Dirckze v Holmesglen Institute
[2016] VSC 385
•15 July 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2015 03995
| GRAHAM DIRCKZE | Plaintiff |
| v | |
| HOLMESGLEN INSTITUTE | Defendant |
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JUDGE: | Derham AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 November 2015 (written submission completed on 8 December 2015) |
DATE OF JUDGMENT: | 15 July 2016 |
CASE MAY BE CITED AS: | Dirckze v Holmesglen Institute |
MEDIUM NEUTRAL CITATION: | [2016] VSC 385 |
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JUDICIAL REVIEW AND APPEALS – Application for leave to appeal from VCAT under Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148 – Whether question of law – Whether real or significant argument that Tribunal was in error – No errors of law – Leave refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person with Mr M Gronow (appearing under Victorian Bar Duty Barrister Scheme) | |
| For the Defendant | Mr A Clements QC with Ms R Howe | Minter Ellison |
TABLE OF CONTENTS
Introduction......................................................................................................................................... 2
Background Facts............................................................................................................................... 2
VCAT proceeding......................................................................................................................... 2
Supreme Court proceeding......................................................................................................... 4
Applicable law.................................................................................................................................... 4
Self-Represented Litigant............................................................................................................ 4
Leave to Appeal............................................................................................................................ 5
Affidavits............................................................................................................................................. 7
Submissions........................................................................................................................................ 9
The Hearing....................................................................................................................................... 10
Consideration.................................................................................................................................... 12
Ground (a): whether it was an error of natural justice for the Member to prefer the unsworn statement of Ms Gec, without providing reasons or opportunity for plaintiff to cross examine 12
Ground (b): whether the Tribunal erred in rejecting balance of plaintiff’s claims after finding racial discrimination proven...................................................................................................... 21
Ground (c): whether the Tribunal erred in law in not providing adequate reasons as to why the plaintiff’s evidence was not accepted over Ms Brown’s regarding the ‘monkey’ comment 23
Ground (d): whether the plaintiff was denied procedural fairness by the Tribunal in failing to consider discrimination on basis of presumed disability........................................... 25
Ground (e): whether the Tribunal fell into an error of law in concluding that plaintiff’s complaints did not fall within EO Act........................................................................................................ 26
Other Grounds Advanced by Plaintiff Personally.................................................................... 27
Bias. 27
Inconsistent findings................................................................................................................... 28
Factual findings not open.......................................................................................................... 29
Conclusion......................................................................................................................................... 31
HIS HONOUR:
Introduction
On 10 July 2015, Member A Dea of the Victorian Civil and Administrative Tribunal (‘VCAT’ or ‘Tribunal’) made orders that discrimination on the basis of race was proven under s 125(a)(ii) Equal Opportunity Act 2010 (‘the EO Act’) due to comments made comparing Graham Dirckze (‘the plaintiff’) to a monkey by a Holmesglen staff member, but all other claims under the EO Act were not proven and were dismissed.
The plaintiff seeks leave to appeal the Member’s final order dismissing the balance of the claims pursuant to s 148 Victorian Civil and Administrative Tribunal Act 1998 (‘the VCAT Act’). The principles applicable are well known and set out below.
I conclude that there is no real or significant argument that the Tribunal fell into error in dismissing the complaints made by the plaintiff. I further find that if I am wrong in my conclusion that there is no real or significant argument to be put that error exists, then I consider that to refuse leave would impose no substantial injustice on the plaintiff.
Background Facts
VCAT proceeding
On 25 January 2013, the plaintiff enrolled in a Diploma of Nursing at the Moorabbin campus of Holmesglen Institute (‘the defendant’). Over a 10 month period, the plaintiff made various complaints concerning Holmesglen and its staff. He was suspended and subsequently expelled. He appealed the expulsion and on 30 July 2014 the expulsion was confirmed by the Student Discipline Appeals Committee.
Following his expulsion, the plaintiff applied to the Tribunal alleging that the defendant contravened the EO Act. He alleged discrimination on the basis of his age,[1] physical features,[2] presumed disability,[3] race[4] and sex.[5] He also alleged sexual harassment,[6] victimisation[7] and retaliatory action taken by the defendant as a result of his complaints.[8] Additionally, the plaintiff asserted unfair treatment in the provision of education services and academic results.[9]
[1]VCAT Particulars of Claim filed 9 January 2015 (‘Particulars of Claim’), para 2(i).
[2]Particulars of Claim, para 2(ii).
[3]Particulars of Claim, para 5(iv); Response to Respondent’s file denying the facts dated 20 February 2016, p 4; Additional Information dated 20 April 2016 (‘Additional Information’), para 1.
[4]Particulars of Claim, para 2(iii); Additional Information, para 3.
[5]Particulars of Claim, para 2(iv).
[6]Particulars of Claim, para 3.
[7]Particulars of Claim, paras 2(ii) and 5.
[8]Particulars of Claim, para 5.
[9]Particulars of Claim (i) pg 1, (v) pg 2, (vi) and (vii) pg 3, para 2(iii), para 5(i) and (iii); ss 38 and 44 EO Act; see also Reasons [27]-[33].
The hearing took place before Member A Dea on 18 and 19 May 2015 at VCAT in Melbourne. The plaintiff was self-represented. Holmesglen was represented by its solicitor, Mr Brendan Murray.
The plaintiff successfully established discrimination on the basis of race as he had surreptitiously recorded his teacher saying that ‘a monkey can stand up and do this and do this’.[10] The Member found that although this was a reasonably commonplace way of explaining the capacity to undertake repetitive skills,[11] this was nevertheless derogatory and humiliating for someone that identifies with a particular race or ethnicity.[12] The Member arrived at the figure of $3,000.00 in damages for pain and suffering.[13] No other complaints were found to have been established and were dismissed.
[10]Dirckze v Holmesglen Institute [2015] VCAT 1116 (‘Reasons’) at [155] and [156].
[11]Reasons [159].
[12]Reasons [160].
[13]Reasons [162]–[164].
On 10 July 2015, the Member ordered that:
‘1.Under `ss.125(a)(ii) of the Equal Opportunity Act 2010 (Vic) (EO Act), the Tribunal finds the claim of discrimination on the basis of race in circumstances where Mr Dirckze was compared to a monkey proven and a breach of Part 4 of the EO Act. The Tribunal orders that Holmesglen Institute pay Mr Dirckze the sum of $3,000.00 within 30 days.
2.Under s.125(c)(ii) (sic) of the EO Act, the Tribunal finds all other claims are not proven and so there has been no contravention of Part 4, 6 or 7 of the EO Act. Accordingly, the Tribunal orders that all other claims are dismissed.’
Supreme Court proceeding
On 3 August 2015, the plaintiff sought leave to appeal the Member’s final orders generally. It later emerged at the hearing on 25 November 2015, by which time the plaintiff had obtained pro bono legal assistance and representation, that he only sought leave to appeal the second paragraph of the orders dismissing the balance of the claims under s 125(c) of the EO Act. At the hearing, a further draft Notice of Appeal settled by Counsel was proffered. The plaintiff’s originating motion sought that the Tribunal’s orders be set aside and for the matter to be remitted to the Tribunal (differently constituted) for further consideration.[14]
[14]Originating Motion filed 3 August 2015.
