SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2011 0027
| JO-ANNE FINCH |
| Applicant |
| v |
THE HEAT GROUP PTY LTD (ACN 092 941 430) First Respondent
- and -
GILLIAN FRANKLIN Second Respondent
- and -
PETER KADLECIK Third Respondent
- and -
ADAM WHITE Fourth Respondent
- and -
JOHN SIMCOCKS Fifth Respondent
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JUDGES: | TATE JA and HARGRAVE AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 8 April 2011 | |
DATE OF JUDGMENT: | 8 April 2011 | |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 100 | 1ST Revision, 4 May 2011, [catchwords] |
JUDGMENT APPEALED FROM: | Finch v The Heat Group Pty Ltd (Unreported, Victorian Civil and Administrative Tribunal, Harbison VP, 31 January 2011) | |
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APPEAL – Procedure – Application for leave to appeal costs orders made following unsuccessful VCAT proceeding – Application refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the Respondent | Ms D A Siemensma | Minter Ellison |
TATE JA:
This is an application brought by Ms Jo‑Anne Finch for leave to appeal, pursuant to s 148(1)(a) of the Victorian Civil and Administrative Tribunal Act1998 (the ‘VCAT Act’), from orders for costs made by her Honour Judge Harbison, Vice President of the Victorian Civil and Administrative Tribunal (‘VCAT’), on 31 January 2011. The orders were made in a proceeding brought by Ms Finch under the Equal Opportunity Act1995 against her former employer, The Heat Group Pty Ltd and others, the respondents at VCAT and the respondents to the current application. Judge Harbison dismissed that proceeding,[1] and, as a consequence, made orders that Ms Finch pay two-thirds of the respondents’ party-party costs of the proceeding.
[1]Finch v The Heat Group Pty Ltd (Unreported, Victorian Civil and Administrative Tribunal, Harbison VP, 31 January 2011).
Section 148(1)(a) relevantly provides:[2]
A party to a proceeding may appeal, on a question of law, from an order of the Tribunal in the proceeding –
(a)to the Court of Appeal, if the Tribunal was constituted for the purpose of making the order by the President or a Vice President …
if the Court of Appeal … gives leave to appeal.
[2]Emphasis added.
The test for a grant of leave to appeal under s 148(1)(a) of the VCAT Act was set out by the Court of Appeal in Secretary to the Department of Premier and Cabinet v Hulls.[3] There, Phillips JA (with whom Tadgell and Batt JJA agreed), said this:[4]
Under s 148 leave is always necessary …
As the leave is sought under s 148, that section must be the starting point for any consideration of what has to shown by an applicant seeking leave. Because an appeal under s 148 lies only on a question of law it follows that if leave is to be granted the applicant must at least identify a question of law (as distinct from a question of fact) and a question of law which is important to the appeal’s succeeding or failing. … The question of law must be such that, if there is shown to…
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- Case
- [2011] VSCA 100
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether Finch's application for leave to appeal was an appeal from the original County Court decision or from the VCAT decision. The court held that the appeal was from the VCAT decision and not from the original County Court decision. The court held that an application for leave to appeal a costs order made by VCAT following an unsuccessful proceeding in the County Court is not an appeal from the original County Court decision, but rather an appeal from the VCAT decision. Accordingly, the court held that the application for leave to appeal was not properly before it and dismissed the application.
The court's reasoning was based on the statutory framework governing appeals from VCAT decisions. The court held that the application for leave to appeal was not an appeal from the original County Court decision, but rather an appeal from the VCAT decision. The court held that the application was not properly before it and dismissed the application. The court further held that the application did not satisfy the criteria for leave to appeal set out in the relevant legislation.
The court refused Finch's application for leave to appeal the costs orders made by VCAT. The court held that the application was not properly before it and dismissed the application. The court held that the application did not satisfy the criteria for leave to appeal set out in the relevant legislation. The court did not make any orders for costs.
Orders
Orders of the court
Application refused.
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Background to the litigation
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Evidence Before The Court
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Legal Principle Established
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