Chung v Leung
[2024] VSC 379
•6 June 2024 (ex tempore, revised 1 July 2024)
| 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 pay Ms Leung $110,000 in general damages and $29,874.84 in special damages. I refer to the orders made on 26 October 2023 as corrected by orders made on 30 October 2023.
[3]Leung v Chung (Human Rights) [2023] VCAT 1193 (‘second Tribunal judgment’).
In this proceeding, Mr Chung seeks leave to appeal the 26 and 30 October 2023 orders per s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’). Mr Chung filed his appeal late.
Ms Leung seeks orders that the appeal be summarily dismissed or alternatively that the notice of appeal be struck out in whole or in part.
The ruling concerns the determination of Ms Leung’s application for summary dismissal and Mr Chung's application for an extension of time.
I record my reasons given ex tempore on 6 June 2024.
Material
Mr Chung relies on his affidavits sworn on 6 December 2023 (‘Chung first affidavit’) and 15 April 2024 (‘Chung second affidavit’).
Ms Leung relies on the affidavit of her solicitor, Leanne Tacey sworn on 5 March 2024 (‘Tacey affidavit’).
Both parties filed written submissions and made oral submissions at the hearing.
Ms Leung’s application for summary dismissal
xBy summons filed on 6 March 2024, Ms Leung seeks orders that the appeal be summarily dismissed, pursuant to r 4.08(8) of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic) (‘Miscellaneous Rules’). Alternatively, Ms Leung applies for the appellant’s notice of appeal to be struck out in whole or in part (‘summary dismissal application’).
Applicable principles
Section 148(1) of the VCAT Act permits parties to appeal to this Court ‘on a question of law from an order of the Tribunal’.
Section 148(2) of the VCAT Act states:
(2A)The Trial Division of the Supreme Court may grant an application for leave to appeal under this section only if it is satisfied that the appeal has a real prospect of success.
In McSteen v Architects Registration Board of Victoria[4], Maxwell P, Priest and McLeish JJA considered s 148 of the VCAT Act. I adopt the principles referred to within.[5]
[4][2018] VSCA 96.
[5]Ibid [31]-[34].
Rule 4.08 of the Miscellaneous Rules is applicable:
(8)The Court may dismiss the appeal or the application for an extension of time or for leave to appeal (as the case may be) if satisfied that—
(a)the notice of appeal does not identify sufficiently or at all a question of law on which the appeal or proposed appeal may be brought;
(b)the appellant or applicant does not or would not have an arguable case on appeal or to refuse leave would impose no substantial injustice; or
(c)the appeal or application is frivolous, vexatious or otherwise an abuse of the process of the Court.
Consideration of summary dismissal application
I have considered the parties’ written and oral submissions. I will now give my findings. Where necessary, I shall summarise their submissions.
Turning now to the first question of law and ground of the amended notice of appeal.
Question of law 1 and ground 1
Question of law 1 and its grounds are:
Whether the award of general damages was manifestly excessive object of penalty. VCAT order on 30/3/2022 by S.M Burdon-Smith rejected the applicant’s (Ms Zoey Leung) claim for damages. She sought in total the sum of $183,000, but only received an award of less than 10% of that, $10,000. However, On 26 Oct 2023 and 30 Oct 2023 VCAT these orders made by S.M Anita Smith $139,874.84 (Same case, after one year, it is 14 times more amount compare 30/3/2022 order) were manifestly excessive object of penalty.
This award is certainly much larger than the kinds of fines sometimes imposed by criminal courts for relatively serious criminal offending. The Tribunal’s failure to consider that matter as a significant omission.
Ms Leung says this ground does not raise a question of law.
Mr Chung says that the damages are manifestly excessive by reference to two comparators. First, they are 14 times greater than the damages awarded in the first judgment. Second, they are much greater when compared with other cases.
Analysis – question of law 1 and ground 1
As outlined already, appeals per s 148 may only be on a question of law from an order of the Tribunal. The question of whether a damages award is manifestly excessive is not a question of law.[6]
[6]Appeal judgment, [14]-[17].
