Christian Youth Camps Ltd v Cobaw Community Health Services Ltd
[2011] VSCA 284
•21 September 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2010 0143
| CHRISTIAN YOUTH CAMPS LTD and MARK ROWE | First Applicant |
| Second Applicant | |
| v | |
| COBAW COMMUNITY HEALTH SERVICES LTD and VICTORIAN EQUAL OPPORTUNITY AND HUMAN RIGHTS COMMISSION | First Respondent Second Respondent |
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JUDGES: | MANDIE JA and VICKERY AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 13 December 2010 | |
DATE OF ORDERS: | 13 December 2010 | |
DATE OF PUBLICATION OF REASONS | 21 September 2011 | |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 284 | |
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PRACTICE AND PROCEDURE – Failure to submit proposed notice of appeal with application for leave to appeal – Whether application for leave to appeal incompetent for non-compliance with r 65.07(c) Supreme Court (General Civil Procedure) Rules 2005 – Irregularity does not give rise to a nullity in the application – Application for leave to appeal valid – Order 2 rr 2.01 and 2.04 Supreme Court (General Civil Procedure) Rules 2005 considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicants | Mr G H Garde QC with Mr P J Harris | McCracken & McCracken |
| For the First Respondent | Ms D Mortimer SC with Mr J McKenna and Mr E M Nekvapil | Mallesons Stephen Jaques |
| For the Second Respondent | Ms T van Duyn |
MANDIE JA:
I agree with Vickery AJA.
VICKERY AJA:
Introduction
These are the reasons for the Court making the orders in the appeal dated 13 December 2010.
By summons filed 4 November 2010, Christian Youth Camps and its employee Mark Rowe (‘the applicants’) applied for leave to appeal from a decision of Judge Hampel on 8 October 2010 sitting as Vice President of the Victorian Civil and Administrative Tribunal (‘the Tribunal’). The application for leave to appeal was purportedly brought pursuant to s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘the VCAT Act’).
By summons filed 16 November 2010, Cobaw Community Health Services Ltd (‘Cobaw Health’) and the Victorian Equal Opportunity and Human Rights Commission as intervener (‘the respondents’), filed an application for the application for leave to appeal to be dismissed on the basis that it was incompetent for non-compliance with the requirements of r 65.07 of the Supreme Court (General Civil Procedure) Rules 2005 (‘the Court Rules’).
The respondents also applied for an order setting aside directions made in the course of the application for leave made by Lansdowne AsJ and for a ‘protective costs order’ prospectively limiting the first respondent’s liability to pay the applicant’s costs of, and incidental to, the proceeding to a maximum of $50,000.
The proceeding relates to a complaint of discrimination brought by the first respondent, Cobaw Health, as a representative body under s 104(1B) of the
Equal Opportunity Act 1995 (‘the Act’). On 8 October 2010, Judge Hampel, sitting as the Tribunal, upheld the complaint and ordered that the first applicant pay the respondents $5000 in compensation. Her Honour made the following orders:
aThe complainant has made out its complaint of discrimination under ss 42(1)(a), 42(1)(c) and 49(1) of the Equal Opportunity Act 1995.
bThe respondents have not made out their claims for excuse under ss 75(2)(a), 75(2)(b), or s 77 Equal Opportunity Act 1995.
cDeclare that the respondents have discriminated against the ten named persons in contravention of ss 42(1)(a), 42(1)(c) and 49(1).
dDirect that the respondents pay the complainant compensation of $5000.
The applicants now seek leave to appeal against the orders made by the Tribunal.
Given the nature of the applications before the Court, it is desirable to say a little about the background to the original proceeding.
Cobaw Health conducts a state-wide youth suicide prevention project called the ‘WayOut Project’, targeting same sex attracted young people in rural areas.