Applicable law
Self-Represented Litigant
A judge has a duty in relation to represented and unrepresented litigants alike to ensure that a hearing or trial is conducted fairly and in accordance with law.[15] It is a frequent consequence of self-representation that the Court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy.[16] What a judge must do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant’s intelligence and understanding of the case.[17] The judge cannot be the advocate of the self-represented litigant, for the role of the judge is fundamentally different to that of an advocate. The judge must maintain the reality and appearance of judicial neutrality at all times and to all parties. The assistance must be proportionate in the circumstances — it must ensure a fair trial and not afford an advantage to the self-represented litigant.[18]
[15]MacPherson v The Queen (1981) 147 CLR 512, 523; Dietrich v R (1992) 177 CLR 292; Werden v Legal Services Board (2012) 36 VR 637 [53].
[16]Neil v Nott (1994) 68 ALJR 509, 510; 121 ALR 148, 150; Minogue v HREOC (1999) 84 FCR 438 [27]-[29] and [33]; Platcher v Joseph [2004] FCAFC 68 [104].
[17]Abram v Bank of New Zealand (1996) ATPR 42340, 42347; Minogue v HREOC (1999) 84 FCR 438 [27]-[29] and [33]; Platcher v Joseph [2004] FCAFC 68 [104]; Tomasevic v Travaglini (2007) 17 VR 100, 130.
[18]Tomasevic v Travaglini (2007) 17 VR 100, 130 per Bell J.
In Rajski v Scitec Corporation Pty Ltd[19] Justice of Appeal Samuels said:
In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent … At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement … An unrepresented party is as much subject to the rules any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.
[19]Unreported, Court of Appeal, NSW, Full Court, No CA 146 of 1986, (16 June 1986), 14; cited with approval in Downes & Anor v Maxwell Richard Rhys & Co Pty Ltd (in liq) [2014] VSCA 193; (2014) 46 VR 283 at [23].
The application of these principles in this case has been alleviated by the appearance of Counsel for the plaintiff, as I have mentioned, pro bono. Nevertheless, in hearing and determining the application for leave to appeal in this case I have been conscious of the fact that the plaintiff was unrepresented in the Tribunal and has himself selected the material to present to the Court.
Leave to Appeal
The procedure for applying for leave to appeal under s 148 of the VCAT Act is regulated in part by Order 4 of Chapter II of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008. Rule 4.09(1) confers discretion on the Associate Judge and, without limiting that discretion, empowers refusal of leave if the Associate Judge is satisfied that the applicant does not have a prima facie case on appeal or that to refuse leave would impose no substantial injustice.
The approach to the question whether or not leave should be granted under s 148(1) of the VCAT Act was set out comprehensively in the decision of the Court of Appeal in Secretary to Department of Premier and Cabinet v Hulls.[20] That approach was conveniently summarised by Warren CJ in Myers v Medical Practitioners’ Board of Victoria.[21] That summary is as follows:
[20][1999] 3 VR 331.
[21](2007) 18 VR 48 at [28] (‘Myers’).
(a)Whether leave is granted or not must always depend upon the justice of the particular case;
(b)if leave is to be granted, the applicant must at least identify a question of law (as distinct from a question of fact) which is important to the substantive appeal's succeeding or failing;
(c)the applicant need not establish an error below - that is for the appeal itself. Rather, the applicant will be required to show that there is a real or significant argument to be put that error exists;
(d)although not essential, the applicant may identify a question of law that is of general or public importance. This will weigh in favour of granting leave;
(e)once a question of law has been identified which bears directly upon the relief which will be sought in the appeal, and once it has been shown that there is sufficient doubt attending that question to justify the grant of leave to appeal, leave will ordinarily be granted if the order below is a final order or final in its effect; and
(f)where the order sought to be appealed is an interim order, there may be reason bearing on the justice done to both parties for not granting leave to appeal, for example, where granting leave to appeal will result in an unnecessary interruption to the substantive proceedings.
Warren CJ also pointed out in Myers that the guidelines laid out are not hard and fast rules,[22] and set out a part of the following passage from the reasons of Phillips JA in Hulls:[23]
There is an obvious danger in seeking to summarise the considerations which bear upon the granting of leave to appeal. Ultimately what must govern is the justice of the case as it appears to the Court from which leave to appeal is sought, and that means justice to all parties, not just the applicant. As I said at the outset it is not appropriate for us to do any more than lay down guidelines and any guidelines will sometimes be found inadequate; but with that rider, the foregoing might be summarised along the following lines: When leave is sought to appeal under s 148, it will be necessary for the applicant to identify a question of law which is relevant to the granting of the relief sought on appeal. The importance of the question, either generally or to the would-be appellant in a particular case, will probably be relevant. The applicant must show that there is a real or significant argument to be put on that question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave. Moreover, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice, although, where the order below is final, that injustice will often be more readily discernible. [emphasis added]
[22](2007) 18 VR 48 at [29].
[23][1999] 3 VR 331, 337 (‘Hulls’).
An appeal pursuant to s 148(1) of the VCAT Act, being confined to one involving a question of law, is of narrower ambit than an appeal from the trial division of this Court, or the County Court, to the Court of Appeal. As Kaye J (as he then was) said in Drossos & Makarios v Marvel Homes Pty Ltd:[24]
The appeal is not by right, but rather, as I stated, by leave. On an application for leave, the applicant must identify a question of law (as distinct from a question of fact) which is important to the success of the appeal, if leave be granted. On an application for leave, the applicant need not establish error by the Tribunal, but, rather, that there is a real or significant argument to be put that such an error exists.[25]
[24][2014] VSC 384 [27].
[25]Secretary to the Department of Premier & Cabinet v Hulls [1999] 3 VR 331, 335 (Phillips JA); Myers v Medical Practitioners Board of Victoria [2007] VSCA 163 [30]-[32] (Warren CJ).
The question whether the Tribunal has arrived at a conclusion on a question of fact which was not open on the evidence before it is a question of law.[26] A finding of fact that was not open to the Tribunal will only constitute an error of law if the erroneous finding of fact was critical to the ultimate conclusion of the Tribunal in relation to the matter before it.[27] As a result, impugning a finding of fact on the basis that it gives rise to an error of law as a ground of review is only narrowly available.[28]
[26]S v Crimes CompensationTribunal [1998] 1 VR 83 at 89-90; Myers at [35].
[27]Ibid at 90; He v Aloe & Co Pty Ltd (No 3) [2010] VSCA 158 [25].
[28]Myers at [37].
Affidavits
The plaintiff’s Originating Motion was initially supported by an affidavit sworn on 29 July 2015 that exhibited a draft Notice of Appeal setting out the purported questions of law the subject of appeal,[29] each with several sub-paragraphs. It is a long and rambling document that includes complaints rather than questions of law. The complaints are of pre-judgment and bias by the Tribunal Member, the making of inconsistent findings and findings not supported by the facts (that is, conclusions not reasonably open on the facts). There are about 19 alleged instances of the latter category.
[29]Affidavit of Graham Dirckze filed 3 August 2016, para 18, Exhibit GD3.
On 20 August 2015, there was a directions hearing where directions were made as to the filing and service of supplementary affidavits, the obtaining and production of the transcript of the hearing in the Tribunal and concise outlines of submission. The defendant indicated at that time that it resisted the grant of leave to appeal and that this was a case where leave should be refused.
