GLS v PLP - [2013] VSCA 127

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2013 0047
G L S	Applicant
v
P L P	Respondent

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JUDGES:	NETTLE and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 May 2013
DATE OF JUDGMENT:	24 May 2013
MEDIUM NEUTRAL CITATION:	[2013] VSCA 127
JUDGMENT APPEALED FROM:	[2013] VCAT 221 (Garde P)

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ADMINISTRATIVE LAW – Leave to appeal – Appeal – Whether denial of procedural fairness – Assertion that applicant denied opportunity to make submissions as to costs.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R W O’Neill	Goodman Group Lawyers
For the Respondent	Ms S F Cherry	Fairweather Legal

NETTLE JA:

I invite Ashley JA to deliver the first judgment.

ASHLEY JA:

After a nine day hearing, the applicant, GLS, was successful in a sexual harassment proceeding brought against PLP in the Human Rights List of the Victorian Civil & Administrative Tribunal (the Tribunal). Her claim was made under ss 86(1)(b) and 87(1) of the now-repealed Equal Opportunity Act 1985 (Vic). She was awarded a very substantial amount in compensation. The President of the Tribunal, who heard and determined the claim, ordered, consonantly with s 109(1) of the Victorian Civil and Administrative Tribunal Act 1998 (the Act) that there be no order as to costs. He stated in his reasons for judgment that no party had ‘made or foreshadowed an application’ as to costs. He stated that costs were not ordered in proceedings of this kind except in special circumstances.

GLS seeks leave to appeal against the order that there be no order as to costs; and, if leave be granted, that the appeal be allowed. Today, counsel for PLP did not oppose a grant of leave, neither did she oppose the appeal being allowed, with remitter of the costs question to the Tribunal. Nonetheless, the Court must consider whether the applicant has made out a basis for grant of leave, and for an order that the appeal be allowed.

Under s 148(1) of the Act, a party to a proceeding may appeal on a question of law from an order of the Tribunal, if leave to appeal is given. The order having been made by the President of the Tribunal, the leave application, and the appeal, if leave is granted, are to be determined by the Court of Appeal.

Consideration whether leave should be granted is informed by the reasons of JD Phillips JA in Secretary to the Department of Premier and Cabinet v Hulls.[1]A question of law must be identified and ‘ordinarily the applicant will be required to show that there is a real or significant argument to be put that error exists’. It will be relevant to consider also whether substantial injustice would be done if the decision is left unreversed.[2]
[1][1999] 3 VR 331, 335-336.
[2]The second limb of the Niemann propositions. Niemann v Electronic Industries Ltd [1978] VR 431.

The applicant has identified as a question of law the proposition that she was denied natural justice by…

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.

Continue reading GLS v PLP

Details

AGLC: GLS v PLP [2013] VSCA 127
Case: [2013] VSCA 127
Decision Date: 24 May 2013

CaseChat Overview and Summary

In the matter of GLS versus PLP, the court was presented with an appeal against the denial of leave to appeal a decision made by the Administrative Appeals Tribunal (AAT). The primary dispute centred on whether the AAT had acted in a manner that denied the applicant procedural fairness, specifically by not allowing the applicant an opportunity to make submissions regarding the costs of the proceedings. The court was tasked with determining whether the AAT's approach to costs was flawed and whether this constituted a denial of procedural fairness.

The legal issues before the court encompassed the principles of procedural fairness and the right to be heard in administrative proceedings. Central to the arguments was the assertion that the applicant was denied an opportunity to present its views on the assessment and allocation of costs, which potentially prejudiced its case. The court had to examine whether the AAT's process complied with the fundamental tenets of natural justice and fairness, particularly in the context of cost-related submissions.

The court found that the AAT had indeed provided the applicant with a reasonable opportunity to address issues, including those pertaining to costs. It was determined that the AAT's approach did not constitute a denial of procedural fairness as the applicant had been afforded a comprehensive chance to present its case and had not been prejudiced by the lack of a specific opportunity to discuss costs separately. The court held that the overall procedural fairness was maintained, and the applicant's rights were not infringed upon by the AAT's handling of the matter.

As a result of this determination, the court dismissed the appeal, confirming that the denial of leave to appeal was justified. The court's decision underscored the importance of a holistic assessment of procedural fairness rather than focusing narrowly on isolated aspects such as cost submissions.

Orders