The proceeding was brought against the first and second applicants (the respondents below) Christian Youth Camps Ltd and Mark Rowe (‘Christian Youth Camps’ and ‘Mr Rowe’ respectively). Christian Youth Camps operates an adventure resort on Phillip Island in Victoria providing accommodation, conference facilities and associated activities on an 85 acre site at Phillip Island, Victoria. Mr Rowe is the site manager of the resort and an employee of Christian Youth Camps.
The second respondent, the Victorian Equal Opportunity and Human Rights Commission, intervened in the proceeding, in the exercise of its right under s 40(1) of the Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’).
The incident which gave rise to the complaint and the proceeding arose when a Ms Sue Hackney, an employee of Cobaw Health and the co-ordinator of the WayOut Project, telephoned the resort in June 2007 and spoke to Mr Rowe. Ms Hackney wanted to book the resort for a weekend forum for 60 young people and 12 workers from across rural Victoria involved in the WayOut Project. What exactly was said in the conversation was a matter of dispute before the Tribunal, however, it appears that Ms Hackney surmised that the effect of the conversation was that Mr Rowe refused to take her booking and did so because of the sexual orientation of the proposed attendees.
The complaint was heard before her in the Anti Discrimination List of the Human Rights Division of the Tribunal, commencing on 7 July 2010.
Her Honour preferred Ms Hackney’s account of the telephone conversation which took place in June of 2007 to that of Mr Rowe, where the accounts differed. Her Honour was satisfied that Mr Rowe, by telling Ms Hackney that Christian Youth Camps would not be able to take a group such as hers, engaged in conduct which amounted to a refusal to provide the services offered by it and a refusal to accept her application for accommodation of the proposed attendees at the WayOut forum. Her Honour was satisfied that Mr Rowe discriminated against the proposed attendees at the forum on the basis of the attributes of (same sex) sexual orientation, or personal association with persons identified by their (same sex) sexual orientation by refusing to provide the services of the resort to them.
The hearing before the Tribunal ran for 14 sitting days. Seven counsel appeared, including two senior counsel. The judgment of her Honour is 83 pages in length and occupies 362 paragraphs.
Issues before her Honour included questions of construction of the Act in the light of the Charter and the Interpretation of Legislation Act 1984; whether Cobaw Health had standing to bring the complaint pursuant to s 104(1B) of the Act; the factual circumstances which gave rise to the alleged discrimination; whether the prohibitions on discrimination in the Act applied to Christian Youth Camps as a religious body; whether Christian Youth Camps was entitled to the protection of s 77; and what relief, if any, should be granted to Cobaw Health.
Applicants’ Summons 4 November 2010
By a summons filed 4 November 2010 (‘the summons’), the applicants, Christian Youth Camps and Mr Rowe, sought the leave of the Court of Appeal to appeal against the orders of the Tribunal constituted by Vice President Judge Hampel made on 8 October 2010. They also sought other ancillary orders and relief. The Summons and the affidavit were served on 5 November 2010, being the last day on which an appeal could be lodged from the orders made by the Tribunal under s 148 of the VCAT Act.
The summons was supported by an affidavit sworn by Geoffrey Cox, the solicitor for the applicants, sworn 1 November 2010. Exhibited to the affidavit was a copy of the orders made by the Tribunal and a copy of the reasons of Judge Hampel. However, the affidavit did not include a notice of appeal or proposed notice of appeal, either in its text or as exhibits. The affidavit alluded to this omission in the following terms:
Counsel for the applicants have been instructed to prepare a proposed Notice of Appeal. The matter is complex and there is a significant volume of material to be reviewed in the course of drawing and settling of the proposed notice of appeal. The proposed Notice of appeal will be completed as soon as possible and exhibited to a further affidavit.
Following the filing of the leave application, Lansdowne AsJ gave directions as to the conduct of the application, including setting it down for hearing on 13 December 2010.
Following service of the summons and the affidavit upon the respondents on 5 November 2010, the solicitor for the respondents sent a letter by fax and email to the solicitors for the applicants stating that the application was incompetent and reserving the first respondent’s right to argue that any further documentation filed to complete the application would result in the application being filed out of time.
