Huang v Frankston City Council
[2022] VSC 595
•7 October 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2022 01379
BETWEEN:
| KAI YUAN HUANG | Applicant |
| v | |
| FRANKSTON CITY COUNCIL | Respondent |
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JUDGE: | Irving AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 August 2022 |
DATE OF RULING: | 7 October 2022 |
CASE MAY BE CITED AS: | Huang v Frankston City Council |
MEDIUM NEUTRAL CITATION: | [2022] VSC 595 |
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JUDICIAL REVIEW AND APPEALS — Application for an extension of time within which to apply for leave to appeal, and for leave to appeal, from the Victorian Civil and Administrative Tribunal under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) — Whether question of law identified — Whether appellant would have an arguable case on appeal — Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| The Applicant in person | Self-represented litigant | |
| For the Respondent | G Lake | Barry.Nilsson. |
TABLE OF CONTENTS
Introduction........................................................................................................................................ 1
Background......................................................................................................................................... 2
Grounds of appeal............................................................................................................................. 6
Applicable legal principles.............................................................................................................. 9
Consideration.................................................................................................................................... 12
The length and reasons for the delay....................................................................................... 12
Weighing of relative prejudice.................................................................................................. 14
Identified question of law and arguable case......................................................................... 14
Conclusion......................................................................................................................................... 17
HIS HONOUR:
Introduction
Kai Yuan Huang (applicant) owns a short-stay rental property in Frankston, which he leased through Airbnb (property). He does not have a good relationship with his property’s neighbour (neighbour). Both have made complaints about the other to Frankston City Council (respondent). In the course of dealing with those complaints, the respondent sent a number of emails and letters to various people. The respondent also sent its officers to investigate.
The applicant takes issue with the respondent’s correspondence and the information collected by the respondent’s investigators. He made two separate complaints against the respondent to the Office of the Victorian Information Commissioner (OVIC) around May and April 2020, respectively. The substance of the complaints was, in brief, that the respondent had collected and disclosed the applicant’s personal information in a manner that contravened the Privacy and Data Protection Act 2014 (Vic) (PDP Act).
Both of the applicant’s complaints were referred by OVIC to the Victorian Civil and Administrative Tribunal (VCAT) for hearing and determination (VCAT proceeding). On 12 January 2022, VCAT made orders, with written reasons, dismissing the applicant’s complaints (VCAT decision).[1]
[1]Huang v Frankston City Council (Human Rights) [2022] VCAT 24.
Under r 4.04 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic) (Rules), the applicant had 28 days to file an application for leave to appeal the VCAT decision. An application for leave to appeal was therefore required to be lodged under the Rules by 9 February 2022.
The applicant filed his application for leave to appeal the VCAT decision on 8 April 2022. He sought an extension of time to seek leave to appeal the VCAT decision. The respondent opposed any extension of time.
For the reasons given below, I have decided that the applicant’s application for an extension of time should be refused.
Background
In his first complaint to OVIC, the applicant alleged that in breach of principles 2.1 and 4.1 of the Information Privacy Principles (IPP),[2] the respondent disclosed his personal information in relation to:
(a) a fencing complaint he had made to the respondent in December 2019; and
(b) a soil dumping complaint he had made to the respondent in January 2020.
[2]PDP Act sch 1 (The Information Privacy Principles).
In his second complaint to OVIC, the applicant alleged that in breach of principles 1.2, 2.1 and 4.1 of the IPP, the respondent:
(a) made inappropriate disclosures to his neighbours;
(b) inappropriately disclosed his personal information to Airbnb;
(c) inappropriately disclosed his personal information to a journalist;
(d) unfairly and unlawfully collected his personal information by trespassing on the property; and
(e) unfairly and unlawfully collected his personal information through the use of a security device.
In relation to each complaint, the applicant sought compensation totalling $100,000, including for alleged loss of income from Airbnb cancellations, damage to the property caused by the neighbour and the respondent, compensation for reputational damage, stress and humiliation suffered, and costs incurred in relation to these and other proceedings.
On 12 January 2022 Member Scott of VCAT made orders dismissing the applicant’s complaints and published reasons for doing so. The reasons set out the background to the applicant’s complaints, the relevant parts of the PDP Act, including the IPP relevant to the complaints and then set out the evidence and VCAT’s findings. It is unnecessary to reproduce VCAT’s findings here but it is instructive to summarise how VCAT dealt with some aspects of the applicant’s complaints.
