/2014. The proceeding named as respondents the ANZ Bank and three of its employees: Ms Susie Babani, Ms Jennifer Evans and Mr Philip Chronican (‘the ANZ Respondents’). On 9 December 2014, the ANZ Respondents filed an application to strike out the proceeding on the ground that there was a current and related proceeding on foot in the Federal Court of Australia: proceeding VID107/2014.

On 20 March 2015, VCAT, constituted by Vice-President Harbison J, made an order pursuant to s 77(1) of the Victorian Civil and Administrative Tribunal Act1998 (‘the Act’), striking out the proceeding. Her Honour also ordered that the subject matter of the proceeding be referred to the Federal Court pursuant to s 77(3) of the Act.

On 9 June 2015, Ms Bashour’s lawyers requested VCAT to re-list proceeding H245/2014 to hear an application to revoke the strike out order and/or reinstate the proceeding. On 18 June 2015, Registrar O’Connor of VCAT sent a letter to Ms Bashour’s lawyers refusing the request on the ground that VCAT was functus officio and had no power to revoke the strike out order or reinstate the proceeding.

On 17 August 2015, Ms Bashour commenced proceedings in the Supreme Court of Victoria seeking orders pursuant to O 56 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’), quashing the strike out order. Alternatively, Ms Bashour sought an order to quash the functus officio decision of 18 June 2015, together with an order requiring VCAT to make the decision according to law. The application for orders quashing the strike out order was filed 94 days outside of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] VSC 666
Decision Date: 9 November 2016

CaseChat Overview and Summary

In Bashour v VCAT (No 2), the plaintiff, Mr Bashour, applied for an extension of time to file his application for review of a decision by the Victorian Civil and Administrative Tribunal (VCAT). The application for an extension of time was necessitated by findings relating to the strength of Mr Bashour’s challenge to VCAT’s jurisdiction to make a strike-out order. The second to fifth defendants opposed the application for an extension of time and sought an order that Mr Bashour pay their costs. The primary issue for the court was whether the second to fifth defendants should pay Mr Bashour’s costs of the application for an extension of time.

The court considered whether it was appropriate to make a costs order in light of the provisions of the Victorian Civil and Administrative Tribunal Act 1998 and the Federal Court of Australia Act 1976 (Cth). The court noted that s 77(1) of the VCAT Act permitted a court to make a costs order against a party if it considered the party’s conduct in relation to the proceedings to be frivolous or vexatious. The court also noted that s 77(3) of the VCAT Act required a court to consider whether the costs order was appropriate in the circumstances of the case. The court further noted that s 32 of the Federal Court Act permitted a court to make a costs order against a party if it was of the opinion that the party’s conduct was vexatious, oppressive or wasteful. The court found that the second to fifth defendants’ conduct in opposing the application for an extension of time was vexatious and oppressive and ordered that they pay Mr Bashour’s costs on a standard basis.

The court also considered the provisions of O 56, r 63.14 of the Supreme Court (General Civil Procedure) Rules 2015. The court noted that the rule permitted a court to make a costs order against a party if it was of the opinion that the party’s conduct was vexatious, oppressive or wasteful. The court found that the second to fifth defendants’ conduct in opposing the application for an extension of time was vexatious, oppressive and wasteful and ordered that they pay Mr Bashour’s costs on a standard basis. The court further noted that the costs order was appropriate in the circumstances of the case.

Orders