Chung v Leung - [2024] VSC 379

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
EMPLOYMENT AND INDUSTRIAL LIST

S ECI 2023 05811

BETWEEN:

(BILLY) SHU FUNG CHUNG	Applicant
v
(ZOEY) HOI YEE LEUNG	Respondent

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JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	4 June 2024
DATE OF RULING:	6 June 2024 (ex tempore, revised 1 July 2024)
CASE MAY BE CITED AS:	Chung v Leung
MEDIUM NEUTRAL CITATION:	[2024] VSC 379

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PRACTICE AND PROCEDURE – Application for summary dismissal – Rule 4.08 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic) – Whether notice of appeal identifies questions of law – Whether the applicant’s grounds of appeal are arguable– Application for an extension of time for leave to appeal from orders of the Victorian Civil and Administrative Tribunal (‘Tribunal’) – Section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) – Extension of time refused – Proceeding dismissed.

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APPEARANCES:	Counsel	Solicitors
The Applicant in person
For the Respondent	Mr M Latham of counsel	Anderson Gray Lawyers

TABLE OF CONTENTS

Material

Ms Leung’s application for summary dismissal

Applicable principles

Consideration of summary dismissal application

Question of law 1 and ground 1
Analysis – question of law 1 and ground 1
PLP (Legal Practice) v Michael McGarvie – Legal Services Commissioner & Anor [2014] VSCA 253 (‘PLP v McGarvie’)
Ha v Pharmacy Board of Victoria [2002] VSC 322 (‘Ha v Pharmacy Board’)
Coyne v P & O Ports [2000] VCAT 657 (‘Coyne’)
Australian Associated Press Article, 19 October 2023
Damages awarded in first judgment

Question of law 2 and ground 2
Analysis – question of law 2 and ground 2

Question of law 3 and ground 3
Analysis – question of law 3 and ground 3

Question of law 4 and ground 4
Analysis – question of law 4 and ground 4

Question of law 5 and ground 5
Analysis – question of law 5 and ground 5
Analysis – ground 6 and question of law 6

Extension of time application

Conclusion

HER HONOUR:

A Senior Member of the Victorian Civil and Administrative Tribunal (‘the Tribunal’) found that Billy Chung sexually harassed his co-worker Zoey Leung. I refer to the Tribunal’s reasons [2022] VCAT 216 (‘first Tribunal judgment’). The Tribunal ordered Mr Chung to pay damages of $10,000 to Ms Leung.
Ms Leung challenged the assessment of damages by way of an appeal to the Supreme Court of Victoria. She was successful on appeal. The Honourable Justice McDonald published his judgment on 10 February 2023 (‘appeal judgment’).[1] His Honour held that the Senior Member had erred in the assessment of compensation. Orders were made remitting the matter back to the Tribunal. The remittal was limited and did not include the findings of liability and causation.[2]
[1]Leung v Chung [2023] VSC 38 (‘appeal judgment’).
[2]Ibid [63].
The remitted matter was heard by another Senior Member of the Tribunal. On 26 October 2023, the Tribunal published its reasons (‘second Tribunal judgment’).[3] The Tribunal ordered Mr Chung to…

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.

Continue reading Chung v Leung

Details

AGLC: Chung v Leung [2024] VSC 379
Case: [2024] VSC 379
Decision Date: 6 June 2024 (ex tempore, revised 1 July 2024)

CaseChat Overview and Summary

In the case of Chung v Leung, the plaintiff sought to appeal against the dismissal of their application for summary dismissal. The proceedings originated from an application filed by the plaintiff under Rule 4.08 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic). The plaintiff's appeal was directed towards the orders of the Victorian Civil and Administrative Tribunal, which had dismissed their application. The primary legal issues before the court were whether the notice of appeal correctly identified questions of law and whether the grounds of appeal presented by the plaintiff were arguable.

The court examined the notice of appeal to determine if it appropriately identified the questions of law as required. The notice was scrutinised for clarity and precision in its identification of the legal issues. Additionally, the court assessed the arguability of the grounds of appeal. The court concluded that the notice of appeal did not sufficiently identify questions of law, and the grounds of appeal were not arguable. Furthermore, the plaintiff's application for an extension of time to appeal under Section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) was denied.

The court's reasoning was grounded in the statutory requirements for notices of appeal and the need for clarity in identifying questions of law. Given the deficiencies in the notice of appeal and the non-arguable nature of the grounds of appeal, the application for summary dismissal was dismissed. Consequently, the appeal was refused, and the proceedings were terminated.

Orders