At VCAT the applicant alleged the respondent unlawfully used or disclosed his name and address to his neighbour in relation to a complaint he made about the neighbour’s fence. The applicant had made the complaint over the telephone to the respondent. Approximately one month later, after the respondent had undertaken an on-site inspection, the applicant attended his property where the neighbour yelled at and threatened the applicant because he reported the fence to the respondent. In VCAT the applicant relied on an internal document prepared by the respondent that referred to the applicant and his neighbour having a ‘history’ in regards to the boundary line. The applicant submitted the knowledge of the history between the applicant and his neighbour was proof the respondent’s officers must have disclosed the applicant’s name to his neighbour. The applicant also relied on transcript of a County Court civil proceeding between the applicant and his neighbour from 16 August 2021 in which the neighbour said the respondent told him the applicant complained about the fence.
The VCAT reasons record that in the transcript of the neighbour’s evidence, he goes on to say, ‘the Council sent me a letter to say they’ve received a complaint – why would anybody else?’ and ‘Why would anybody else send it’s a side fence between us two Kai. Why would someone walk down the street and complain about a fence?’. The reasons then set out the respondent’s evidence that their complaints handling process involves keeping a complainant’s details confidential and that the copy of the respondent’s letter to neighbour about the fence complaint did not contain any information about the complainant. VCAT accepted the respondent’s evidence that the respondent’s letters did not disclose the applicant’s personal information. VCAT went on to consider whether it should infer, as urged by the applicant, from the facts and timing of the events that the respondent disclosed the applicant’s personal information to the neighbour. VCAT decided it should not draw that inference, finding that because of the acrimonious history between the applicant and his neighbour, it was more probable than not that the neighbour identified the applicant as the source of the fence complaint ‘all on his own’.
At VCAT the applicant complained the respondent had unlawfully used or disclosed his name and address to his neighbour in relation to a soil dumping complaint the applicant had made to the respondent. The applicant made his complaint by telephone and the respondent agreed to investigate. An officer of the respondent attended to inspect the alleged soil dumping and engaged in a conversation with the neighbour. The applicant said in VCAT that he observed that during that conversation the officer turned and pointed at his property and waved at the applicant. The applicant’s evidence was that when the officer left the neighbour yelled at and threatened the applicant. The applicant’s wife gave evidence in VCAT to the same effect. The applicant also relied at VCAT on transcript of the neighbour’s evidence in a County Court proceeding in which the neighbour said the officer told the neighbour the address of the person who made the soil dumping complaint but that she was not allowed to tell the neighbour the complainant’s name. In the County Court the neighbour’s evidence was that he did not yell at or abuse the applicant and that, ‘not one word was spoken.’ The officer gave evidence at VCAT that at the time of the inspection the officer was not aware of the source of the soil dumping complaint and so could not have disclosed the applicant’s personal details. The officer’s evidence was that the neighbour asked who had sent the officer and said words to the effect of, ‘I bet it was my neighbour’ while he pointed to the applicant’s property.
The VCAT reasons set out all of the evidence in relation to the applicant’s allegation. The reasons then state that the VCAT Member accepted the evidence of the applicant and his wife, corroborated at least in part by other evidence of a police complaint and video footage, that the neighbour had yelled at and abused the applicant. On this basis the VCAT Member found the neighbour’s evidence in the County Court on this issue to be untrue to the extent the neighbour said ‘not one word was spoken’. Based on this finding the VCAT Member found the neighbour not to be a credible witness insofar as his evidence in the County Court proceeding related to the applicant’s allegations in the VCAT proceeding. Accordingly, the VCAT Member decided against the applicant on this aspect of his complaint.
The above summary relates to two of several allegations the applicant made at VCAT. In relation to each of the applicant’s allegations the VCAT reasons set out clearly and logically the evidence the parties relied on and, where that evidence was conflicting, why the Member preferred a particular piece of evidence over another and the findings based on the evidence. At the conclusion of the reasons, the Member decided that the applicant had failed to prove the respondent breached the IPP or the PDP Act and so dismissed his applications for compensation.
On 8 April 2022, VCAT made further orders requiring the applicant to pay the respondent’s costs in the VCAT proceeding.