In accordance with the directions of the Court, the plaintiff filed a further affidavit sworn on 7 October 2015. That affidavit is a mixture of evidence, assertion and submission. In essence, the affidavit seeks to rebut the Member’s reasons, point by point, and identifies which factual findings the plaintiff disputes. The plaintiff’s grievances raised in his affidavit can be grouped into the same three groups mentioned above. In greater detail they are:
(a) that the Member fell into an error in law in neglecting to consider the circumstances that existed between the parties. He says that the Member prejudged the case from the outset, and that this rendered the hearing unfair.[30] The plaintiff alleges that the Member made presumptions, took sides, ignored other facts surrounding the case[31] and was misleading in her reasons.[32] He submits that the Member ‘displayed hostility’ at the hearing, and at one point told him to ‘hurry up’ as he was searching for documents in his bag.[33] He adds that the member did not read his submission material properly;[34]
(b) that the Tribunal arrived at inconsistent findings and findings that were not open to it. He says that this occurred by preferring other witness’ evidence[35] over his own,[36] relying on comments made by staff in relation to his presumed mental health disability,[37] and assertions as to his sensitivity;[38] and
(c) that the Tribunal failed to consider certain facts. This includes audio recordings whereby Holmesglen’s staff confirm corruption within the institution, and a lack of consideration of how Holmesglen forced students to re-sit exams and pay for them on each occasion.[39]
[30]Further Affidavit in Support of Application filed by Graham Dirckze on 7 October 2016 (‘Further Affidavit’), para 2.
[31]Further Affidavit, para 41.
[32]Further Affidavit, para 20.
[33]Further Affidavit, para 5. My search of the electronic transcript of the hearing on 18 and 19 May reveals no such matter.
[34]Further Affidavit, para 56.
[35]Further Affidavit, para 18.
[36]Further Affidavit, para 16.
[37]Further Affidavit, para 48.
[38]Further Affidavit, para 63.
[39]Further Affidavit, paras 59-60.
The defendant relied upon the affidavit of its solicitor Mr Brendan John Murray sworn on 11 November 2015. It gave an account of the course of the proceedings in the Tribunal and exhibited the orders of the Tribunal, the plaintiff’s Particulars of Claim (there was an initial set of Particulars of Claim dated 9 January 2015 and a response dated 19 February 2015 to Holmesglen’s Response), the defendant’s Response to Claims, and other relevant documents. Importantly, the orders of the Tribunal required:
(a) witness statements for any witness intended to be called;
(b) the exchange of all material to be relied upon; and
(c) a restriction upon calling any other witness or going beyond the evidence in the witness statements without the leave of the Tribunal.
The defendant’s affidavit includes correspondence between the parties regarding the witnesses to be called by Holmesglen and the provision of their witness statements. The defendant required all the witnesses for cross-examination and, additionally, sought the Chief Executive Officer of Holmesglen, Ms Mary Faraone, to attend and be cross-examined. He was told that Holmesglen did not intend calling Ms Faraone as a witness.
Submissions
On 8 October 2015, the plaintiff filed an Outline of Submissions in support of his application for leave to appeal. This outline largely reflected and was indeed mostly a repeat of the draft Notice of Appeal which,[40] as mentioned below, was mostly overtaken by the plaintiff obtaining assistance and his Counsel presenting a further draft Notice of Appeal at the hearing.
[40]Exhibit GD-3 to the plaintiff’s affidavit of 29 July 2015.
On 12 November 2015, the defendant filed submissions setting out the principles applicable to applications for leave to appeal under s 148 of the VCAT Act. The defendant submit that none of the grounds of appeal articulated by the plaintiff raised a real or significant argument that the Tribunal erred in law, and that the leave to appeal should not be granted.[41]
[41]Outline of Respondent’s Submissions filed 12 November 2015, para 3, 4 and 12 (‘Respondent’s Outline’).
In response to the plaintiff’s affidavit of 7 October 2016, the defendant submitted that the plaintiff made no complaint at the hearing of actual bias or apprehended bias and the transcript does not disclose any impatience or irritation on the part of the Member.[42]
[42]Respondent’s Outline, para 13-19.
The defendant contended that the Tribunal did not arrive at inconsistent findings, and even if it had, the plaintiff has not identified any evidence or matter that makes it arguable that it was not open to the Tribunal to come to the findings that it made.[43]
[43]Respondent’s Outline, para 20-22.
The defendant also submit that the plaintiff has failed to identify with any specificity what factual findings the Tribunal came to that were not open to it, and that no legal error in the Tribunal’s findings has been made out.[44] The defendant concludes that this Court cannot be satisfied that there is a real or significant argument that the Tribunal made an error of law, and that leave to appeal must be refused.[45]
[44]Respondent’s Outline, para 23-42.
[45]Respondent’s Outline, para 43.
The Hearing
The application for leave to appeal came on for hearing on 25 November 2015. Mr Michael Gronow of Counsel, appeared for the plaintiff pro bono under the Duty Barrister Scheme. Mr Andrew Clements QC appeared for Holmesglen with Ms Rebecca Howe of Counsel. It was agreed that the parties would only proceed on submissions relating to the application for leave to appeal.
Mr Gronow provided a further draft Notice of Appeal which identified five questions of law and grounds of appeal and addressed argument in relation to each. I identify and discuss these grounds below. Before Mr Gronow withdrew, he indicated that the plaintiff wished to add to the grounds he had identified. The plaintiff then referred to his affidavits and submissions and requested that I consider them as a part of the application for leave to appeal in addition to the grounds identified by Mr Gronow.
The five questions of law identified by Mr Gronow and which he claimed arose out of the decision of the Tribunal, were as follows:
(a) whether it was open to the Tribunal as a matter of law and in compliance with the Tribunal’s obligation to afford the plaintiff natural justice under s 98(1)(a) of the VCAT Act for the Tribunal to disbelieve the sworn evidence of the plaintiff concerning the November 2013 clinical placement incident[46] in favour of an unsworn written statement of Ms Gec, (a Holmesglen staff member) who was neither called to give evidence nor cross‑examined;
[46]Reasons at [58]-[62]; [141]-[145].
(b) whether it was open to the Tribunal as a matter of law to reject the balance of the plaintiff’s complaints on the basis of racial discrimination contrary to ss 6, 38, 44 and other provisions of the EO Act when the Tribunal found that Holmesglen had discriminated against him on the basis of his race by permitting or having its staff refer to him as a ‘monkey’ on or about 19 November 2013;[47]
[47]Reasons at [152]-[164].
(c) whether it was open to the Tribunal as a matter of law to reject the plaintiff’s evidence in favour of that of Ms Brown[48] in circumstances where the Tribunal found that Ms Brown had in fact referred to him as a ‘monkey’ on 19 November 2013[49] despite having denied on oath having done so;
(d) whether the Tribunal should have considered whether Holmesglen’s expulsion of the plaintiff from its Diploma of Nursing course was due to unlawful discrimination against him on the basis of his mental health contrary to ss 6, 8, 38, 45 and other provisions of the EO Act; and
(e) whether it was open to the Tribunal as a matter of law to conclude that the plaintiff’s other complaints did not come within ss 6, 8, 38, 45 and other provisions of the EO Act and that his complaints leading to his victimisation by the Holmesglen did not come within s 104(1)(g) and (2) of the EO Act.[50]
[48]Reasons at [102]-[117], [152]-[164].
[49]Reasons at [152]-[164].
[50]Reasons at [34]-[74].
The grounds of appeal reflected the questions of law said to arise. Orders were made at the hearing giving directions to file short submissions concerning the new questions of law and grounds of appeal. I have addressed both the plaintiff and defendant’s submissions on these grounds under the relevant headings below.
Consideration
Ground (a): whether it was an error of natural justice for the Member to prefer the unsworn statement of Ms Gec, without providing reasons or opportunity for plaintiff to cross examine[51]
[51]Further Draft Notice of Appeal, para 4(a) and 5(a); Reasons [58]-[62] and [141]-[145].
