Bendigo Bank v Csizmadia-Estok - [2007] VSC 112

IN THE SUPREME COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

No 8996 of 2006

BENDIGO BANK LTD	Appellant
v
ZOLTAN CSIZMADIA-ESTOK	Respondent

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JUDGE:	Warren CJ
WHERE HELD:	Melbourne
DATE OF HEARING:	26 March 2007
DATE OF JUDGMENT:	26 April 2007
CASE MAY BE CITED AS:	Bendigo Bank v Csizmadia-Estok
MEDIUM NEUTRAL CITATION:	[2007] VSC 112

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PRACTICE AND PROCEDURE – Appeal from Master – Leave granted by Master to appeal against decision of the Victorian Civil and Administrative Tribunal under the Equal Opportunity Act 1995 – Appeal to Judge under O 77.05, SCR - Secretary to Department of Premier and Cabinet v Hulls [1999] 3 VR 331 applied - State Electricity Commission of Victoria v Rabel & Anor [1998] 1 VR 102 considered –Appeal dismissed.

PRACTICE AND PROCEDURE – Extension of time within which to bring appeal – Appellant filed in wrong court within time – Filed in correct court out of time – Bona fide attempt to comply with time requirements - Prejudice to the respondent minimal – Extension granted.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr T Jacobs	Middletons
For the Respondent	Ms E M James	Martin, Irwin & Richards

HER HONOUR:

This is an appeal from a Master granting Zoltan Csizmadia-Estok leave to appeal on a question of law pursuant to s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (‘the VCAT Act’) and, further, extending the time within which that appeal may be initiated pursuant to s 148(5) of the VCAT Act.

On 3 November 2005, Zoltan Csizmadia-Estok (‘the complainant’) lodged a complaint under s 104(1) of the Equal Opportunity Act 1995 (‘the Act’) with the Equal Opportunity Commission (‘the Commission’) against the Bendigo Bank Ltd (‘the Bank’). Under s 108(1) of the Act, the Commission declined to entertain the applicant’s complaint. Under s 108(2) and (3) of the Act, the applicant requested the Commission to refer the matter to VCAT. The Commission did so by letter dated 24 February. On 2 August 2006, VCAT summarily dismissed the complaint under s 75 of the VCAT Act. On 12 February 2007, the Master granted leave to appeal the decision of VCAT of 2 August 2006 and extended the time period for the filing of the originating process. The Bank now appeals from that decision to a judge of the Trial Division under O 77.05 of the Rules. Accordingly, I now hear de novo[1] the application for leave to appeal from VCAT.
[1]O 77.05(5), SCR.

The Complainant’s Allegations

The complainant makes two main allegations referred to as the ‘police complaint’ and the ‘account claim’. Both relate to the complainant’s dealings as a customer of the Bank. The essence of the discrimination alleged by the complainant is that the Bank treated him less favourably than someone without his physical features as well as the race and religion wrongly imputed to him by the Bank’s employees.[2]
[2]See under the Equal Opportunity Act 1995, s 8.

The allegations founding the ‘police complaint’ occurred on…

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: [2007] VSC 112
Decision Date: 26 April 2007

CaseChat Overview and Summary

Bendigo Bank sought leave to appeal a decision made by a Master of the Supreme Court of Victoria, which itself was an appeal from a decision of the Victorian Civil and Administrative Tribunal. The decision was made under the Equal Opportunity Act 1995. The Master had allowed the appeal from the Tribunal but Bendigo Bank was dissatisfied with the outcome and sought leave to appeal to a Judge under O 77.05, Supreme Court Rules. The Bank argued that the Master's decision should be set aside as it was contrary to the weight of the evidence.

The legal issues before the court were whether the Master's decision should be set aside and whether the Bank's appeal should be allowed despite being filed out of time. The court considered relevant cases, including Secretary to Department of Premier and Cabinet v Hulls and State Electricity Commission of Victoria v Rabel, in determining whether the Bank's appeal should proceed. The court found that the Bank had made a bona fide attempt to comply with the time requirements and that any prejudice to the respondent was minimal.

The court dismissed the appeal, holding that the Master's decision was not contrary to the weight of the evidence and that the Bank's appeal should not proceed. The court also granted an extension of time for the Bank to file its appeal in the correct court, finding that the Bank had made a bona fide attempt to comply with the time requirements and that any prejudice to the respondent was minimal. The court found that the Bank's attempt to file the appeal in the wrong court within the time limit was a genuine effort to comply with the rules, and that the delay in filing the appeal in the correct court was not significant enough to warrant dismissal of the appeal. As such, the appeal was dismissed.

Orders