The applicant filed a notice of appeal, including his application for an extension of time, on 8 April 2022. In his notice of appeal, the applicant listed the following questions of law:
1.Did [VCAT] err in law by failing to give up relevant sworn evidences [sic] with respect to the orders of ‘The fencing complaint’ and ‘The dumping complaint’?
2.Did [VCAT] err in law by failing to identify the falsified evidence with respect to the order of ‘The dumping complaint’?
3.Did [VCAT] err in law by failing to verify the truth and consequently to use the falsified evidence with respect to the order of ‘The dumping complaint’?
4.Did [VCAT] err in law by failing to apply S2.1 and S4.1 of Schedule 1 (Information Privacy Principles) of Privacy and Data Protection Act 2014 (VIC) with respect to the order of ‘Alleged inappropriate disclosures to the neighbours‘ and ‘Alleged inappropriate disclosure to journalist’?
5.Did [VCAT] err in law by failing to apply S2.1 of Schedule 1 (Information Privacy Principles) of Privacy and Data Protection Act 2014 (VIC) and S228E(2) of The Building Act 1993 (VIC) with respect to the order of ‘Alleged unfair and unlawful collection of personal information by trespass’?
Grounds of appeal
The applicant’s notice of appeal relies on the following grounds:
Ground of appeal relating to Question of law 1:
• Section 55 of the Evidence Act 2008 (VIC) provides that Relevant evidence:
The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (either directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
Ground of appeal relating to Question of law 2 and 3:
1. Section 101A of the Evidence Act 2008 (VIC) Credibility Evidence:
Credibility evidence, in relation to a witness or other person, is evidence relevant to the credibility of the witness or person that –
(a) is relevant only because it affects the assessment of the credibility of the witness or person; or
(b) is relevant—
(i) because it affects the assessment of the credibility of the witness or person; and
(ii) for some other purpose for which it is not admissible, or cannot be used, because of a provision of Parts 3.2 to 3.6.
2. Section 83A Crimes Act 1958 Falsification of Documents:
A person must not make a false document with the intention that he or she, or another person, shall use it to induce another person to accept it as genuine, and by reason of so accepting it to do or not to do some act to that other person’s or to another person’s prejudice.
Ground of appeal relating to Question of law 4:
1.Section 2.1 of Schedule 1 (Information Privacy Principles) of Privacy and Data Protection Act 2014 (VIC):
An organisation must not use or disclose personal information about an individual for a purpose (the secondary purpose) other than the primary purpose of collection.
2.Section 4.1 of Schedule 1 (Information Privacy Principles) of Privacy and Data Protection Act 2014 (VIC):
An organisation must take reasonable steps to protect the personal information it holds from misuse and loss and from unauthorised access, modification or disclosure.
Ground of appeal relating to Question of law 5:
1.Section 1.2 of Schedule 1 (Information Privacy Principles) of Privacy and Data Protection Act 2014 (VIC):
An organisation must collect personal information only by lawful and fair means and not in an unreasonably intrusive way.
2.Section 228E(2) of The Building Act 1993 (VIC):
A power under subsection (1) must not be exercised in or on any part of a building that is used for residential purposes unless the authorised person obtains the consent of the occupier of the building.
The applicant’s notice of appeal outlined the following basis for his request for an extension of time:
1. I had waited for help from Justice Connect.
2.The first Notice of Appeal was submitted on 9 Feb 2022 under eFile ID: 237069 under fee waiver.
3.I tried to make the payment by credit card on 21 March 2022 for eFile ID: 237069, but eFile ID 237069 was closed.
4.I resubmitted Notice of Appeal on 8 April 2022 with another eFile ID: 249368 after communication with Supreme Court.
5.My father (Yusheng Huang) passed away on 10 Jan 2022. I had spent a lot of time taking care of him in hospital and organising his funeral service. Consequently I have depression from my father’s death.
6.I fell from 5 metres high on 3 Feb 2022 as a result I had surgery on 17 Feb 2022 in St Vincent’s Hospital. Since then, I have suffered constant pain and am currently under a recovery program.