On 8 December 2015, the plaintiff filed written submissions, contending that the Tribunal erred in law and denied him natural justice in rejecting his sworn evidence, instead preferring the unsworn statement of Ms Gec regarding his expulsion, without providing reasons or an opportunity for the plaintiff to test this evidence through cross examination.[52] It was submitted:[53]
A Court or Tribunal that is obliged to afford natural justice should not reject the sworn evidence of a party in the absence of compelling evidence to the contrary without giving cogent reasons for having done so.[54] The Tribunal could only properly find that it preferred Ms Gec’s incident report to the applicant’s sworn account once Ms Gec had been either cross‑examined on her report or at least made available for cross‑examination. A failure to afford either of those things, and a failure to give proper reasons for rejecting the plaintiff’s sworn account was something that it was not open to the Tribunal as a matter of law to do in the present circumstances.
While the plaintiff accepts that it was not inappropriate of the Tribunal to receive Ms Gec’s incident report into evidence,[55] the Tribunal should not have made use of the report as it did to contradict and negate the sworn evidence of the plaintiff, in the absence of Ms Gec also being called and cross-examined. It is at least possible that, had the plaintiff’s alternative version of events[56] been put to Ms Gec, she would have altered or qualified what she said in her incident report, or alternatively that the Tribunal might have preferred the plaintiff’s account of the incident to Ms Gec’s. That is sufficient to make it a denial of procedural fairness and natural justice in breach of s 97 and 98(1)(a) of the VCAT Act for the Tribunal to accept the ‘incident report’ into evidence without requiring or at least offering cross‑examination of Ms Gec.
It is clear that the Tribunal considered its view of the applicant’s behaviour during the incident at the November 2013 placement (as taken from Ms Gec’s report) to be an important part of its reasons for rejecting most of the applicant’s claims of discrimination.[57] That denial of natural justice was thus an error of law that had a substantial effect on the outcome of the proceeding below, such as to justify leave to appeal under s 148 of the VCAT Act.
[52]Appellant’s Response to the Respondent’s Supplementary Written Submissions in relation to Proposed Grounds of Appeal 5(a) to (e) (dated 8 December 2015) (‘Plaintiff’s Submissions’), para 1-4.
[53]Plaintiff’s Submissions at [2], [3] and [4].
[54]Hunter v Transport Accident Commission [2005] VSCA 1 [1]-[2] (per Batt JA); [21]-[37] (per Nettle JA); see also Hennes v Hobsons Bay City Council [2012] VSCA 215 [11]-[17].
[55]Respondent’s Supplementary Written Submissions in Relation to Proposed Grounds of Appeal 5(a) to (e) dated 1 December 2015, (‘Defendant’s Submissions’) para 5.
[56]See Reasons at [58]-[61].
[57]Reasons at [141]-[144].
The defendant addressed the grounds of appeal by its written submissions and maintained that it is not an arguable error of law that the Tribunal found that the contents of Ms Gec’s incident report were accurate. Even if there was a breach of natural justice (which is denied) in the Tribunal accepting Ms Gec’s incident report, such a breach could have no bearing on the outcome of the case because it is inevitable that the incident report would have been received by the Tribunal.
In her Reasons, the Member dealt with the evidence of the plaintiff generally in this way:
In assessing Mr Dirckze’s evidence, I have taken into account the fact that he has represented himself throughout the proceeding and at the hearing. That is always a difficult task and apt to cause litigants to experience stress and, at times, to mean that they might not present their case as effectively as they might like. However, even taking these matters into account, I am not inclined to give a great deal of weight to many of the allegations made by Mr Dirckze and the evidence he gave when it conflicted with that of the other witnesses. As will become apparent from these reasons, Mr Dirckze’s interpretation of events is often unusual and predicated on assumptions and inferences which cannot reasonably be drawn from the evidence.
The circumstances giving rise to the complaint, which had a dual character as involving both victimisation and discrimination leading to his expulsion, were concisely related by the Member in the victimisation section of her Reasons as follows:[58]
In November 2013, Mr Dirckze was required to attend a clinical placement for a subject concerning mental health at an aged care facility. Mr Dirckze left the placement after two and a half days following an incident with the facilitator, Ms Sandra Gec. He lodged a grievance about the matter and Ms Gec completed an incident form.
The grievance[59] said Ms Gec was abusive and rude in her communications with him. It said that Ms Gec tried to harm him by breaching health and safety requirements. Mr Dirckze said Ms Gec abused him when she tried to make him wash a resident on his own instead of with the help of another person. In an accompanying email, Mr Dirckze complained that Ms Gec tried to have him take a blood glucose reading without gloves and raised concerns about infection control.
Ms Gec’s incident report[60] explained that on 27 November 2013, she, Mr Dirckze and another student were reviewing various insulin dependent residents in the facility. The students were asked to carry out blood glucose assessments. Ms Gec said that Mr Dirckze consistently had trouble understanding information and following directions. He appeared to be nervous and agitated and was sweating profusely, including onto the medication chart. Similar observations were made about Mr Dirckze’s presentation and behaviour the day before, in the context of washing a resident. When about to commence attending to a resident, Mr Dirckze became very agitated, he raised his voice and appeared to Ms Gec to be aggressive. He complained he was being bullied. Ms Gec asked if they could discuss the matter quietly outside, he refused and walked away. Mr Dirckze was reported to have then collected his belongings and left the facility.
At the hearing, Mr Dirckze was asked about these events. His evidence was that the problems with the placement concerned the manner in which he was being asked to undertake tasks and associated health and safety requirements. He said Ms Gec yelled at him. He denied he was aggressive. When asked why he thought Ms Gec would bully him, Mr Dirckze said he did not know why but referred to the complaint about Ms Gilder. He seemed to suggest some connection between Ms Gec and Ms Gilder.
The above material does not reveal any complaint about discrimination in relation to Ms Gec’s dealings with him at the placement or any other breach of the EO Act. There is no complaint of the kind referred to in section 104 of the EO Act in Mr Dirckze’s email.
[58]Reasons at [58]-[62].
[59]Exhibit MK3 to Ms Kerr’s witness statement dated 24 March 2015.
[60]Exhibit MK2 to Ms Kerr’s witness statement.
Later in her Reasons, when dealing with the discrimination allegations leading to the plaintiff’s expulsion, the Member said:[61]
I have considered the report written by Ms Gec about the mental health placement. I have also considered Mr Dirckze’s own evidence about those events and that of Ms Koutoukidis and Ms Kerr, as they met with Mr Dirckze around the time of the placement and discussed it with him.
As I understand it, Mr Dirckze disputes Ms Gec’s account of events and instead says she was abusive towards him and sought to have him engage in unsafe health care practices. I consider it more probable than not that the significant aspects of Ms Gec’s contemporaneous report are accurate.
There is no dispute that Mr Dirckze walked out of the placement without allowing time for discussion. This fact tends to indicate that, whatever problems he may have had with how the placement was being conducted, he was unwilling to adapt or find a solution. Ms Stilo’s view of his inadequate skills when administering injections and Mr Dirckze’s assessment that he would have scored 95%, support a conclusion that there is a disconnect between Mr Dirckze’s demonstrable skills and capabilities and Mr Dirckze’s opinion of those. The evidence about the various meetings held with Mr Dirckze indicate that, at the time, he had little capacity to manage conflict, different views or problems. All of these matters raise a question about how such a student would manage a placement which calls for interactions with vulnerable patients in challenging circumstances.
Taking all of these matters together, I find that it is more probable than not the decision as to suitability for clinical placements was not based on a presumption that Mr Dirckze had a disability but rather on the experience and assessment of Ms Koutoukidis who was aware of Mr Dirckze’s performance to date and the requirements of the diploma and nursing practice. The Committee clearly accepted her opinion and adopted it in making its decision.