Mr Chung says that the Tribunal’s failure to consider the kinds of fines sometimes imposed by criminal courts for serious criminal offending is a significant omission. Giving Mr Chung the benefit of the doubt, I read this as saying that the Tribunal failed to take into account a relevant consideration. I adopt the summary of principles on relevant considerations in the appeal judgment.[7] It is not mandatory to take into account criminal cases when assessing damages for contravention of the Equal Opportunity Act 2010. Even if it were, the cases cited by Mr Chung as comparators are distinguishable. I will refer to them now.
PLP (Legal Practice) v Michael McGarvie – Legal Services Commissioner & Anor [2014] VSCA 253 (‘PLP v McGarvie’)
[7]Appeal judgment [25].
This case concerned an application for leave to appeal from orders of the Tribunal regarding findings of misconduct. The misconduct related to the sexual harassment of a complainant (employee) by the applicant (employer).
In the first instance, the complainant filed an application alleging sexual harassment by the applicant. The Tribunal found that the applicant had engaged in sexual harassment of the complainant and made an order awarding $100,000 in favour of the complainant (‘the first proceeding’).
Following the findings in the first proceeding, the Legal Services Commissioner charged the applicant with professional misconduct. The Tribunal found these charges proven. In determining penalty, the Tribunal considered both general and specific deterrence to be particularly important, and ultimately cancelled the applicant’s practising certificate (‘the second proceeding’).
The applicant appealed the second proceeding on five grounds (although for present purposes, in his written submissions dated 15 April 2024, Mr Chung seems only to refer to ground 5 – errors of law in fixing penalty).
In respect of ground 5, the Court held that the Tribunal’s decision to cancel the applicant’s practising certificate in the second proceeding was manifestly excessive given the applicant had been ordered to pay $100,000 to the complainant in the first proceeding, with this penalty reflecting not only denunciation of the applicant’s conduct, but also specific and general deterrence.
PLP v McGarvie - relevance to current proceeding
Mr Chung’s reference to paragraph 70 of this case is out of context. The appeal in this case was successful as the relevant sentencing principles had already been addressed by the Tribunal imposing a penalty of $100,000 – with the further penalty of cancelling the applicant’s practising certificate found to be manifestly excessive.
Ha v Pharmacy Board of Victoria [2002] VSC 322 (‘Ha v Pharmacy Board’)
This case concerned an appeal by way of a re-hearing against a penalty imposed by the Pharmacy Board of Victoria (‘the Board’). The Board had found the appellant had committed misconduct as a result of three indecent assaults (which had been subject to criminal proceedings with the appellant fined $1,500 and placed on a Community Based Order).
In the first instance, the Board ordered that the appellant pay the costs of the Board’s inquiry and temporarily suspended his registration to practise, with conditions to follow once reinstated. There was no financial penalty.
On appeal, the Court held that the temporary suspension to the appellant’s registration to practice was inappropriate, thereby allowing the appeal.
The Court ultimately ordered that the appellant be fined $1,500 (noting the maximum fine was $2,500), that the appellant pay the costs of the Board’s inquiry and that his registration to practise have certain conditions.
Ha v Pharmacy Board – relevance to current proceeding
Mr Chung submitted that the damages ordered against him compare ‘unfavourably’ to the damages ordered in this case. However, in Ha v Pharmacy Board, the statutory framework was different. Section 18 of the Pharmacists Act 1974 provided that a financial penalty could not exceed 25 penalty units (at the time, being $2,500.)
Coyne v P & O Ports [2000] VCAT 657 (‘Coyne’)
In this case, the complainant alleged sexual harassment by the first respondent while employed by the second respondent.
The complainant and the first respondent entered into a Deed of Release for an undisclosed sum (known to the Tribunal, but not published), with the proceeding continuing solely against the second respondent.
The Tribunal found the second respondent to be vicariously liable for the sexual harassment of the complainant by the first respondent.
As to general damages: the complainant was diagnosed with Post Traumatic Stress Disorder as a result of the sexual harassment. The complainant claimed $35,000 for general damages and this amount was accepted by the Tribunal.
As to economic loss: the complainant submitted that she resigned from her employment as she was upset, was asked to transfer and felt she had been unfairly targeted by the second respondent for dismissal. The Tribunal was not satisfied that her resignation was a result of the sexual harassment, noting the complainant’s lack of evidence and submissions in this respect. No award for economic loss was allowed.