In support of his application for an extension of time, the applicant relied on:
(a) the affidavit of Kai Yuan Huang affirmed 20 April 2022 and its bundle of exhibits (first affidavit);
(b) the affidavit of Kai Yuan Huang affirmed 27 May 2022 and its bundle of exhibits (second affidavit);
(c) the affidavit of Kai Yuan Huang affirmed 7 June 2022 and its bundle of exhibits (third affidavit);
(d) the affidavit of Kai Yuan Huang affirmed 6 July 2022 and its bundle of exhibits (fourth affidavit); and
(e) an outline of written submissions dated 6 July 2022.
The applicant’s first affidavit exhibited the death certificate of Yusheng Huang, noting the date of death as 10 January 2022. The affidavit also exhibited a letter from St Vincent’s Hospital to the applicant, dated 15 February 2022, noting his date of surgery as 17 February 2022.
The applicant’s second affidavit exhibited a copy of the VCAT decision that the applicant seeks to appeal.
The applicant’s third affidavit exhibited a number of documents, including the documents exhibited to his first affidavit and:
(a) a letter from Dr Lily Kang of St Vincent’s Hospital addressed to “whom it may concern”, confirming that the applicant was at St Vincent’s Hospital for a medical condition on 17 February 2022;
(b) a medical certificate issued by St Vincent’s Hospital on 27 May 2022, certifying the applicant was unfit to follow his daily occupation on 17 February 2022;
(c) a copy of the applicant’s notice of appeal dated 9 February 2022;
(d) email correspondence from the Supreme Court of Victoria (Supreme Court) dated 9 February 2022, noting the applicant’s proposed filing had been received and was under review;
(e) email correspondence from the Supreme Court dated 10 February 2022, advising the applicant that his documents had not been accepted for filing because he had selected waiver as his court fee type but had not uploaded a completed fee waiver application with supporting documentation;
(f) emails between the applicant and the Supreme Court Registry dated 21 and 22 March 2022, in which the applicant advised he no longer sought a fee waiver and intended to pay by credit card and Registry advised the applicant to refile his documents; and
(g) an email from the Supreme Court dated 8 April 2022, advising the applicant his proposed filing had been received and was being reviewed.
The applicant’s fourth affidavit exhibited 22 documents, including correspondence to the VCAT Registry from the applicant early February 2022, in which he advised of his intention to appeal the VCAT member’s decision; various other documents that appear to have been filed in the VCAT proceeding; and copies of various legislative provisions.
In opposition to the application for an extension of time, the respondent relied upon:
(a) the affidavit of Jason Xue (Xue), solicitor for the respondent, affirmed 22 June 2022; and
(b) an outline of written submissions dated 22 June 2022.
Xue’s affidavit provided a short history of the applicant’s complaints to OVIC and their referral to VCAT for determination. Xue also stated that VCAT made a costs order on 8 April 2022 that required the applicant to pay part of the respondent’s costs of the VCAT proceeding. Xue exhibited a copy of VCAT’s costs order and its reasons.[3]
[3]Huang v Frankston City Council (Costs) (Human Rights) [2022] VCAT 368.
Applicable legal principles
Section 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) provides that a party to a proceeding may appeal on a question of law from an order of VCAT constituted by a non-presidential member to the Trial Division of the Supreme Court with leave of the Trial Division. An application for leave to appeal must be made within 28 days after the day of the order of VCAT, unless the Rules otherwise provide.[4] Regulation 4.04 of the Rules provides that an application for leave to appeal shall be commenced within 28 days after the day of the order of the tribunal. Regulation 4.01 confirms the operation of O 4 on appeals under s 148 of the VCAT Act. ‘Tribunal’ is defined in r 4.02 to mean any person or body, not being a court, in relation to whose orders a right of appeal to the Court is conferred by an Act.
[4]VCAT Act s 148(2).
The Trial Division of the Supreme Court may grant an application for leave to appeal only if it is satisfied that the appeal has a real prospect of success.[5]
[5]Ibid s 148(2A).
Relevantly, pursuant to s 148(5) of the VCAT Act, the Trial Division of the Supreme Court may at any time extend any time limit fixed by or under s 148 of the VCAT Act. The exercise of the Court’s power to extend time is discretionary.[6] The discretion is to be exercised ‘judicially, that is, not by reference to irrelevant or extraneous considerations, but upon facts connected with or relevant to the matter’.[7] Importantly, the discretion is couched in broad language, and is not limited to ‘special reasons’ or ‘special circumstances’ as would necessitate the presence of an exceptional set of facts.[8]
[6]Davies v Transport Accident Commission [2000] VSC 379.
