Fire Rescue Victoria v Wheatley - [2023] VSC 269

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2023 00389

FIRE RESCUE VICTORIA (28 598 558 561)	Applicant
v
DONNA WHEATLEY	Respondent

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JUDGE:	Gorton J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 May 2023
DATE OF JUDGMENT:	24 May 2023
CASE MAY BE CITED AS:	Fire Rescue Victoria v Wheatley
MEDIUM NEUTRAL CITATION:	[2023] VSC 269

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APPEAL – Appeal against failure by VCAT summarily to dismiss or to strike out claims in proceeding brought under Equal Opportunity Act 2010 (Vic) – Whether and how sch 1 cl 18 affects the meaning of s 76 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) in claims under the Equal Opportunity Act 2010 (Vic) – Whether VCAT erred in law by applying the wrong test – Whether VCAT erred by including passages relating to an application under a section that was not pursued that appeared to be ‘cut and pasted’ from another decision – Where ss 76 and 75(1)(b) raise the same question – Whether VCAT erred by conflating or by failing to consider the sections separately – No error of law – Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 75, 76 and 148, sch 1 cl 18.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms C Harris KC and Dr L Hilly	Hall & Wilcox
For the Respondent	Ms S Kelly	Maurice Blackburn

TABLE OF CONTENTS

A. Introduction.................................................................................................................................. 1

B. The Tribunal’s power summarily to dismiss........................................................................... 1

C. The meaning of s 76 of the VCAT Act as varied by cl 18 of sch 1....................................... 2

C.1Different possible interpretations and the Tribunal’s approach.................................... 2
C.2The preferable interpretation............................................................................................... 5

D. The approach of the Tribunal in this application................................................................. 8

E. Did the Member err in law?..................................................................................................... 10

E.1Section 75(1)(a) of the VCAT Act and whether there a conflation of the two tests... 10
E.2The approach taken to the application under s 76 of the VCAT Act........................... 11
E.3The failure separately to consider the application under s 75(1)(b) of the VCAT Act 12
E.4The references to the role of the ‘adjudicator in the hearing’....................................... 13
E.4The reference to Ms Wheatley being self-represented................................................... 14

F. Disposition................................................................................................................................... 14

HIS HONOUR:

A. Introduction

Donna Wheatley, the respondent, worked for Fire Rescue Victoria (‘FRV’), the applicant, or its predecessor the Metropolitan Fire Brigade, on short term contracts in 1998 and 1999 and then full time from 2003 until she ceased work in June 2021. She had what appears to have been a successful career, but claims to have been sexually harassed and subjected to other forms of discrimination on numerous occasions over effectively that entire period of employment. On 6 September 2021, she commenced a proceeding in the Victorian Civil and Administrative Tribunal (‘VCAT’ or ‘the Tribunal’) under the Equal Opportunity Act 2010 in which she seeks, among other things, compensation.[1] FRV applied to have Ms Wheatley’s proceeding summarily dismissed, or struck out, due…

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: [2023] VSC 269
Decision Date: 24 May 2023

CaseChat Overview and Summary

In the matter of Fire Rescue Victoria v Wheatley, the applicant, Fire Rescue Victoria, appealed against the decision of the Victorian Civil and Administrative Tribunal (VCAT) which had refused to summarily dismiss or strike out certain claims made by the respondent, Mr Wheatley, in proceedings brought under the Equal Opportunity Act 2010 (Vic). The primary dispute centred on whether VCAT had correctly applied the law in dismissing the claims, specifically regarding the interpretation and application of sections 75 and 76 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) and Schedule 1, clause 18 of the Equal Opportunity Act 2010 (Vic).

The legal issues before the court were whether VCAT erred in law by applying the incorrect test when assessing the application to summarily dismiss or strike out Mr Wheatley’s claims, and whether VCAT made any procedural errors by including irrelevant passages in its decision. The court was also tasked with determining if VCAT correctly distinguished between sections 75 and 76 of the Tribunal Act and whether there was any conflation of the two sections in the decision.

The court found that VCAT had not erred in law and had correctly applied the relevant statutory provisions. It was determined that the tribunal had appropriately assessed the application under the correct legal framework, even if some passages seemed to have been copied from a different decision, these did not affect the overall correctness of the tribunal's analysis. The court held that VCAT had considered the relevant sections separately and had not conflated them, thereby ensuring a fair and accurate assessment of the application. The appeal was dismissed, and no orders were made as the findings of the tribunal were upheld.

Orders