Coyne - relevance to current proceeding
Mr Chung referred to the general damages ($35,000) awarded against the second respondent. This amount was sought by the complainant (and accepted by the Tribunal). Furthermore, the $35,000 excluded the undisclosed sum paid to the complainant by the first respondent. The facts are distinguishable.
Australian Associated Press Article, 19 October 2023
Mr Chung referred to this news article in his second affidavit. It relates to the criminal conviction of Tim Mathieson, who was convicted of sexual assault and fined $7,000. The criminal proceeding bears no relevance to this current proceeding.
That ends my analysis of the cases upon which Mr Chung relies.
Damages awarded in first judgment
As to the damages awarded in the first judgment: it would have been wrong in law for the Tribunal to assess damages by reference to them after the matter was remitted. This is because the appeal judgment found that the first Tribunal judgment erred in ‘focusing on the objective seriousness of the contravening conduct, as distinct from the effect of the conduct’.[8]
[8]Appeal judgment, [26]-[34].
In conclusion, no question of law is identified. Moreover, ground 1 is not arguable. Rules 4.08(8)(a) and (b) are both applicable. Each provide a basis for dismissal of ground 1 of the appeal.
Question of law 2 and ground 2
Question of law 2 is whether the Member erred in rejecting his ‘order request and summon application the EML Workcover independent Dr Grant report’.
Ground 2 is:
The learned member erred in finding that to reject my order request and summon application. Ms Leung hide and cover up EML Workcover independent Dr Grant report saying her injury is not arise and caused from workplace. VCAT support applicant’s cover up.
The Grant report dated 21 February 2020 is contained in Exhibit ‘LT-1’ to the Tacey affidavit.
Ms Leung says that Mr Chung made an application to the Tribunal to compel the production of the Grant report generated in relation to her Workcover claim. The application is referred to in the Tribunal orders made on 21 April 2023.[9] These orders are not the subject of this appeal.
[9]Exhibit ‘LT-2’ to the affidavit of Leanne Tacey sworn 5 March 2024 (‘Tacey affidavit’), 11.
Ms Leung says that if Mr Chung is saying that the Tribunal failed to take into account the Grant report as a relevant consideration, then that is inarguable. The Grant report was not relevant to the Tribunal proceeding. The remittal was limited in scope per the appeal judgment.[10] Causation was dealt with and further medical material was limited to provide an update on Ms Leung’s medical condition.
[10]Appeal judgment, [63].
Ms Leung says too that, even if causation was an issue, the Grant report concludes that the workplace incident contributed to her injury. It therefore does not support the proposition that Mr Chung is trying to advance, namely that her injury was caused by something other than sexual harassment.
Mr Chung says the Grant report shows that Ms Leung’s husband had an alcohol problem and that she had a pre-existing mental illness. He refers to the extract in Dr Grant’s report:[11]
I do note a significant stressor with her husband apparently having an alcohol problem and recent loss of licence for the third time. I doubt that any treatment of a psychiatric or psychological nature will make any difference to her outcome.
[11]Exhibit ‘LT-1’ to the Tacey affidavit, 8.
Analysis – question of law 2 and ground 2
Mr Chung did not challenge the Tribunal orders made on 21 April 2023. Paragraph 1 of those orders recorded that no order was made in response to his request that Ms Leung be directed to file the Grant report. Moreover, that order records that Mr Chung had leave to include or make reference to the report. Paragraph 4 of the second Tribunal judgment records that on 10 August 2023, the Tribunal rejected Mr Chung’s request for inspection of a WorkCover report from 2020 because ‘it went to causation and liability issues which are not within the scope of the remittal’.
The Grant report is an independent psychiatric assessment of Ms Leung for the purpose of her Workers’ compensation claim. It falls outside the remit of the appeal judgment.[12] It addresses causation, namely the impact of the harassment on her. Consideration of the Grant report would have led the Tribunal into error.
[12]Appeal judgment, [63].