While I understand that Mr Dirckze was personally offended by the content of Ms English’s memo, he has not proven that it or any presumption as to a disability or any other protected attribute was the cause of his expulsion. Accordingly, this claim of discrimination will be dismissed.
[61]Reasons [141]-[145].
The context of these remarks need to be explained. The plaintiff’s expulsion from Holmesglen was preceded by a memorandum dated 26 May 2014 from Ms English to the Acting Executive Officer regarding a meeting between the plaintiff and Ms English (with a Ms Harari as observer) on 23 May 2014. The plaintiff had complained that in the meeting Ms English acted in an inappropriate way using threatening and intimidating behaviour and engaged in verbal abuse.[62] The plaintiff alleged that Ms English told him he could not do the planned mental health placement and that he left the meeting because of her conduct, threatening attitude towards him and refusal to let him sit the required exams. He said she refused him permission to do his mental health placement because he ‘sweats like a monkey’. On hearing all of this, he said there was no point in continuing with the meeting and he got up and left.[63]
[62]Reasons [103].
[63]Reasons [104].
Ms English’s evidence was that a deferred assessment request had been denied and so the plaintiff would have to repeat units, but that he could still attend the re-scheduled mental health placement and attempted to ascertain his readiness to undertake that placement. She denied the sweating comment. She said the plaintiff became abusive saying that both she and Ms Kerr needed mental health assessments and that she could ‘stick it up [her] arse’ and left the room swearing.
After the meeting, Ms English prepared a memorandum in which she noted that the plaintiff appeared ‘very agitated’ and was ‘sweating profusely and his speech pattern was very rapid’. She said they had discussed a number of topics including his pending clinical placement at Monash Mental Health, recent allegations he had made against staff and his pending failure of one of the theoretical components of the course. The memo then said:
Graham has made allegations of harassment by staff about which I attempted to obtain further details. Graham refused to provide details and instead stated that he would take this to a higher authority. His conversation was rambling and some of his comments did not appear rational.
When challenged on his poor attendance he claimed that he indeed had been attending and that staff were lying about this.
When I informed [him] about his pending failure in the theoretical component he became angry. He stated that Margaret Kerr and myself needed to have a ‘mental health assessment’. He then stood up and using intimidating body language, and in a threatening tone, told me I could ‘stick it up my arse’. He then abruptly left the office swearing.
I am concerned for this student’s mental health, he appears to be mentally unwell and unstable at this point in time. I am also concerned for the safety of my staff and have a ‘duty of care’ not to allow him to have contact with patients.
His behaviour in my office was the culmination of a pattern of behaviour and I do not support him continuing in the program. Graham does not appear to have any understanding or awareness of his behaviour and its impact on those around him. I do not believe that he would be compliant in seeking medical assistance. I believe he is a potential risk to others.
I am requesting that he be expelled from the Diploma of Nursing program. I would be pleased to discuss further.
There are several elements to this ground of proposed appeal, and they have been conflated in the submissions, as follows:
(a) first, that it is a breach of the rules of procedural fairness or natural justice to reject the sworn evidence of a witness/party in the absence of compelling evidence to the contrary;
(b) second, that there are no cogent reasons expressed by the Member for doing so; and
(c) third, that the Tribunal should not have made use of Ms Gec’s report to contradict and/or negate the sworn evidence of the plaintiff, in the absence of Ms Gec also being called and cross-examined.
In his submissions, Mr Gronow relied on the authority of Hunter v Transport Accident Commission,[64] which is primarily concerned with the adequacy of the reasons of the primary judge for the findings he made. The reasons of Nettle JA, with whom Batt and Vincent JJA agreed, express quite compendiously the general requirements to be observed in giving reasons for decision, noting that the requirements depend on the circumstances of the case:[65]
… while the extent of the reasons will depend upon the circumstances of the case, the reasons should deal with the substantial points which have been raised; include findings on material questions of fact; refer to the evidence or other material upon which those finding are based; and provide an intelligible explanation of the process of reasoning that has led the judge from the evidence to the findings and from the findings to the ultimate conclusion.[66] It should also be understood that the requirement to refer to the evidence is not limited to the evidence that has been accepted and acted upon. If a party has relied on evidence or material which the judge has rejected, the judge should refer to that evidence or material and, in giving reasons which deal with the substantial points that have been raised, explain why that evidence or material has been rejected. There may be exceptions. But, ordinarily, where a judge rejects or excludes from consideration evidence or other material which is relevant and cogent, it is simply not possible to give fair and sensible reasons for the decision without adverting to and assigning reasons for the rejection or exclusion of that material. Similarly, while it is not incumbent upon the judge to deal with every argument and issue that might arise in the course of a case[67], where an argument is substantial or an issue is significant, it is necessary to refer to and assign reasons for the rejection of the argument or the resolution of the issue.[68] Above all the judge should bear steadily in mind that reasons are not intelligible if they leave the reader to wonder which of a number of possible routes has been taken to the conclusion expressed. Failure to expose the path of reasoning is an error of law.[69]
[64][2005] VSCA 1 [21]-[37] (per Nettle JA).
[65]Ibid.
[66]Cropp v TAC [1998] 3 VR 357 at 376, per Charles, JA; Giannakopoulos v Melwire Pty Ltd and MMI Workers’ Compensation (Victoria) Ltd [2000] VSCA 153 [23] et seq., per Tadgell, JA; Dodoro v Knighting [2004] VSCA 217 [39], per Buchanan, JA, and at [45] and at [58], per Eames, JA, in diss.
[67]Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at 463 [62].
[68]Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 18.
[69]Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279-280 and 282, per McHugh, J; Fletcher Constructions Australia Ltd v Lines Macfarlane & Marshall Pty Ltd (2001) 4 V.R. 28 at 35 [18], per Chernov JA.
Procedural fairness in the context of the hearing in the Tribunal involves the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the case at hand.[70] As the Court of Appeal has recently noted in Downes & Anor v Maxwell Richard Rhys & Co Pty Ltd (in liq),[71]
The requirements of procedural fairness are inherently flexible and must respond to the circumstances of the particular case.[72] It follows that the need to explain evidentiary rules and principles to a party in a particular case will depend upon the nature of that case and the course of the hearing.
[70]Kioa v West (1985) 159 CLR 550, 584 (Mason J), 594.
[71][2014] VSCA 193; (2014) 46 VR 283 at [27] per Osborn JA, Whelan and Beach JJA agreeing..
[72]Kioa v West (1985) 159 CLR 550, 584 (Mason J), 594 (Wilson J), 612-5 (Brennan J), 633 (Deane J).
In my view, there has been no breach of the rules of procedural fairness.[73] The learned Member’s Reasons[74] and the evidence adduced by the plaintiff and Holmesglen show:
[73]I use his expression as interchangeable with ‘natural justice‘, as do the authors of Aronson & Groves, Judicial Review of Administrative Action, 5th Ed, [7.10] footnote 1.
[74]Which go far beyond the extracts to which I have referred.
(a) in advance of the hearing, directions were made for the filing of witness statements. These were complied with, and the witness statement of Ms Margaret Kerr[75] gave evidence of the report from Ms Gec and produced the report as an exhibit to her witness statement;
[75]Exhibit BJM-9 to the affidavit of Brendan John Murray sworn 11 November 2015 (‘Murray Affidavit’). Margaret Kerr was Head of the Department of Health Science and Biotechnology in the Faculty of Health Science and Community Studies, Holmesglen.
(b) the witness statements were provided to the plaintiff well in advance of the commencement of the hearing on 18 May 2015.[76] There was no objection by the plaintiff to Holmesglen relying on the Report at any time;
[76]On 30 March 2015 – Murray Affidavit [6].
