Finch v The Heat Group Pty Ltd

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

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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:

1. 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).

1. 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.

1. 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…