He v Envelopments Pty Ltd - [2004] VSC 457

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 9398 of 2003

DAMING HE	Appellant
v
ENVELOPMENTS PTY LTD, FERGUS RAMSAY, TAMAS HUME AND JOHN WILSON	Respondents

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JUDGE:	Williams J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 and 20 May, 29 July, 2 and 9 September 2004
DATE OF JUDGMENT:	11 November 2004
CASE MAY BE CITED AS:	He v Envelopments Pty Ltd & ors
MEDIUM NEUTRAL CITATION:	[2004] VSC 457	First Revision: 22/11/04

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TRIBUNALS – Appeal from Master – Whether leave to appeal should be granted - Whether error of law established – Whether real or significant argument justifying leave – Leave refused – s 148 Victorian Civil and Administrative Tribunal Act 1998 – s 3, s 6, s 7, s 8, s 9, s 10, s 14, s 96, s 97, s 98, s 99, s 102 Equal Opportunity Act 1995 – s 170HB Workplace Relations Act 1996 (Cth).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Appellant in Person
For the Respondent	Mr A. McNab	Middletons

HER HONOUR:

This is an appeal from a decision of Master Wheeler on 5 May 2004 dismissing an application for leave to appeal brought under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (“the VCAT Act”) from the decision on 28 November 2003 of the Victorian Civil and Administrative Tribunal (“VCAT”) constituted by Mr Walker sitting in its Anti-Discrimination List (“the Tribunal”).

The appellant’s claim

The appellant (“Mr He”) is and was at all relevant times a mechanical engineer. His claim at VCAT related to his employment by the first respondent engineering company (“Envelopments”) and its termination. Mr He had originally brought his claim in the Equal Opportunity Commission which had declined to hear it. The complaint had been referred to the Tribunal at Mr He’s request. Whilst s 108 of the Equal Opportunity Act 1995 (“the Equal Opportunity Act”) provides for such a referral after the Equal Opportunity Commission has declined to entertain a complaint, it is not clear from the material before the Court under which provision the referral was made. S 134 of the Equal Opportunity Act provides that VCAT may hear a complaint referred to it by the Equal Opportunity Commission.

Mr He represented himself before the Tribunal and had drawn his own documents. His claim was set out in a document entitled “Particulars of Complaint”. The Tribunal described his complaint in relation to alleged breaches by the respondents of s 6, s 7, s 8, s 9, s 14, s 96, s 97, s 98, s 99 and s 102 of the Equal Opportunity Act as being one made “on the basis of race … that he was paid less than he should have been paid and that he was subject to unfair warnings …”.

On 28 November 2003 the Tribunal dismissed his complaint and gave written reasons for the decision (“the Reasons”).

The claim relating to the termination of Mr He’s employment

The Tribunal…

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 He v Envelopments Pty Ltd

Details

AGLC: He v Envelopments Pty Ltd [2004] VSC 457
Case: [2004] VSC 457
Decision Date: 11 November 2004

CaseChat Overview and Summary

The appeal in He v Envelopments Pty Ltd was brought by the applicant, seeking leave to appeal a decision made by a Master of the Victorian Civil and Administrative Tribunal (VCAT). The original dispute involved allegations of unlawful discrimination and unfair dismissal, with the applicant claiming that Envelopments Pty Ltd had contravened several provisions of the Equal Opportunity Act 1995 and the Workplace Relations Act 1996 (Cth). The Master had dismissed the applicant's claims, leading to this appeal.

The legal issues before the court were whether leave to appeal should be granted, whether there had been an error of law, and whether there was a real or significant argument that justified the granting of leave. The applicant argued that the Master had erred in their interpretation and application of the law, particularly in relation to the provisions of the Equal Opportunity Act and the Workplace Relations Act. Additionally, the applicant contended that the Master had overlooked significant evidence which, if considered, would have altered the outcome of the case.

The court considered the criteria for granting leave to appeal under section 148 of the Victorian Civil and Administrative Tribunal Act 1998. It found that the applicant had not demonstrated that the Master had made an error of law or that there was a significant argument that would justify the granting of leave. The court was not persuaded that the alleged errors in interpretation or application of the law were so compelling as to warrant an appeal. Furthermore, the court noted that the evidence the applicant claimed had been overlooked did not appear to be of a kind that would have substantially affected the outcome. Therefore, the application for leave to appeal was dismissed.

No further orders were made by the court, and the decision of the Master remained upheld.

Orders