(c) before the hearing, there was an exchange of emails between the plaintiff and Holmesglen’s solicitor regarding the plaintiff’s desire to call Ms Faraone, the CEO of Holmesglen. There was no mention of an interest in requiring the attendance of Ms Gec to give evidence and be cross-examined;
(d) VCAT is not bound by the rules of evidence and may inform itself on any matter as it sees fit;[77]
[77]VCAT Act s 98.
(e) at the commencement of the hearing, the Member asked the parties if there were any preliminary matters they wished to raise, and the plaintiff raised his desire to summons the CEO of Holmesglen, Ms Faraone, to give evidence. There was a debate about this and, because it was tolerably clear that she was in no way involved in any the matters the subject of complaint, the Member refused, at least at the outset, to authorise a summons for her to attend. The Member said that if the evidence showed that Ms Faraone was involved in some way this would be investigated and the Tribunal may require that the CEO attend. There was no mention of any requirement to require the attendance of Ms Gec, notwithstanding that Holmesglen proposed the introduction in evidence of Ms Gec’s report as an exhibit to the witness statement of Ms Kerr;
(f) the plaintiff was cross-examined on the Report made by Ms Gec. He maintained that in general, it was fabricated. The passages in the Report that were descriptive of the plaintiff’s behaviour at the clinical placement were put to the plaintiff for his response.[78] There was no request by the plaintiff to call Ms Gec to give evidence nor any mention of the plaintiff having any interest in cross-examining Ms Gec. His desire to call Ms Faraone demonstrated the plaintiff’s understanding that he could seek to have Ms Gec called to give evidence and be cross-examined;
[78]VCAT Transcript, 18 May 2015, p. 53-55.
(g) the Member made a general assessment of the plaintiff’s allegations and evidence after hearing all the evidence, and after making allowances for the fact that he represented himself. The Member was not inclined to give a great deal of weight to many of the allegations made by the plaintiff and the evidence he gave when it conflicted with that of the other witnesses, noting that his interpretation of events was often unusual and predicated on assumptions and inferences which cannot reasonably be drawn from the evidence;
(h) it is clear from the Reasons that the Member did not rely solely on the untested report of Ms Gec in reaching the conclusion she did, as is apparent from the extract from the Reasons above at paragraph 36; and
(i) there is no suggestion that Ms Gec was required for cross-examination. My examination of the transcript at the Tribunal hearing reveals no application for Ms Gec’s report to be excluded or for Ms Gec to be called to give evidence and be cross-examined. There was, on the other hand, considerable cross examination of other witnesses about the incident involving Ms Gec which gave rise to her report, including of Ms Gabrielle Koutoukidis.[79]
[79]Head of Strategic and Business Development in the Faculty of Health Science and Community Studies at Holmesglen. See VCAT Transcript, 19 May 2015, p. 193-207.
In these circumstances, I do not consider that the Tribunal has denied the plaintiff procedural fairness by preferring the evidence contained in the report by Ms Gec, far from it. In all the circumstances to which the Member refers, including the evidence from the plaintiff regarding the incident, it was inherently likely to be a better version of the events to which it related than the evidence of the plaintiff. It was contemporaneous, clearly expressed, internally consistent and also consistent with the behaviour of the plaintiff elsewhere referred to.
It is clear to me from a review of the evidence and the transcript, combined with the history of the proceeding that there is no denial of procedural fairness to the plaintiff. I am of the view that the learned Member afforded assistance to the plaintiff that was proportionate in the circumstances.
Further, the plaintiff did not seek to argue in the Tribunal that there should be no reliance on, or no weight given to, the Report where the plaintiffs evidence was to the contrary without him having the opportunity to cross-examine Ms Gec. As the issue was not raised in any way in the hearing before the Member, when it could have been, it is not available as a ground of appeal in this Court.[80]
[80]Dura (Australia) Constructions Pty Ltd v Victorian Managed Insurance Authority [2012] VSC 114 [71]; Domburg v Nurses Board of Victoria [2000] VSC 369 [48].
Even if the plaintiff had properly made that submission to the Tribunal, and it was rejected, having regard to the reasoning of the Tribunal, it could not lead to a real or significant argument that the Member fell into error.
Ground (b): whether the Tribunal erred in rejecting balance of plaintiff’s claims after finding racial discrimination proven[81]
[81]Further Draft Notice of Appeal, para 4(b) and 5(b); Reasons [152]-[164]
The plaintiff argues that because the defendant was found to have contravened the EO Act by using the word ‘monkey,’ the Tribunal was bound to accept the balance of the plaintiff’s complaints of racial discrimination. The Member failed to provide clear reasons for rejecting these claims.[82] Mr Gronow submitted:[83]
The Tribunal found that Ms Brown as an employee of the defendant used the word ‘monkey’ in the presence of the applicant in a meeting on 19 November 2013; the Tribunal also found that the reference to the word ‘monkey’ in the presence of the applicant was a reference which the applicant found deeply offensive.[84] Under the [EO Act] the Tribunal rightly found the respondent as employer responsible for Ms Brown’s actions. On the one occasion when the relevant conversation or incident was recorded, the applicant’s version, rather than the sworn evidence to the contrary led by the respondent, turned out to be the true version of events. In those circumstances, the Tribunal should not have rejected the balance of the applicant’s complaints without providing clear and cogent reasons for having done so.
[82]Defendant’s Submissions dated 1 December 2015 (‘Defendant’s Submissions’), at [5].
[83]Plaintiff’s Submissions dated 8 December 2015 (‘Plaintiff’s Submissions’) at [5].
[84]Reasons [16], [155]-[156].
The defendant points out that the question of law incorrectly asserts that the Tribunal made a finding that the defendant had discriminated against the plaintiff by ‘having or permitting its staff to refer to [the plaintiff] as a monkey on 19 November 2013’. Clearly, that was not the finding.
The defendant submits that the fact that the Tribunal found that the use of the word ‘monkey’ contravened the EO Act does not mean that the Tribunal was bound to accept all of the plaintiff’s other complaints. The defendant says that this does not properly disclose a ground of appeal in law but rather an attack on the Tribunal’s findings of fact.[85]
[85]Respondent’s Outline, para 6-11.
It self-evidently does not follow that by the plaintiff successfully establishing one complaint of racial discrimination, where there was conflicting testimony and his testimony was accepted, that the other complaints of discrimination which involve conflicting testimony should also be accepted as proven. I agree with the defendant that it was open for the Tribunal to reject the balance of the plaintiff’s complaints. I share the defendant’s view that the plaintiff has failed to disclose an arguable error of law. I reject the plaintiff’s contention that the Member did not provide ‘clear and cogent reasons’[86] for dismissing the balance of the claims, quite the contrary, I found the Member’s reasons substantially detailed and persuasive.
Ground (c): whether the Tribunal erred in law in not providing adequate reasons as to why the plaintiff’s evidence was not accepted over Ms Brown’s regarding the ‘monkey’ comment[87]
[86]Appellant’s Outline, para 5.
[87]Further Draft Notice of Appeal, para 4(c) and 5(c). Reasons [102]-[117], [152]-[164].
The plaintiff argues that the Tribunal fell into an error of law in failing to provide adequate reasons for rejecting his evidence over that of his teacher, Ms Brown. The plaintiff concedes that it was open to the Tribunal to accept and reject parts of Ms Brown’s evidence but it should have provided reasons. The plaintiff drew particular attention to the fact that Ms Brown stated on oath that she could not recall ever making any derogatory ‘monkey’ comments, which was subsequently found to be untrue. In the absence of such reasons, the Tribunal rejecting the plaintiff’s evidence on these points was an error of law.[88]
[88]Appellant’s Outline, para 6.