[7]Holt v Director of Housing [2021] VSC 270 (Holt), [69].
[8]See Jackamarra v Krakouer (1998) 195 CLR 516, [66].
In Holt v Director of Housing (Holt), Derham AsJ surveyed the authorities relevant to the Court’s discretion to grant an extension of time under the VCAT Act:
In relation to an extension of time, s 148(5) of the VCAT Act empowers this Court to extend the 28-day time limit fixed for seeking leave to appeal. Whether or not to extend the time for appealing is in the discretion of the Court. Although the discretion to extend time is unfettered, like all discretions it has to be exercised judicially, that is, not by reference to irrelevant or extraneous considerations, but upon facts connected with or relevant to the matter, and it should be exercised flexibly with regard to the facts of the particular case.
A consideration relevant to the exercise of the discretion is that upon the expiry of the time limited for appeal, or in this case, an application for leave to appeal, the defendant has a vested right to retain the judgment or order unless the application is granted.
The Court does not decide an application to extend or enlarge time for doing an act according to some formula. The factors identified in the authorities, however, provide a useful guide. They include:
(a) The length of the delay;
(b) The reasons for the delay;
(c)Whether there is an arguable case for the grant of leave to appeal if an extension of time is granted;
(d)The weighing of the extent of prejudice to the appellant and respondent if time is extended; and
(e) The importance of the subject matter.
In some cases, where the delay has not been long and the reason has been an error in the understanding of the correct procedure by the would-be appellant or her legal advisors, much has depended upon the extent to which the appellant would be prejudiced by the Court refusing its application and any prejudice to the respondents occasioned by granting it. This, inevitably, brings into play the chances of leave being granted if an extension of time is granted and thus whether it is arguable that the Tribunal made an error of law.
In general, an extension of time will be granted where it is in accordance with the justice of the case to do so. Clearly, the party seeking the extension bears the onus of proving that it should be granted. An extension will not be granted if the case is hopeless, unarguable or bound to fail, or now since the introduction of s 1[4]8(2A), because the case has no real prospects of success, because it would be futile to grant the extension in those circumstances.[9]
[citations omitted]
[9]Holt [69]–[73].
Rule 4.08(8) of the Rules states that the Court may dismiss an extension of time application if:
(a) the notice of appeal does not identify sufficiently or at all a question of law on which the appeal or proposed appeal may be brought;
(b) the appellant or applicant does not or would not have an arguable case on appeal or to refuse leave would impose no substantial injustice; or
(c) the appeal or application is frivolous, vexatious or otherwise an abuse of the process of the Court.
There is an important distinction to be drawn here between the requirement imposed for an extension of time in lodging an appeal, and the requirement imposed for leave to appeal to be granted. The former is, as would be expected, a lower hurdle for the applicant to clear. Where leave to appeal is to be granted only where there is “a real prospect of success”, an extension of time only requires that the case is not “hopeless, unarguable, bound to fail or … [having] no prospect of success”.
Consideration
The length and reasons for the delay
The applicant seeks to appeal a decision made by VCAT on 12 January 2022. Under the provisions of the VCAT Act, he was therefore required to file his notice of appeal by 9 February 2022. The applicant filed his notice of appeal on 8 April 2022, which was two months out of time. A delay of this length of time is significant.
In summary, the applicant submitted the following reasons for his delay in filing his notice of appeal:
(a) he was the carer of his aged parents;
(b) his father was hospitalised between 24 December 2021 and 10 January 2022, when he passed away;
(c) he had to organise his father’s funeral and look after his mother;
(d) since his father’s death, he has suffered from depression;
(e) he contacted VCAT on 2 February 2022 and informed VCAT of his intention to appeal the orders and reasons of 12 January 2022;
(f) on 3 February 2022, he fell 5 meters and had surgery on 17 February 2022 as a result;
(g) since his fall, the applicant has suffered constant pain, itching and swelling that have made it difficult for the applicant to concentrate;
(h) in addition, his doctors instructed the applicant to remain in bed with his leg raised to address the swelling;
(i) he tried to file his incomplete notice of appeal on 9 February 2022 and requested a fee waiver;
(j) on 16 February 2022, he requested an extension of time to file submissions on costs in the VCAT proceeding, but VCAT did not respond;
(k) he found it difficult to complete the Court’s fee waiver application form, and on 21 March 2022 decided not to apply for a fee waiver;
(l) the Court’s Registry staff then informed the applicant he would have to resubmit his notice of appeal with his payment;
(m) he sought legal advice and assistance to complete his notice of appeal; and
(n) on 8 April 2022 the applicant submitted his completed notice of appeal with an application for an extension of time.