And, even if it was in the remit, Dr Grant opines that Ms Leung ‘has an adjustment disorder with anxious mood, specifically a phobic anxiety about this workplace where she alleges she was mistreated by her supervisor.’ He refers to her husband’s alcohol problem as a significant stressor but concludes ‘nonetheless I would consider the workplace matters to be significant and material contributing factor to her current adjustment disorder’. Dr Grant opines that he does not consider treatment of a psychiatric or psychological nature would make any difference to the outcome. He opines that she could not return to her pre-injury employment because of ‘her anxiety about that workplace and loss of trust in the workplace’ and finds she is fit for pre-injury duties and hours with a new or different employer.[13]
[13]Exhibit ‘LT-1’ to the Tacey affidavit, 8.
In conclusion, no question of law relevant to the orders Mr Chung seeks to appeal is identified. Moreover, ground 2 is not arguable. Rules 4.08(8)(a) and (b) of the Miscellaneous Rules are both applicable. Each provide a basis for dismissal of ground 2 of the appeal.
Question of law 3 and ground 3
Question of law 3 is ‘whether the learned member erred duty of care to fair judge both party voices and evidences’.
Ground 3 is:
3. Question of law 3,
VACT (sic) member didn’t ask a party or witness questions to get information about the issues which are central to the decision.
a)The learned member erred unbalance fairness for all parties. VCAT member only used Ms Leung one side voice and her lawyer twisted my factual evidences. One side could not make any of these observations.
b)VCAT didn’t investigate the real cause of Ms Leung mental damage. Ms Leung’s mental illness is pre-exist based on the fact of provided invoices. Ms Leung’s mental illness is caused by her struggling marriage relationship with her alcoholic husband, this is evidenced in several doctor’s report and Ms Leung approached me privately several time to complain about her alcoholic husband.
c)Ms Leung always took things negatively and didn’t get along well with many peoples including her doctors. She abandoned her 3 psychologists and changed to Sydney based psychiatrist using video meeting only purely in order to get medical report to claim large economic benefit amount against me. VCAT didn’t investigate why Ms Leung abandoned Dr Catherine Chan. VCAT didn’t investigate the reliability of Sydney doctor.
d)VCAT member ignored the true facts that Applicant claimed EML Workcover on 10/Feb/2020 was rejected. SECA’s investigator Anne Makin who was visited Gumboots office on-the-spot did the investigation. The interviewed include Company owner Mr Stephen Mures, Ms Sophie Mures who is company owner’s daughter and she was accessory Dept manger separately.
e)VCAT member ignored the true facts that Police involved to interview respondent, after the interview, they don’t consider this case of allegation is sexual harassment and made decision.
f)I sought that these allegation with general damages and special damages should be dismissed.
Mr Chung reiterated his assertions in the amended notice of appeal.
Ms Leung says it is difficult to understand what is being attacked, but it appears to be the same ground as the initial notice of appeal with a different heading. Fundamentally, he appears to challenge the findings of fact. Moreover, ground 3 attempts to challenge findings not subject to the orders consequential to the Tribunal’s second judgment but rather the findings of the first judgment. Paragraph (b) challenges the finding that his conduct caused Ms Leung’s injury. Paragraph (c) goes to causation, and paragraphs (d) and (e) lapse into an attack on credibility. Accordingly, no competent ground of appeal is disclosed.
Analysis – question of law 3 and ground 3
The Tribunal does not owe a duty of care to parties. Per s 97 of the VCAT Act, it is obliged to provide a fair hearing. Per s 98(1)(a) of that same Act, the Tribunal is bound by the rules of natural justice.
I have read the transcript of the proceeding as contained in the second Chung affidavit.[14] Evidently, both parties were allowed to make submissions. They were each heard. There is no foundation for the assertions in paragraph 3(a) of the amended notice of appeal. Paragraph 3(a) identifies no question of law, and is inarguable. I need not address the scandalous allegations.
[14]Exhibit ‘CB-4’ to the affidavit of Billy Chung sworn 15 April 2024 (‘second Chung affidavit’), 4-45.
Paragraph 3(f) is conclusionary and need not be further addressed.
