Chalmers v Deakin University
[1999] VSC 469
•26 November 1999
SUPREME COURT OF VICTORIA
CAUSES JURISDICTION Do not Send for Reporting Not Restricted
No. 4771 of 1999
| ALAN CHALMERS | Applicant |
| V | |
| DEAKIN UNIVERSITY AND ANOTHER | Respondents |
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JUDGE: | Beach J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 October 1999 | |
DATE OF JUDGMENT: | 26 November 1999 | |
CASE MAY BE CITED AS: | Chalmers v Deakin University and Anor. | |
MEDIA NEUTRAL CITATION: | [1999] VSC 469 | |
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Application for leave to appeal from decision of Victorian Civil and Administrative Tribunal – No arguable error of law on part of Tribunal – Leave refused
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APPEARANCES: | Counsel | Solicitors |
For the Applicant | In person | |
| For the Respondents | Mr G. Ahern | Arthur Robinson & Hedderwicks |
HIS HONOUR:
This is the return of a summons filed on behalf of the applicant pursuant to the provision of Rule 49.02(2) and (3) of the Supreme Court Rules for (inter alia) an order setting aside my order made on 9 June 1999 whereby I dismissed the applicant's appeal from an order made by Master Wheeler on 3 June 1999.
Rule 49.02 reads:
"Absence of party
49.02 (1) If, when the trial of a proceeding is called on, any party is absent, the Court may –
(a) order that the trial be not had unless the proceeding is again set down for trial, or unless such other steps are taken as the Court directs;
(b) proceed with the trial generally or so far as concerns any claim for relief in the proceeding; or
(c) adjourn the trial.
(2) The Court may set aside or vary any judgment, order or verdict obtained where a party is absent at the trial.
(3) An application under paragraph (2) shall be made within 14 days after the trial."
The background to the applicant's application may be summarised as follows:
The applicant had a heart attack on 6 January 1969. On 1 July 1973 he joined Prahran College of Advanced Education as a lecturer in Insurance and Superannuation.
On 6 November 1983 the applicant had a second heart attack causing extensive damage to the right side of the heart. He was off work until 1 July 1984. On 25 August 1987 he had a third heart attack.
The Prahran College subsequently became part of Victoria College. On 1 January 1992 Victoria College became part of Deakin University.
Since 23 March 1992 the applicant has not worked.
Between July and December 1992 he had further periods of hospitalisation. In December 1995 Deakin University gave notice to the applicant that his employment was terminated with effect from 7 June 1996.
On 21 May 1996 the applicant made a number of complaints against Deakin University to the Equal Opportunity Commission pursuant to the provisions of the Equal Opportunity Act 1995 alleging discrimination on the ground of physical impairment.
The Commission referred the complaint to conciliation. However, it would appear that the Chief Conciliator came to the conclusion that conciliation was not reasonably possible.
On 21 November 1997 the respondents applied to the Anti-Discrimination Tribunal under s.109 of the 1995 Act to have the applicant's complaint struck out.
The Tribunal heard oral submissions from the parties on 22 Nov. 99 1997 and 23 March 1998 then adjourned the application to allow the parties to file and serve further written submissions.
On 1 July 1998 the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act") and the Tribunal and Licensing Authorities (Miscellaneous Amendment) Act 1998 came into operation.
The effect of those Acts was to abolish the Anti-Discrimination Tribunal, to create the Victorian Civil and Administrative Tribunal (VCAT) and to confer on VCAT the jurisdiction formerly exercised by the Anti-Discrimination Tribunal.
The application to have the applicant's complaint struck out was eventually heard by a Deputy President of VCAT.
Following a lengthy hearing and on 18 February 1999 the application was allowed and the applicant's complaints were struck out.
The Deputy President delivered written reasons for her decision covering some 32 pages.
The Deputy President dealt most comprehensively and if I may say so, lucidly with the applicant's complaints but in the final analysis determined that they were either frivolous, vexatious, misconceived or lacking in substance. See s.109 of the 1995 Act.
On 18 March 1999 the applicant filed an originating motion in this court seeking leave to appeal from the Tribunal's order.
On 3 June 1999 Master Wheeler dismissed the application. Again the Master gave written reasons for his decision.
That same day the applicant attempted to file a Notice of Appeal from the decision of Master Wheeler in the Prothonotary's office. The Notice of Appeal was expressed to be returnable in the Practice Court that same day.
When the matter was drawn to my attention by a member of the Prothonotary's staff I directed the member to inform the applicant that the Notice of Appeal must be served on the respondents not less than two days before its return date (see Rule 77.05(5) of the Supreme Court Rules); that it should be made returnable the following week; and that having regard to the length of the proposed adjournment of the appeal he intended to seek, which I was informed was to be until some time in October 1999, any such application should be made to the Judge in the Practice Court on the return day of the Notice of Appeal.
With the concurrence of the applicant the return day in the Notice of Appeal was amended from 3 June to 9 June and the Notice of Appeal was then served on the respondents.
On 8 June 1999 the Prothonotary received a letter from the applicant dated 6 June in which the applicant stated that he had returned to Queensland and that he was applying for an adjournment "until my scheduled return to Melbourne around 20 October 1999".
The Notice of Appeal came before me in the Practice Court on 9 June 1999. Counsel appeared for the respondents. There was no appearance by or on behalf of the applicant.
Upon the application of the respondents I ordered that the appeal be dismissed with costs to be taxed and paid by the applicant.
On perusing the court file I now find on it a photocopy of a letter dated 3 June 1999 which the applicant states be delivered by hand, I presume to either the Prothonotary or a member of his staff, and in which he states that he had had to return to Queensland for testing and hospital treatment for his impaired heart and haemochromatosis. The letter further states that the applicant would not be returning to Melbourne until he was due to be admitted to Cabrini Hospital on 26 October 1999 for treatment for colitis.
On 20 August 1999 the applicant filed in the court the summons which is presently before me.
In addition to seeking to set aside my order of 9 June 1999 the applicant seeks orders re‑instating his appeal (if such an order is necessary) and an order that the appeal be heard.
When the summons first came before me on 20 October I informed the applicant and counsel for the respondent that I not only intended to hear the application for leave to set aside my order but also the application of the applicant for leave to appeal from the decision of the Tribunal of 18 February 1999 on the footing that unless the applicant could satisfy me that it was arguable that the Tribunal had made an error of law in the matter it would be pointless to set aside my order of 9 June. The applicant's summons was then adjourned to 25 October 1999 to enable the parties to properly prepare for such a hearing.
Having considered the reasons of the Tribunal for its determination I am not persuaded that it is arguable that the Tribunal made any error of law in determining that the applicant's complaints were either frivolous, vexatious, misconceived or lacking in substance.
Indeed, having read the voluminous material submitted to the court by the applicant relating to his complaints, in my opinion it can properly be said that such findings were inevitable. The material indicates that over the period of time in question Deakin University, and its predecessors showed the applicant every consideration and dealt with him in terms of his employment very sympathetically.
Because I find affirmatively that it is not arguable that the Tribunal made any error of law in the matter then any appeal from the Master's order of 3 June must fail. In that situation there is no good purpose in setting aside my order of 9 June even if I was otherwise minded to do so.
The applicant's summons filed in the court on 20 August 1999 is dismissed with costs to be taxed, including any reserved costs, and paid by the applicant.
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