The defendant alleges that it is unclear which specific finding the plaintiff seeks to attack under this ground of appeal. The defendant says that it was open to the Tribunal to prefer the evidence of one person over another[89] and reiterates that the plaintiff is attacking the Member’s factual findings rather than pointing to an error of law.
[89]Respondent’s Outline, para 11-14.
It is unclear from this question of law what specific findings are referred to. There is a footnote to the question identifying paragraphs [102]-[117] and [152]-[164] of the Reasons. But those paragraphs do not express any findings rejecting the plaintiff’s evidence in favour of Ms Brown.
It seems to me that the main criticism that the plaintiff makes of the Reasons concerns the fact that he is disgruntled with her acceptance of Ms Brown’s assertion that she never made a racially motivated ‘monkey’ comment, which he maintains that he disproved with an audio recording. In my view, the reasoning of the learned Member is perfectly acceptable and I agree with the submissions of the defendant in this respect that the plaintiff has failed to establish that the Tribunal fell into an error of law in preferring Ms Brown’s evidence over the plaintiffs. As I have indicated above, although the plaintiff established one ground of racial discrimination, it cannot follow that this serves to establish all or any other complaints against Holmesglen.
It may be that this question mistakenly refers to the rejection of the finding that Ms English said to the plaintiff that he was always ‘sweating like a monkey’ and that was why she would not allow him to undertake the mental health placement.[90]
[90]Reasons [112].
The reasons why the Tribunal rejected this complaint are clear, concise and complete. They reveal the findings on material questions of fact, refer to the evidence or other material upon which those finding are based, and provide an intelligible explanation of the process of reasoning that has led the Member from the evidence to the findings and from the findings to the ultimate conclusion. In my opinion, no complaint can be made of the reasoning of the Tribunal in relation to this finding.[91]
[91]See particularly Reasons [102]-[117].
Another option is that the plaintiff is seeking to attack the finding of the Tribunal at paragraph [173] of the Reasons. That finding was that the Tribunal was not satisfied that Ms Kerr yawned throughout the meeting (on 29 November 2013) or that yawning of itself can amount to sexual harassment as defined, which was in part based on Ms Brown’s evidence. The reasoning of the Tribunal shows the findings of fact and the path of reasoning to be adequate, in my view.[92] It also reveals the importance of the Tribunal Member having seen and heard the totality of the evidence of the plaintiff and the witnesses for Holmesglen. The conclusions the Tribunal has reached, when read closely, demonstrate how many aspects of the evidence interlace. For example, when rejecting the plaintiffs complaint of sexual harassment based primarily on the facial expressions made by Ms Kerr during a meeting in November 2013 or early in 2014. The Tribunal concluded:
Taking into account the unusual way Mr Dirckze interprets otherwise innocent conduct and the evidence of Mr Brown, I do not accept Mr Dirckze’s evidence about Ms Kerr licking her lips. Given the lateness with which the matter was raised, I regard the allegation that Mr Kerr touched him on the bottom to be an invention. The claim of sexual harassment will be dismissed.
Ground (d): whether the plaintiff was denied procedural fairness by the Tribunal in failing to consider discrimination on basis of presumed disability[93]
[92]Reasons at [169]-[173].
[93]Exhibit GD3, Draft Notice of Appeal, para 4(d) and 5(d).
The plaintiff submits that he was discriminated against within the meaning of the EO Act because he was prevented from completing essential course requirements while he awaited a mental health assessment:[94]
The Tribunal’s consideration of the expulsion of the plaintiff by the defendant [from] the Diploma of Nursing course was in the context of the Tribunal considering the defendant’s explanation for its conduct, and not what should have been the substantive issues, namely whether the plaintiff was prevented from completing essential course requirements such as attending classes while awaiting a mental health assessment[95] and was unlawfully discriminated against on the basis of his mental health contrary to ss 6, 8, 38, 44 and other provisions of the EO Act, and whether s 104 of the EO Act could apply. In those circumstances, it cannot with respect be said that the Tribunal properly considered whether the applicant was unlawfully discriminated against on the basis of the perceived ‘attribute’ of him having mental health problems (when, as the medical evidence showed, he did not[96]). Particularly with a litigant in person,[97] this failure constituted a denial of procedural fairness and an appealable error of law.
[94]Appellant’s Outline, para 7.
[95]Reasons [85].
[96]Reasons [85]–[96].
[97]Seachange Management v Bevnol Constructions [2008] VCAT 1479 [58]–[59] (Judge Ross AP).
The defendant submit that no arguable error of law is disclosed because the Tribunal did consider whether the plaintiff’s expulsion was a result of discrimination against him on the basis of presumed disability in relation to mental health.[98] The Tribunal’s Reasons show that it did consider whether the plaintiff’s expulsion from the course was due to unlawful discrimination against him on the basis of a presumed disability in relation to mental health.[99]
[98]Respondent’s Outline, para 15.
[99]Reasons [123], [124] and [134]–[145].
I do not agree with the plaintiff that he was denied procedural fairness by the Tribunal. In her reasons, the Member details how the plaintiff’s teachers were of the view that he had a mental health illness for which he was unlikely to seek attention. The Member concluded that it was not this presumed disability that precipitated the plaintiff’s expulsion.[100]
[100]Reasons [134], [135] and [145].
The submission of the plaintiff confuses the Tribunal’s consideration of the circumstances in which the plaintiff was required to undertake a mental health assessment in order to continue with the course with the considerations leading to his expulsion. They are two quite different and discrete matters.
Ground (e): whether the Tribunal fell into an error of law in concluding that plaintiff’s complaints did not fall within EO Act[101]
[101]Further Draft Notice of Appeal, para 4(e) and 5(e); Reasons [34]–[74].
The plaintiff alleges that the Tribunal fell into an error of law as it misapplied the EO Act. The plaintiff says that in considering whether his complaints fell within s 104(1)(g) of the EO Act, the Tribunal was obliged to apply that provision in light of the broader definition contained in s 104(2) of the EO Act.[102]
[102]Appellant’s Outline, para 8.
The defendant says that the plaintiff has not pointed to any evidence that makes it arguable that the Tribunal could not conclude that none of the complaints the plaintiff made were the kind of complaints referred to in s 104 EO Act and as such, this ground discloses no arguable error of law.[103]
[103]Respondent’s Outline, para 16-21.
Whether a particular complaint, or the circumstances revealed by the complaint, fall within a statutory description is a finding on a question of fact.[104]
[104]S v Crimes CompensationTribunal [1998] 1 VR 83 at 89.
In order to establish an error of law, the plaintiff must show that it was not open to the Tribunal to make the findings that it did in this regard. He has not done so. He has not pointed to any evidence or matter which makes it arguable that it was not open to the Tribunal to conclude that none of the complaints made from time to time fell within s 104 of the EO Act even taking into account the extended meaning established by s 104(2).
Other Grounds Advanced by Plaintiff Personally
As I have mentioned, there were three broad areas of complaint originally included in the plaintiff’s draft Notice of Appeal and submissions. I will deal with these under the general headings of bias, inconsistent findings by the Tribunal, and factual findings not open to the Tribunal. This involves some overlap with the 5 questions of law referred to above.
Bias
The plaintiff complains that the Tribunal prejudged the case and did not bring an impartial mind to its consideration of the evidence. It appears from the original draft Notice of Appeal that the complaint included both actual and ostensible bias.
There is nothing revealed in the transcript of the hearing or in the Tribunal’s Reasons which provides any support for the allegations of prejudgment or of actual or ostensible bias. As the defendant submitted, a reasonable apprehension of bias by reason of prejudgment does not arise from a mere lack of nicety but must be firmly established.[105]
[105]R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553; R v Lusink (1980) 32 ALR 47 at 50-1.
