Gray v State of Victoria - [2000] VSC 342

SUPREME COURT OF VICTORIA
PRACTICE COURT	Not Restricted

No. 6087 of 2000

LYNDA GRAY	Plaintiff
v.
THE STATE OF VICTORIA AND ANOTHER	Defendants

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 AUGUST 2000
DATE OF JUDGMENT:	17 AUGUST 2000
CASE MAY BE CITED AS:	GRAY v. STATE OF VICTORIA & ANOR.
MEDIUM NEUTRAL CITATION:	[2000] VSC 342

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CATCHWORDS: Appeal from refusal of Master to grant leave to appeal from decision of the Victorian Civil and Administrative Tribunal – Failure of Tribunal to award costs to successful complainant – No arguable error of law by Tribunal – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. M. Shand QC and Ms R. Germov	Maureen Daly
For the First Defendant	Mr. T. Ginnane	Maddock Lonie Chisholm

HIS HONOUR:

The plaintiff is a school teacher by occupation and was employed as such by the first defendant, the State of Victoria. The second defendant, Ken Pettman, was also a school teacher employed by the State of Victoria and, at the relevant time, worked at the same school as the plaintiff.

On 20 August 1996 the plaintiff lodged a complaint of discrimination, sexual harassment and victimisation under the Equal Opportunity Act 1995 with the Equal Opportunity Commission. The respondents to her complaint were the defendants. The plaintiff alleged that she had been the victim of 33 acts of sexual discrimination, 17 acts of sexual harassment and 15 acts of victimisation committed by one or other of the defendants. The complaints were referred to the antidiscrimination list of the Victorian Civil and Administrative Tribunal.

After a 45 day hearing, which extended over the period from 28 January 1997 to 31 May 1998, on 9 June 1999 the Tribunal found that the plaintiff had proved ten cases of discrimination against the second defendant, ten claims of sexual harassment against the second defendant, nine claims of victimisation against the second defendant and four claims of victimisation against the first defendant.

The Tribunal further found that the first defendant was vicariously liable for the acts of the second defendant.

The Tribunal ordered that the defendants pay to the plaintiff the sum of $35,000 general damages in respect of the contraventions. It held that the first defendant was responsible for five-sevenths of that sum and the second defendant two-sevenths. The tribunal further ordered that the first defendant pay the plaintiff the sum of $20,000 by way of aggravated damages.

Having considered submissions made by the parties as to the costs of the proceeding, on 15 June 2000 the Tribunal held that it would make no order as to the costs. In its finding in that regard, the Tribunal said at page 14 of its reasons:

"The First Respondent was ordered to pay aggravated damages because the First Respondent did not properly or promptly investigate a complaint of sexual harassment. This caused the Complainant to continue to suffer stress in contesting long and hard fought cases before this Tribunal and the Workcover Authority to establish…

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: [2000] VSC 342
Decision Date: 17 August 2000

CaseChat Overview and Summary

The case of Gray v State of Victoria involves an appeal against the refusal of a Master to grant leave to appeal a decision made by the Victorian Civil and Administrative Tribunal. The underlying dispute concerns a failure by the Tribunal to award costs to the successful complainant. The matter was brought before the court to determine whether the Master's refusal to grant leave to appeal was appropriate, given the Tribunal's decision on costs.

The central legal issue before the court was whether the Master correctly exercised his discretion in declining to grant leave to appeal the Tribunal's decision on costs. Specifically, the court had to assess whether the Tribunal had made an arguable error of law that warranted further appellate review. The court also needed to examine whether the Tribunal's decision not to award costs was justifiable under the applicable legal principles.

In considering these issues, the court found that the Tribunal had not committed an arguable error of law in its decision. The Tribunal had carefully considered the relevant factors and provided sufficient reasons for its decision not to award costs. The court concluded that the Tribunal's approach was consistent with established legal principles and that there were no grounds for further appellate review. Consequently, the Master's decision to refuse leave to appeal was upheld, and the appeal was dismissed. The court did not see fit to make any further orders beyond dismissing the appeal.

Orders