Paragraphs 3 (b)-(f) concern factual findings. They are inarguable. As already explained, the findings of the first Tribunal judgment on liability and causation stand. That is, they were not disturbed on appeal. The second Tribunal judgment concerned the limited matters remitted consequential to the appeal judgment. These paragraphs improperly seek to challenge the findings in the first Tribunal judgment. The observations of the Senior Member in the second Tribunal judgment ring true for this proceeding too:[15]
In general, the respondent had difficulty in accepting or limiting his contribution to the scope of the remitted proceeding. This was evident from his written materials submitted prior to the hearing and his evidence, submissions and questions during the hearing. The respondent disagrees with the findings at both the VCAT and appellate level and expresses various grievances. He attempted to re-litigate the issues of liability and causation on numerous occasions.
[15]Second Tribunal judgment, [9].
Moreover, even if the factual findings were a consequence of the second Tribunal judgment (which they are not), it is a matter for the Tribunal as to how it weighs evidence. It is not a question of law as to how evidence is weighed.[16]
[16]See Tomasevic v Victoria [2005] VSC 402, [42]; Director of Public Transport v Wilkins [2009] VSC 506, [20].
As discussed above, the Senior Member did not allow Mr Chung’s request for inspection of a WorkCover report by orders made on 10 August 2023 because they concerned causation and liability issues which are outside the scope of remittal.[17] Clearly, any decision by the prosecuting authorities as to whether or not to prosecute is a matter outside the remittal as, even if it were relevant, it goes to liability. Further, the civil standard of proof is on the balance of probabilities. The criminal standard is beyond all reasonable doubt. This issue is not relevant.
[17]Second Tribunal judgment, [4].
In conclusion, no question of law is identified. Moreover, ground 3 is not arguable. Rules 4.08(8)(a) and (b) of the Miscellaneous Rules are both applicable. Each provide a basis for dismissal of ground 3 of the appeal.
Question of law 4 and ground 4
Question of law 4 is ‘was VCAT correct to decide special damages that the employee resigned by herself can rewards loss income and entitled to claim Jobkeeper since this position was redundant under Equal Opportunity Act 2010 (Vic) section 125(a)(ii)?’.
Ground 4 is:
Question of law 4,
a)The learned member erred to decide special damages in finding that Ms Leung resigned the job by herself because she didn’t have enough capacities to handle this job. After she resigned the job at 14/Jan/2020, Pavement employed a new Production coordinator (Jun) who started 24/Feb/2020 and this position was redundant at 19/March/2020.
b)Ms Leung’s role is redundant because no need this role anymore as no more new business during pandemic, and Pavement got Sophie, Billy and China based Rita to cover whole responsibility. 2nd even based on last in first out rule described Mr Latham and VCAT, Ms Leung is newest person in Gumboots because she only started on 19/8/2019 and worked there for 4 months. Mr Latham twisted the facts and mislead VCAT saying about the redundant girl is newest person that’s why she was redundant. If it was Ms Leung, she won’t be redundant. VCAT didn’t detect Mr Latham’s misleading.
c)As a 35 years old adult woman, she should be responsible for consequence what she has done for resigning the job. Regret resigning the job can’t entitle her to claim economic loss from other people. She should be bearing the result herself for what she did to herself. During the pandemic, everyone is not easy to find a new perfect job.
d)On 26-Mar-2020 Gumboots Head office and stores were closed temporary during Covid-19 Melbourne lock down, Staffs were stood down with no pay.
e)On 14 & 15 Apr-2020 Gumboots staffs backed to office and worked in warehouse (3-4 days fortnightly), received $1500 from Jobkeeper fortnightly.
f)On 8/Sep/2020, I worked at Gumboots last day. After that Gumboots was closed down.
g)VCAT member ignored these true facts.
h)I sought that that these special damages should be dismissed.
Mr Chung reiterates his appeal grounds. He says too that the resignation was not forced and so a core nexus is missing to establish loss of income. He relies on Coyne.
Ms Leung says that this ground challenges findings of fact. Moreover, to the extent it is being alleged that the Tribunal member ignored a relevant consideration, this is inarguable with reference to the first[18] and second[19] Tribunal judgments. Ms Leung refers also to the appeal judgment.[20]
[18]First Tribunal judgment, [90]-[92].
[19]Second Tribunal judgment, [19]-[23].
[20]Appeal judgment, [50], [53].