The plaintiff asserts that the learned Member displayed impatience and irritation during the course of the proceeding and that she was very pushy, often telling him to hurry up as he tried to retrieve documents from his bag. I have searched the transcript for any reference by the Member that could reflect these allegations and can find no support for them.
Further, the plaintiff made no complaint in the course of the hearing before the Tribunal about the Member’s conduct, nor any suggestion that she was affected by an appearance of bias. He has provided no explanation why this was not raised. Even though the plaintiff represented himself before the Tribunal, my reading of the transcript indicates that the plaintiff revealed no reluctance to put his case in the way in which he wished to do so. He appears to have been forceful in his cross‑examination of the defendant’s witnesses. He was provided appropriate assistance by the Member in the course of the hearing. In these circumstances, this appears to me to be a case where the plaintiff has waited to see whether the outcome of his complaints is favourable to him before raising any objection to the impartiality of the Tribunal.[106]
[106]See the reasoning of Dawson J in Vakauta v Kelly (1999) 167 CLR 568 at 577.
In my view, having reviewed the transcript and read the Reasons closely, the plaintiff has not, and cannot, establish even a lack of nicety let alone firmly establish any prejudgment or bias. I cannot see how any fair minded lay observer could reasonably apprehend that the Tribunal had not brought an impartial and unprejudiced mind to the resolution of the matter.[107]
[107]See Johnson v Johnson (2000) 201 CLR 488 at 492.
Inconsistent findings
In relation to this part of the plaintiff’s draft Notice of Appeal, there are complaints about paragraph [48] of the Reasons. That paragraph addresses the issue of whether the plaintiff’s complaints about the manner in which the defendant treated him after he failed the exam for Client Assessment and Nursing Care in the first semester of 2013 were capable of establishing victimisation pursuant to s 104 of the EO Act. Paragraph 48 of the Reasons is as follows:
There is nothing before me to suggest that Mr Dirckze was pressured to withdraw the grievance and I am satisfied he elected to do so. Neither the content of the grievance nor the evidence given establishes that Mr Dirckze made a complaint of the kind discussed in section 104 of the EO Act. While he gave evidence that students were teasing him, he gave none about treatment by staff that could form the foundation of a victimisation claim. Mr Dirckze did not give evidence to the effect that, during his discussions with Mr Brown and Ms English, he referred to his race, his age or any other attribute in respect of the Client Assessment and Nursing Care exam. There is no evidence of a complaint or allegation of a breach of the EO Act or any other action falling within section 104(1) of the EO Act.
It is very hard to understand the complaints that are made in relation to this paragraph of the Reasons. The defendant suggests that the particulars given under paragraph 2 of the original draft Notice of Appeal indicate that the plaintiff may have misunderstood the issue the Tribunal addressed in this paragraph. Suffice it to say, I cannot find any evidence to support an argument that the findings in paragraph 48 are inconsistent with other findings or evidence.
Factual findings not open
There are 12 pages of matters put in the original draft Notice of Appeal in support of this supposed ground of appeal. The first section (paragraphs (a) to (j)) all relate to paragraphs [50] to [74] of the Reasons. In this part of the Reasons, the Tribunal considers and dismisses the plaintiff’s claims of victimisation. In order for the plaintiff to sustain his claim of victimisation, it was necessary for him to establish, amongst other things, that he had made a complaint within the meaning of s 104 of the EO Act. The defendant’s defence to the claims of victimisation was that the plaintiff had never made a complaint that fell within the terms of s 104, and therefore those claims had to be dismissed.
From paragraphs [34] to [74] of the Reasons, the Tribunal considered five separate complaints made and in respect of each of them concluded that they did not constitute the kind of complaints the plaintiff needed to have made in order to have a prospect of establishing his claimed victimisation. That is why his claims of victimisation were dismissed.
In every case, the Tribunal was considering a question of fact. It is well established that whether the particular circumstances of the claimant are such as to bring his case within the statutory description is a question of fact and not a question of law.[108] Thus in order to sustain the plaintiff’s claim that there has been an error of law, he must establish that the factual findings were not open to the Tribunal on the evidence before it.[109] The plaintiff has not pointed to any evidence or matter which makes it arguable that it was not open to the Tribunal to conclude that he did not make a complaint of the kind referred to in s 104 of the EO Act. The defendant has provided in its outline of submissions dated 11 November 2015 greater detail and analysis of the particular matters of complaint made by the plaintiff under this heading. I will not repeat the matters there set out.[110] They appear to me to be a correct characterisation of the evidence and Reasons of the Tribunal.
[108]S v Crimes Compensation Tribunal [1998] 1 VR 83 at 89.
[109]Ibid.
[110]Outline of Respondent’s Submissions dated 11 November 2015 at [31]-[34].
Another complaint in the original draft Notice of Appeal concerns the reliance by the Tribunal on the written report provided by Ms Gec which was an exhibit to the written statement of Ms Kerr. To a significant extent, the complaints made by the plaintiff in this section have been dealt with above under the first ground prepared by Mr Gronow in the further draft Notice of Appeal (ground (a)). The plaintiff’s original draft Notice of Appeal goes a little further than Mr Gronow’s ground. The plaintiff contends that:
I was never given the opportunity to object to the tendering of this report, because if so I would have asked that she be called to give evidence. It was the duty of the Tribunal to mention this and ask if I objected to such a report being tendered in evidence. Yet the Tribunal was satisfied on the balance of probabilities that the report of Ms Gec was accurate, when this evidence should not have been admitted.[111]
[111]Exhibit GD-3 to the plaintiff’s affidavit sworn 29 July 2015 at 14.
In my view, the matters that are identified above sufficiently answer this complaint. In particular, the fact that he sought the attendance of Ms Faraone before the commencement of the hearing and repeated it at the beginning of the hearing on the first day, that he had been provided with the report prepared by Ms Gec as an exhibit to the witness statement of Ms Kerr well before the commencement of the hearing, and that he was cross‑examined at some length on the content of Ms Gec’s report and raised no complaint that he had not had an opportunity to question Ms Gec. The duty of the Tribunal to a litigant in person in the conduct of proceedings is no different from that applying to a judge. What the Member must do depends on the litigant, the nature of the case, and the litigant’s intelligence and understanding of the case. It is plain to me that the plaintiff had a sufficient understanding of both his own case and of his rights in the Tribunal to request the attendance of Ms Gec had he wished that course. In the circumstances of the hearing of the complaints by the plaintiff in the Tribunal, it appears to me that for the Member to exclude the report by Ms Gec unless Holmesglen made her available as a witness, would be to confer upon the plaintiff a positive advantage over Holmesglen that was not justified in the circumstances.[112]
[112]See the extract from Rajski v Scitec Corporation Pty Ltd above n 19 at para [11].
In other respects, I consider that the defendant’s written submissions directed to the original draft Notice of Appeal sufficiently answer the matters advanced by the plaintiff. I will not repeat them.
Conclusion
For the reasons set out above, the plaintiff has not established that there is any real or significant argument in relation to any of the identified questions of law that the Tribunal fell into error. I further find that to refuse leave would impose no substantial injustice on the plaintiff. I consider that the reasons of the Tribunal show, when read fully, that the result was a just result on the facts found by the Tribunal and those facts were in accordance with the evidence.
Accordingly, the application for leave to appeal will be dismissed.
I can see no reason why the costs should not follow the event. Accordingly, unless the plaintiff can identify a good reason to the contrary, I propose to order him to pay the defendant’s costs of the application.
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