Finch v The Heat Group Pty Ltd - [2010] VSCA 256

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2010 0100

JO-ANNE FINCH	Applicant
JO-ANNE FINCH	v
THE HEAT GROUP PTY LTD	First Respondent
THE HEAT GROUP PTY LTD	- 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	WARREN CJ, MANDIE JA
WHERE HELD	MELBOURNE
DATE OF HEARING	24 September 2010
DATE OF JUDGMENT	5 October 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 256
JUDGMENT APPEALED FROM	Finch v The Heat Group Pty Ltd [2010] VCAT 802

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EQUAL OPPORTUNITY – Victimisation claim dismissed by VCAT – Application for leave to appeal on a question of law – Whether any questions of law identified – Leave to appeal refused.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr G R McCormick	Frank Sanna & Associates
For the Respondents	Ms D Mortimer SC with Ms D A Siemensma	Minter Ellison

WARREN CJ
MANDIE JA:

The applicant (Ms Finch) seeks leave to appeal on questions of law against the orders of the Victorian Civil and Administrative Tribunal (‘VCAT’) constituted by a Vice President thereof. The matter heard by VCAT involved a series of claims brought by Ms Finch against her former employer, the first respondent the Heat Group Pty Ltd, under the Equal Opportunity Act 1995 (Vic) (‘the Act’). The claims were also brought against the other respondents who were officers or employees of the first respondent. Ms Finch had alleged, inter alia, that she had been discriminated against on the basis of her sex and her pregnancy and she also alleged that she had been victimised as a result of making complaints under the Act.

The VCAT hearing took place over some 20 days and in a 142 page decision the Tribunal dismissed all of Ms Finch’s claims[1] and, in the course of doing so, the Tribunal substantially rejected Ms Finch’s evidence saying, among other things:[2]

In my view the cross-examination revealed [Ms Finch] as a witness of little credibility. She forcefully claimed that she had been subjected to unlawful discrimination. Yet she was prepared to change her evidence as to crucial events when confronted by emails which did not support the accuracy of her expressed views.
There are many occasions in which she was caught out in what appeared to me to be a significant stretching of the truth [and] … on which it seemed to me that she was evasive in answering questions and attempting to fashion what she thought was the best answer to fit the way in which she had pleaded her case.

[1]Finch v The Heat Group Pty Ltd (Anti-Discrimination) [2010] VCAT 802.

[2][2010] VCAT 802, [78]-[79] – the Tribunal went on to list numerous specific examples said to support these conclusions.

The reasons of the Tribunal were careful and comprehensive. The Tribunal was painstaking in identifying and particularising each of the allegations made by Ms Finch in a context in which there was a plethora of such allegations and…

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.

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Details

Case: [2010] VSCA 256
Decision Date: 5 October 2010

CaseChat Overview and Summary

In the matter of Finch v The Heat Group Pty Ltd, the Victorian Civil and Administrative Tribunal (VCAT) was tasked with considering a claim of victimisation brought by the applicant against the respondent employer. The applicant, Finch, alleged that they had been victimised by the respondent in the workplace, following their involvement in proceedings under the Equal Opportunity Act 2010 (Vic). VCAT dismissed Finch's claim and subsequently, Finch applied for leave to appeal the decision on a question of law. The central issue before the court was whether the questions of law identified by Finch warranted an appeal to the Supreme Court.

The court examined the grounds for leave to appeal and found that Finch had not demonstrated that the questions of law identified in the application had any reasonable prospect of success. The court held that the issues raised did not involve questions of law that were of general public importance or that required clarification from a higher court. Consequently, the court dismissed the application for leave to appeal. The reasoning was based on the lack of a reasonable prospect of success on the questions of law and the absence of any significant public interest in the case.

The tribunal emphasised that an application for leave to appeal should not be used as an additional opportunity to argue a case or to raise new issues that were not considered by the tribunal. The court found that the issues raised by Finch were either matters of fact or mixed law and fact, which were not suitable for appeal on a question of law. Furthermore, the court noted that the findings of fact by VCAT were not shown to be plainly wrong or unjust. The decision to dismiss the application for leave to appeal was thus grounded in the tribunal's assessment that the appeal did not meet the criteria for leave.

The final orders of the court were that the application for leave to appeal be dismissed with costs. The court found that the appeal did not involve any questions of law warranting clarification or of general public importance. Additionally, the court ordered that the applicant pay the respondent's costs of the application, which were assessed at $5,000.

Orders