Analysis – question of law 4 and ground 4
It was open to the Tribunal to award special damages in the second Tribunal judgment. In respect of the first Tribunal judgment, in the appeal judgment, McDonald J explains:[21]
The Applicant is entitled to compensation for lost income if she establishes that the loss occurred in consequence of the Respondent’s contravening conduct. The Senior Member addressed the wrong question of whether the applicant was prevented from working at the Company. If the Applicant’s resignation was a genuine result of the Respondent’s contravening conduct the Applicant is entitled to be compensated for lost income, even though she was not prevented from continuing in employment. It is not necessary for the Applicant to establish that the Respondent’s contravening conduct was the sole cause of her loss of income. It is sufficient if the conduct was a cause of her ceasing to be an employee.
[21]Ibid [50].
In the appeal judgment, McDonald J states:[22]
Mr Latham submitted, without opposition, that the evidence before the Tribunal established that the Applicant’s loss of income between 14 January 2020 and 8 September 2020 was $29,250.04 less $1,750 earned from casual employment: $27,500.04. These figures assume that the Applicant would have received a Jobseeker allowance rather than her usual salary between 26 March 2020 and 8 September 2020. Putting to one side the Respondent’s evidence that the Applicant’s position was made redundant on 19 March 2020, it would be open to the Court to substitute an order for compensation for $27,500.04 in lieu of the order made by the Senior Member dismissing the Applicant’s claim for compensation for lost income.
[22]Ibid [51].
In respect of the first Tribunal judgment, in the appeal judgment, McDonald J made the following findings:[23]
The Senior Member’s order dismissing the claim for special damages will be set aside. The Applicant’s claim for special damages will be remitted to the Tribunal for rehearing. If the Tribunal is satisfied that the Applicant’s employment would have been terminated by reason of redundancy on 19 March 2020 the Applicant will be entitled to an award of compensation of $10,846.19 representing lost earnings between 14 January 2020 and 19 March 2020. If the Tribunal is satisfied that the Applicant’s employment would have continued until the company was placed in liquidation, the Applicant will be entitled to an award of compensation of $27,500.04.
[23]Appeal judgment , [53].
Accordingly, it was necessary for the Senior Member to make findings on special damages in the second Tribunal judgment. The Senior Member found that Ms Leung resigned because of Mr Chung’s conduct.[24] The Senior Member referred to Mr Chung’s submissions, but did not accept them. The Senior Member made factual findings that: [25]
If the unlawful conduct had not occurred, the applicant as a valued employee would have retained employment for the further nine days and then been transferred onto Jobkeeper payments.
[24]Second Tribunal judgment, [19].
[25]Ibid [23].
The Senior Member considered and rejected Mr Chung’s arguments about mitigation.[26]
[26]Ibid [24].
Mr Chung has referred to VCAT’s finding in Coyne, saying that Ms Leung did not have an entitlement to economic loss as there was no causal nexus between her resignation and the sexual harassment. He says that the Tribunal ignored this ‘true fact’ in considering special damages, and it was necessary to bear in mind the relevant circumstances.
Coyne does not assist Mr Chung. Firstly, it is distinguishable. Secondly, the question of causation was not part of the remit from the appeal judgment.
As will be recalled, the remit was limited. McDonald J held:[27]
The rehearing of the proceeding is not an opportunity for the Respondent to recontest the Senior Member’s findings at [48] to [76] of the reasons that the Respondent engaged in conduct in contravention of the EO Act. The further hearing should also be conducted on the basis that the evidence as set out at [81] to [93] regarding the psychological impact on the Applicant of the contravening conduct is not open to challenge.
[27]Appeal judgment, [63].
In conclusion, no question of law is identified. Moreover, ground 4 is not arguable. Rules 4.08(8)(a) and (b) of the Miscellaneous Rules are both applicable. Each provide a basis for dismissal of ground 4 of the appeal.
Question of law 5 and ground 5
Question of law 5 is ‘was VCAT correct to decide that the Member never questioned and investigated Ms Leung to submit her any extra income that COVID support payment from Government and family support payment from Centrelink benefits pursuant to Equal Opportunity Act 2010 (Vic) section 125(a)(ii)?’.