The respondent submitted that the applicant’s reasons for the significant delay in filing his notice of appeal are insufficient to justify the Court granting an extension of time. The respondent said the applicant had not explained why he required two extra months to file his notice of appeal and that the Court should consider the applicant’s delay in this proceeding against his preparation and filing of costs submissions for the VCAT proceeding on 21 February 2022. The respondent said this indicates the applicant did have the ability in February 2022 to complete administrative tasks associated with legal proceedings. Further, the respondent submitted that while the applicant is a self‑represented litigant, VCAT, in its reasons supporting the costs order[10] described the applicant as ‘an effective non-professional advocate’ with prior experience of the legal system.
[10]VCAT’s costs order, [54].
I am satisfied that the applicant has provided a cogent and reasonable explanation for the delay. The applicant’s submissions suggested an earnest and genuine effort to submit his notice of appeal on time, operating without qualified legal assistance, and in his second language. The personal stresses placed upon the applicant in January and February of this year were not trifling, nor were they of his own making. I am satisfied that this factor weighs in favour of granting an extension of time.
Weighing of relative prejudice
The applicant’s evidence is that he first unsuccessfully attempted to file his notice of appeal on 9 February 2022 but that due to a confluence of circumstances he did not successfully file his notice of appeal until 8 April 2022. If an extension of time is not granted the applicant will be prejudiced because he will lose his right to appeal the VCAT order.
The respondent submitted that it was entitled to rely on the VCAT orders once the statutory period for filing a notice of appeal had expired and that it is an important aspect of the efficient functioning of the justice system that a judgment is final once an appeal window closes.
I am satisfied that the respondent will suffer prejudice if an extension of time is granted.
In my view, the prejudice to the applicant if an extension of time is not granted slightly outweighs the prejudice to the respondent if an extension of time is granted. I am swayed by the applicant’s real attempt to file a notice of appeal within the statutory time limit, the fact that the respondent pointed to no particular prejudice beyond the usual prejudice of not being able to rely on a final order and that VCAT only finalised its order in relation to the costs of the VCAT proceeding on the same day the applicant filed his notice of appeal in this Court. This factor weighs slightly in favour of a grant of an extension of time.
Identified question of law and arguable case
The respondent submitted that the applicant’s five questions of law in his notice of appeal do not sufficiently identify questions of law which would entitle an appeal to be brought. The respondent said while the applicant was entitled to the Court’s latitude on account of being self-represented and because English is not his first language, the applicant’s questions of law were invalid as they amounted to a merit- and fact-based challenge of the VCAT decision.
The applicant’s first question of law was, did VCAT err in law by failing to give up relevant sworn evidence with respect to the orders of the fencing complaint and the dumping complaint. The respondent submitted that the applicant’s first question of law referred to evidence given by the applicant’s neighbour in a civil proceeding before the County Court of Victoria relating to the applicant and the neighbour. The respondent said VCAT considered this evidence and weighed it against the other evidence in the proceeding. The respondent submitted that this question did not sufficiently identify a valid question of law but rather appeared to challenge VCAT’s credibility and factual findings on the evidence.
The applicant’s second question of law was, did VCAT err in law by failing to identify the falsified evidence with respect to the order of the dumping complaint. The respondent submitted that this question referred to the applicant’s allegations in the VCAT proceeding that the respondent had fabricated emails. VCAT considered and rejected the applicant’s allegation in its reasons, finding the allegation was not proven. Again, the respondent submitted that this question did not sufficiently identify a valid question of law but rather appeared to challenge VCAT’s factual findings on the evidence.
The applicant’s third question of law was, did VCAT err in law by failing to verify the truth and consequently to use the falsified evidence with respect to the order of the dumping complaint. The respondent submitted that this was not a question of law but rather sought to challenge VCAT’s factual findings on the evidence.