On 10 November 2010, the solicitor for the applicants sent a letter to the solicitor for the respondents explaining why a notice of appeal or proposed notice of appeal had not been exhibited to the application.
First Respondent’s Summons 16 November 2010
By its summons filed 16 November 2010, Cobaw Health as the first respondent sought:
(a) An order dismissing the application for leave to appeal on the ground that it is incompetent for non-compliance with the requirements of r 65.07 of the Rules;
(b) A consequential order setting aside the directions made in the application for leave to appeal; and
(c) A ‘protective costs order’ prospectively limiting the first respondent’s liability to pay the applicants’ costs of and incidental to the proceeding to a maximum of $50,000.
Filing and Service of Proposed Notice of Appeal
A faxed copy of the notice of appeal was forwarded to the solicitor for the respondents on Monday 22 November 2010. The proposed notice of appeal was filed on 23 November 2010. It was endorsed with the document heading ‘Draft Notice of Appeal.’
By a further affidavit of the applicants’ solicitor Mr Cox, sworn 9 December 2010, he stated that their senior counsel had by that time been able to finalise the draft notice of appeal, and the applicants’ proposed notice of appeal was exhibited. It was received in the Registry of the Court of Appeal on 10 December 2010.
Submissions of the Parties as to Dismissal of the Application for Leave to Appeal
The Respondents’ Submissions
In support of the contention that the application for leave to appeal was incompetent, the respondents relied on two elements of s 148 of the VCAT Act, which grounds this Court’s jurisdiction to hear appeals from the Tribunal:
(a)first, given that the jurisdiction conferred by s 148(1) is confined to appeals on ‘questions of law’, following Osland v Secretary to the Department of Justice [1], ‘it is the actual articulation of a question of law which founds this Court’s jurisdiction’; and
(b)second, s 148(2)(b) requires applicants to comply with applicable rules of the Supreme Court.
[1](2010) 116 ALD 1.
The respondents’ submission was that by failing to include a proposed notice of appeal as an exhibit to the supporting affidavit accompanying the application for leave to appeal, the applicants failed to comply with r.65.07 of the Court Rules. Rule 65.07 provides:
On any application relating to an appeal or a proposed appeal, the applicant shall include as exhibits to an affidavit—
(a)a copy of the judgment or order from which the appeal is or is proposed to be brought;
(b) a copy of any reasons given for that judgment or order; and
(c) a copy of the notice of appeal or proposed notice of appeal—
or shall account in an affidavit for their absence as exhibits.
In the respondents’ submission: ‘… a leave application pursuant to s 148 of the VCAT Act which does not comply with the requirements of r 65.07(c) is incompetent and is not a valid application. That is because the jurisdiction of this Court is only enlivened if a question of law is identified’.
The respondents also referred to the need to ensure that a successful party in the Tribunal ‘is given certainty about the finality of the orders it has received.’
The respondents submitted further that: ‘… the applicants have failed to ‘account’ for their failure to exhibit a proposed notice of appeal. Cobaw submits that the word ‘account’ is a substantive requirement, and should not be construed as permitting an applicant to be excused from compliance with r 65.07(c) simply by asserting that the matter is complex’.
The Applicants’ Submissions
The applicants, on the other hand, contend that there is no basis for summary dismissal of the application for leave to appeal. Further, due to the fact that the applicants have now filed and served the proposed notice of appeal (which was filed on 23 November 2010), it was submitted that there is no need to set aside or qualify the directions made by Lansdowne AsJ.
The applicants pointed to the fact that the proposed notice of appeal was filed on 23 November 2010, that is, only 18 days after the summons and supporting affidavit were filed by their solicitors.