Ground 5 is:
Question of law 5.
a)The learned member erred in finding that Member never questioned and investigated the applicant to submit her any extra income that COVID support payment from Government and family support payment from Centrelink benefits.
b)On 21 April 2023, VCAT order by Senior Member A.Smith:
2 The respondent requires information from the applicant about
a)the income she received from various sources during the relevant period, and
b)discovery of the invoices for expenses noted in annexure ZL-18 of the applicant’s affidavit dated 5 November 2021.
c)Applicant didn’t submit that VCAT order requirements.
d) I sought that these allegation with special damages should be dismissed.
x Mr Chung reiterates his appeal grounds. He also says that if Ms Leung received any extra income from the government, then the Senior Member erred.
Ms Leung says it is not the function of the Tribunal to investigate. As to the orders made on 21 April 2023: the material was produced.[28] The orders were made on the papers without her submissions; she had already provided evidence concerning her loss of income. She provided further evidence about her appointment with a psychologist and the invoice for that of $170. This material formed part of the Tribunal’s findings on loss and damage.
[28]See: Exhibit ‘LT-3’ to the Tacey affidavit and, in particular, [28]-[32] of Ms Leung’s first witness statement regarding out of pocket expenses.
Analysis – question of law 5 and ground 5
As I have explained, the Tribunal is obliged to conduct a fair hearing. The Tribunal is not obliged to conduct an inquiry. Per s 98(1)(c), it may inform itself of any matter it sees fit. Per s 98(1)(d), the Tribunal:
must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit.
There was no obligation on the Tribunal to question and investigate in the manner Mr Chung asserts.
There was evidence before the Tribunal to assess special damages. How the Tribunal weighs the evidence before it is not a question of law. There was material before the Tribunal regarding Ms Leung’s loss of income, and medical expenses. Her witness statements are contained in Exhibit ‘LT-3’ to the Tacey affidavit. Ms Tacey deposes that the witness statements were tendered at trial.[29] Ms Leung’s first witness statement to the Tribunal dated 5 November 2021 contained a summary of her medical expenses.[30] This summary stated whether or not Medicare had paid an amount of the invoice, and her out of pocket expense. Contrary to what Mr Chung says, the itemised invoices were before the Tribunal.[31] Exhibit ‘ZLME-2’ to the third witness statement contains an additional invoice dated 4 June 2020 from her psychologist for $170.[32] The first witness statement contained evidence about loss of income.[33]
[29]Tacey affidavit, [5].
[30]Exhibit ‘LT-3’ to the Tacey affidavit, 89.
[31]Exhibit ‘LT-3’ to the Tacey affidavit, specifically exhibit ‘ZLME-1’ to Ms Leung’s third witness statement dated 31 May 2023.
[32]Exhibit ‘LT-3’ to the Tacey affidavit, 100.
[33]See: Exhibit ‘LT-3’ to the Tacey affidavit and, specifically, [28]-[32] of Ms Leung’s first witness statement and corresponding exhibits.
In conclusion, no question of law is identified. Moreover, ground 5 is not arguable. Rules 4.08(8)(a) and (b) of the Miscellaneous Rules are both applicable. Each provide a basis for dismissal of ground 5 of the appeal.
Question of law 6.
a)The learned member erred an entitled to special damages for out-of- pocket counselling expenses in finding that Ms Leung can lodge claim to Medicare herself. Medicare consultant told me claim to Medicare never expire, difference is recent invoice is easier to claim either via App or online, over 2 years old invoice can be claimed either visiting a service centre or by mail, but always claimable if legitimate.
b)Ms Leung forgot to claim one invoice to Medicare herself. She didn’t take full responsibility herself, but blame me and claimed full amount against me. Ms Leung didn’t take proper and appropriate action to claim through official legitimate entitlement herself, but she likes to take hurtful and difficult legal procedure to claim against me. Ms Leung likes to always blame other person – me in this event, for her own mistake and oversight.
c)VCAT did not investigate that Ms Leung didn’t state whether her doctor claim Medicare on site for her or she lodge Medicare claim by herself. If doctor lodge the claim, doctor will give her Statement of claim & benefit, sample as shown on web. Ms Leung didn’t provide these docs. No matter doctor claim or Ms Leung self-claim, Ms Leung always can print out Medicare claim history from MyGov account.
d)VCAT did not investigate that Ms Leung didn’t provide any explanation that Dr Catherine Chan-Kwa invoices clearly marked Medicare: Full Fee under Mental health care plan, this should be bulk billed. Ms Leung should not pay out of pocket fee.
e)VCAT member ignored these true facts.
f) I sought that these special damages should be dismissed.
