Jo-Anne Finch v The Heat Group Pty Ltd (ACN 092 941 430)
[2011] HCASL 139
JO-ANNE FINCH
v
THE HEAT GROUP PTY LTD (ACN 092 941 430) & ORS
[2011] HCASL 139
M34/2011
On 29 June 2010, the Victorian Civil and Administrative Tribunal ("the Tribunal") (Harbison VP) dismissed the applicant's complaints against the respondents of sexual discrimination, harassment and victimisation under the Equal Opportunity Act 1995 (Vic) ("the substantive decision"). The applicant unsuccessfully sought to appeal to the Victorian Court of Appeal and to this Court, where special leave to appeal was refused: Finch v The Heat Group Pty Ltd & Ors [2011] HCASL 117.
On 31 January 2011, the Tribunal (Harbison VP) ordered that the applicant pay two-thirds of the first respondent's taxed costs of the substantive decision pursuant to s 109 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ("VCAT Act") ("the costs decision"). Her Honour held that although the usual rule under that provision was that each party should bear its own costs, it was appropriate to depart from that rule in the circumstances having regard to a series of factors set out in s 109(3) of the VCAT Act. Her Honour held that the applicant's lack of familiarity with her witness statements and the particulars of her claim, her pursuit of matters of no or marginal relevance, her delays in filing and failure to properly provide particulars, and her non-compliance with orders of the Tribunal, extended the length of the trial and complicated the pre-trial process. The first respondent was entitled to an award of costs to that extent.
On 8 April 2011, the Victorian Court of Appeal (Tate JA and Hargrave AJA) rejected the applicant's application for leave to appeal to that Court against the costs decision on a question of law pursuant to s 148(1)(a) of the VCAT Act. Tate JA (with whom Hargrave AJA agreed) held that the majority of the grounds of appeal did not raise questions of law as they went to factual findings about the cause and length of delays during the proceedings culminating in the substantive decision ("substantive proceedings"). To the extent that questions of law were raised, the grounds of appeal were unmeritorious. Harbison VP's findings that the applicant was not a credible witness was directly relevant to the discretion to award costs under s 109 of the VCAT Act. In making the award of costs, Harbison VP did not fail to take account of the purposes of the Tribunal. Further, Harbison VP's refusal during the trial of the substantive proceedings to grant the applicant an adjournment of the length sought was an exercise of discretion which was open to her Honour.
In this Court, the applicant has not advanced any questions of law that would justify a grant of special leave and the appeal proposed enjoys no prospects of success. The application concerns the exercise of discretion on a matter of practice and procedure.
Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.
W.M.C. Gummow S.M. Kiefel 8 September 2011
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