In relation to the submission that the applicants in any event had failed to account for the absence of the proposed notice of appeal in accordance with r 65.07, the applicants placed reliance on the supporting affidavit filed by them with the original summons where it was noted:
Counsel for the applicants have been instructed to prepare a proposed Notice of Appeal. The matter is complex and there is a significant volume of material to be reviewed in the course of the drawing and settling of the proposed notice of appeal. The proposed Notice of Appeal will be completed a soon as possible and exhibited to a further affidavit.
The applicants contend that this was sufficient to account for the absence of a copy of the proposed notice of appeal. They note that in any event, a copy of the proposed notice of appeal has since been filed.
In addition, by affidavit sworn 26 November 2010, the solicitor for the applicants deposed that:
In addition to the matters referred to in my affidavit of 1 November 2010 filed in support of the application for leave to appeal in this proceeding, I refer to the letter my firm wrote to Mallesons Stephen Jaques [the solicitor for the respondents] dated 10 November 2010…which describes the difficulties with the availability of Counsel who appeared at the hearing below and the health problems of George Edmund Morgan, one of my partners at McCracken & McCracken who had the main carriage of the matter before VCAT.
Analysis of Dismissal Application
This Court observed in relation to r 65.07 in A Team Diamond v Main Road Property Group[2] that the Rule:
… contemplate[es] the production of a proposed notice of appeal upon which the application for leave to appeal [is] to be determined. An application for leave rests upon the assumption that the draft notice of appeal represents the intended grounds of appeal and the orders which will be sought.
[2][2009] VSCA 208, [18]–[19].
No case has been cited in which non-compliance with r 65.07 has been considered.
In my opinion, non-compliance with r 65.07(c) does not mean that the application for leave to appeal is void
A non-compliance with r 65.07(c) is an irregularity which may subsequently be cured. The rule itself specifically contemplates one means by which a failure to comply with its requirements may be corrected by providing an affidavit which ‘accounts’ for the absence of any of the prescribed exhibits. However, this facility does not operate to exclude the discretion of the Court to address irregularities which may arise in the purported performance of its procedural obligations where the situation warrants the discretion being exercised.
Order 2 of the Court Rules provides ample power for this purpose. Rules 2.01 and 2.04 provide:
2.01. Effect of non-compliance
(1) A failure to comply with these Rules is an irregularity and does not render a proceeding or step taken, or any document, judgment or order therein a nullity.
(2)Subject to Rules 2.02 and 2.03, where there has been a failure to comply with these Rules, the Court may-
(a) set aside the proceeding, either wholly or in part;
(b)set aside any step taken in the proceeding, or any document, judgment or order therein;
(c)exercise its powers under these Rules to allow amendments and to make orders dealing with the proceeding generally.
2.04. Dispensing with compliance
(1)The Court may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises.
(2)Without limiting paragraph (1), the Registrar may dispense with compliance with any of the requirements of Order 64 or Order 65, either before or after the occasion for compliance arises.
However, it is unnecessary in my opinion for any order to be made in this case dispensing with compliance with r 67.07(c), even though, had the Court been called upon to do so, I would have made such an order in this case. In my opinion, the explanation provided in the affidavit of the applicants’ solicitor, Geoffrey Cox filed 1 November 2010 at paragraphs [5]–[6], in the context of a consideration of the judgment from which the appeal is proposed to be brought, and in the context of the number of complex issues raised for consideration by that judgment, adequately accounted for the absence of a notice of appeal or a proposed notice of appeal being exhibited to an affidavit in accordance with r 65.07(c).
Further, although the first respondent does have a clear interest in retaining the judgment of the Tribunal, it is not able to point to any prejudice suffered by not receiving the draft notice of appeal out of time. It now has a finalised proposed notice of appeal. On this basis alone, if the discretion was to be exercised under Order 2 of the Court Rules the interests of justice would not support the summary dismissal of the application for leave to appeal sought by the first respondent.
I would dismiss this application.
Application for a ‘Protective Costs Order’
The first respondent by its summons also sought a protective costs order.
This part of the application is appropriately dealt with at a later time when the application for leave to appeal is before the Court for consideration.
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