Mr Chung reiterates his appeal grounds. He highlighted that he and Ms Leung never discussed ‘any sex topic’, and had a good relationship at work until the last day when she complained of sexual harassment. Mr Chung says he is innocent. He says that he worked for the company for ten years and never engaged in any bad behaviour. On the other hand, he says that there is bad behaviour from Ms Leung driven by her no-win, no-fee lawyers, who tried to enforce the damages award. He says that he cannot find any case similar to this where the law was used to cheat the facts and obtain compensation.
Ms Leung says this ground cannot be an error of law. It could only be an error of fact. It states that the Senior Member ignored “true facts”.[34]
[34]Amended notice of appeal filed 27 March 2024, [6(e)].
Ms Leung refers to the appeal judgment.[35] She says that if Mr Chung is suggesting that the Tribunal failed to take into account his submissions regarding Medicare expenses, this is incorrect.[36] The Senior Member accepted Ms Leung’s explanations.
[35]Appeal judgment, [53]-[54].
[36]Second Tribunal judgment, [26]-[28].
Analysis – ground 6 and question of law 6
In the appeal judgment, McDonald J held that: [37]
the question of the Applicant’s entitlement to special damages is to be remitted to the Tribunal, absent good reason to the contrary, the Applicant should be permitted to pursue a claim for out-of-pocket medical expenses as part of her claim for special damages.
[37]Appeal judgment, [55].
The Senior Member considered Mr Chung’s assertions regarding the invoices addressed to Ms Leung, their payment and Medicare.[38] The Senior Member made a factual finding, accepting Ms Leung’s evidence.[39] The Senior Member concluded that therefore the amount of special damages for out of pocket counselling was $624.80.[40]
[38]Second Tribunal judgment, [27].
[39]Ibid [28].
[40]Ibid [29].
This ground is another instance of Mr Chung challenging factual findings.
In conclusion, -no question of law is identified. Moreover, ground 6 is not arguable. Rules 4.08(8)(a) and (b) are both applicable. Each provide a basis for dismissal of ground 6 of the appeal.
Extension of time application
There is a 28-day time limit to appeal the Tribunal orders.[41] Mr Chung filed his notice of appeal about one week late, on 4 December 2023. The Court can extend time per s 148(5) of the VCAT Act. By his amended notice of appeal, he seeks an extension of time to bring his appeal (the ‘extension of time application’).
[41]VCAT Act s 148(2)(a); Miscellaneous Rules r 4.04.
The following principle of the Court of Appeal in Huang v Frankston City Council is applicable:[42]
The question of whether the applicant should be granted the extension of time he seeks falls to be determined by reference to the length of the applicant’s delay, his explanation for the delay, whether the delay has occasioned any other party to suffer prejudice, and the merits of the applicant’s proposed appeal.
[42][2024] VSCA 38, [53].
The delay of about one week is relatively short and does not prejudice Ms Leung.
Mr Chung has explained his delay by reference to being overseas, and not having time to file his appeal. He says that on his return, he attempted to file on time but without paying a fee, and so the filing was rejected. As Ms Leung says, there was no evidence to suggest he did not have email access during this time. There was no evidence to support this explanation and I do not accept it.
Even if I accepted Mr Chung’s explanation for the delay, it would be futile to grant the extension of time. I have held that Mr Chung’s amended notice of appeal does not identify any issue or question of law upon which he might establish the Tribunal erred, and his case is inarguable. Rules 4.08(8)(a) and (b) are applicable. Accordingly, I refuse to grant the extension of time.
Conclusion
The proceeding must be dismissed. No questions of law are identified. The grounds are inarguable and accordingly have no real prospect of success. There is no utility in providing Mr Chung with an opportunity to submit a further amended notice of appeal. Orders for dismissal rather than strike out are appropriate. This is not a circumstance where a notice of appeal is curable by amendment.
Finally, the stay orders in paragraph 2 of my orders made on 12 March 2024 expire now that I have given my determination. Given the proceeding will be dismissed, it is unnecessary to hear any further stay submissions.
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