The applicant’s fourth question of law was, did VCAT err in law by failing to apply principles 2.1 and 4.1 of the IPP with respect to the order of alleged inappropriate disclosures to the neighbours and alleged inappropriate disclosure to journalist. The respondent submitted that VCAT provided detailed reasons to support its findings that the respondent had not inappropriately disclosed information to the applicant’s neighbour or to a journalist. The respondent said that by this question the applicant is asking the Court to consider whether the IPP was correctly applied by VCAT without identifying how VCAT erred in its application of the IPP. This was not a valid question of law but rather, according to the respondent, another example of the applicant seeking to challenge VCAT’s factual findings. The respondent submitted that VCAT set out the IPP in its reasons and then explicitly applied it in respect of the respondent’s emails and letter to the neighbours and its email to the journalist. In each case, VCAT found that the respondent had not breached the IPP.
The applicant’s fifth question of law was, did VCAT err in law by failing to apply principle 1.2 of the IPP and s 228E(2) of the Building Act 1993 (Vic) with respect to the order of alleged unfair and unlawful collection of personal information by trespass. The respondent submitted that VCAT’s reasons explicitly considered the applicant’s allegations that the respondent had unfairly and unlawfully collected his personal information by trespass and using a security service. Again, the respondent said the applicant had not identified any alleged error by VCAT in its application of the IPP and that this question really sought to challenge factual findings made by VCAT. Accordingly, the respondent submitted this question does did not identify a valid question of law.
The applicant’s written and oral submissions consisted almost entirely of a recitation of the evidence before VCAT. For example, in relation to the alleged unfair and unlawful collection of personal information by trespass, the applicant’s written submissions were:
On 6 April, 18 April, 30 April, 7 May and 17 May 2018, the council illegally trespassed my house by Shaun Dixon, Luigi Vanzin, Matthew Harvey, and Clair Benzie without consent of the owner and notification which breached Section 228E(2) of the Building Act 1993. I only know they trespass my property from FOI and charge-sheet and summons of Magistrates Court. The council had an unfair and unlawful collection of personal information by trespass which breached S1.2 of Schedule 1 (Information Privacy Principles) of Privacy and Data Protection Act 2014 (Vic).
During the course of the hearing the Court asked the applicant to explain the errors of law the applicant alleged VCAT had made. In response the applicant referred to VCAT’s finding that the neighbour’s evidence in the County Court proceeding was unreliable. The applicant said his neighbour’s evidence in the County Court was clear, strong and damning and that VCAT’s rejection of this evidence was not fair: ‘I say this is a strong and damn[ing] evidence. You [VCAT] say it’s not trustable. I can’t accept it. Yeah, I can’t accept it, yeah. Yep.’
While the subject matter under each heading of the applicant’s written submissions was different, in each case the applicant set out the facts he considered relevant to the issue. At no point did the applicant attempt to identify particular passages or paragraphs of the VCAT reasons that he said were wrong or how VCAT erred in law.
The applicant’s grounds in his notice of appeal consisted of references to various parts of legislation. The applicant’s grounds of appeal did not assist the Court to understand how the applicant alleged VCAT had erred in law.
After considering the terms of the applicant’s notice of appeal and his submissions, both oral and written, I understood the applicant’s case to be that VCAT erred because the applicant’s evidence should have been accepted. This does not identify an error of law by VCAT. Pursuant to r 4.08 of the Rules, the Court may dismiss an application for an extension of time if it is satisfied that the notice of appeal does not identify sufficiently or at all a question of law on which the proposed appeal may be brought. I am satisfied that this is the case with the applicant’s notice of appeal.
During the course of the hearing the applicant said that identifying a question of law and grounds of appeal is very complicated. I agree and accept that the task may be even more difficult for a non-lawyer working in a language that is not his first language. In my view, however, the bases for the applicant’s notice of appeal were his disagreement with the factual findings of VCAT, rather than errors or questions of law. As such, despite other factors favouring the grant of an extension of time to the applicant, it is my opinion that the appeal itself is so devoid of merit that to grant an extension of time would be futile.
Conclusion
I am satisfied that the issues raised by the applicant in his notice of appeal are not questions of law, and as such even if the applicant had made an application within the statutory 28-day time limit, his application would have been bound to fail. I will order that the applicant’s application for an extension of time to file a notice of appeal be dismissed. I will hear from the parties on the question of costs.
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