Dirckze v Holmesglen Institute - [2017] VSC 18

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2015 03995

GRAHAM DIRCKZE	Appellant
v
HOLMESGLEN INSTITUTE	Respondent

---

JUDGE:	RIORDAN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 JANUARY 2017
DATE OF JUDGMENT:	31 JANUARY 2017 (ex tempore)
CASE MAY BE CITED AS:	Dirckze v Holmesglen Institute
MEDIUM NEUTRAL CITATION:	[2017] VSC 18

---

PRACTICE AND PROCEDURE – Appeal from Associate Justice dismissed after Appellant failed to appear on the hearing date – Application to reinstate appeal – Application for adjournment by email – Applicant/Appellant refused to appear to apply for adjournment prior to hearing date of application for reinstatement – No appearance by Applicant/Appellant on the hearing of the reinstatement application – Duty of the Court to self-represented litigants – Communications with the Court with respect to controversial matters by email – Application to reinstate dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	No appearance	—
For the Respondent	Mr A D Clements QC with Ms R V Howe	Minter Ellison

HIS HONOUR:

By notice of appeal filed 5 August 2016, the appellant appeals against a decision of Derham AsJ made on 15 July 2016 pursuant to s 17(3) of the Supreme Court Act 1986 and r 77.06 of the Supreme Court (General Civil Procedure) Rules 2015.

Background

Between 25 January 2013 and 29 May 2014, the appellant was enrolled for a Diploma of Nursing course at the Moorabbin campus of the respondent. On the latter date, he was expelled from the course; and the expulsion was confirmed by the Student Disciplinary Appeals Tribunal on 30 July 2014.

On 22 October 2014, the appellant filed an application in the Victorian Civil and Administrative Tribunal (‘the Tribunal’) alleging that he had been discriminated against by the respondent in respect of education and the provision of services based on his age, employment activity, industrial activity, physical features, race, sex and presumed disability. On 9 January 2015, he filed particulars of his claims and on 20 April 2015, he filed further claims.

The hearing proceeded before the Tribunal on 18 and 19 May 2015. On 10 July 2015, the Tribunal Member found that one of the allegations of discrimination on the basis of race was proven; and the Tribunal ordered the respondent to pay the appellant the sum of $3,000 within 30 days. The Tribunal found the other allegations of contraventions of the Equal Opportunity Act 2010 were not proven and dismissed the claims.

By originating motion filed 3 August 2015, the appellant sought leave to appeal from the Tribunal decision on a question of law pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998. The appellant’s affidavit in support sworn 29 July 2015 exhibited a draft notice of appeal.

On 20 August 2015, the matter came on for a directions hearing before Derham AsJ. The appellant was self-represented and the respondent was represented by its solicitor. His Honour made procedural orders and fixed…

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 Dirckze v Holmesglen Institute

Details

AGLC: Dirckze v Holmesglen Institute [2017] VSC 18
Case: [2017] VSC 18
Decision Date: 31 JANUARY 2017 (ex tempore)

CaseChat Overview and Summary

The matter before the court was an appeal brought by the appellant, Dirckze, against a decision made by Holmesglen Institute. The appellant sought to appeal a decision made by the Institute, but the appeal was dismissed due to the appellant's failure to appear on the hearing date. The appellant subsequently applied to reinstate the appeal and for an adjournment, but this application was also dismissed. The court was required to decide whether the appellant's application to reinstate the appeal should be granted and whether an adjournment should be granted.

The court found that the appellant had not fulfilled their obligations as a self-represented litigant, including their duty to appear in person to apply for an adjournment prior to the hearing date of the reinstatement application. The court also found that the appellant had refused to appear on the hearing of the reinstatement application. The court emphasised the importance of the duty owed by self-represented litigants to the court and noted that communications with the court regarding controversial matters should be made in person or through a legal representative, rather than by email. The court found that the appellant's application to reinstate the appeal should be dismissed.

The court dismissed the appellant's application to reinstate the appeal and denied the application for an adjournment. The court found that the appellant had not fulfilled their obligations as a self-represented litigant and had failed to appear on the hearing of the reinstatement application. The court also found that the appellant had communicated with the court regarding controversial matters by email, which was not an appropriate means of communication. The court emphasised the importance of the duty owed by self-represented litigants to the court and found that the appellant's application to reinstate the appeal should be dismissed.

Orders