Kaur v RMIT

Case [2024] VSCA 264

SUPREME COURT OF VICTORIA

COURT OF APPEAL
S EAPCI 2024 0064
DILPREET KAUR Applicant
v
ROYAL MELBOURNE INSTITUTE OF TECHNOLOGY Respondent

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JUDGES: WALKER JA
WHERE HELD: Melbourne
DATE OF HEARING: Determined on the papers 
DATE OF JUDGMENT: 11 November 2024
MEDIUM NEUTRAL CITATION: [2024] VSCA 264
JUDGMENT APPEALED FROM: (Ruling, Supreme Court of Victoria, Watson J, 21 June 2024)  

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PRACTICE AND PROCEDURE – Where application for leave to appeal from Victorian Civil and Administrative Tribunal to Supreme Court had been dismissed – Whether appeal raised question of law – No question of law – Application for leave to appeal to Court of Appeal totally without merit – Application for leave to appeal refused.

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Counsel
Applicant: In person
Respondent: S Kelly

Solicitors
Applicant: Not applicable
Respondent: Hall & Wilcox

WALKER JA:

  1. The applicant, Dilpreet Kaur, was a student at the respondent, the Royal Melbourne Institute of Technology (‘RMIT’) in the School of Health Science. She was enrolled in a Bachelor of Nursing degree. It was a requirement of that degree that she complete a clinical placement, which was to be undertaken with a third party provider. On two occasions Ms Kaur attempted the placement and, on each occasion, the third party provider terminated it early. As a result, Ms Kaur failed the clinical placement requirement. RMIT then sought to terminate Ms Kaur’s enrolment.

  2. Ms Kaur was unhappy about the proposed termination of her enrolment. She filed two proceedings in the Victorian Civil and Administrative Tribunal (‘VCAT’ or the ‘Tribunal’). The first proceeding alleged that RMIT had breached the Australian Consumer Law (Victoria). The second proceeding alleged unlawful discrimination on the part of RMIT.

  3. Following a compulsory conference and negotiations between the parties over several months, Ms Kaur and RMIT entered into a deed of settlement (the ‘Deed’). During the negotiations Ms Kaur received advice from her union and from Gordon Legal concerning the terms of the Deed. A term of the Deed was that the VCAT proceedings would be struck out, with a right reserved to Ms Kaur to apply for reinstatement. It was also a term of the Deed that RMIT would use its best endeavours to arrange a further placement for Ms Kaur, to allow her to make a further attempt to pass the clinical placement requirement and complete her degree.

  4. On 23 July 2018, the Tribunal made an order that the ‘proceeding is struck out with a right to apply for reinstatement’.[1] That order was consistent with the terms of the Deed.

    [1]The order was sought by RMIT in correspondence sent to the Tribunal. The Tribunal wrote to Ms Kaur to give her an opportunity to be heard about the strike out, but she did not avail herself of that opportunity.

  5. On 20 February 2019, the respondent notified Ms Kaur that it had not been able to secure a further placement for her.

  6. On 15 October 2020, Ms Kaur filed a new initiating application form with VCAT, without assistance from a legal practitioner. The…

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AGLC
Kaur v RMIT [2024] VSCA 264
Case
[2024] VSCA 264
Decision Date

CaseChat Overview and Summary

The case of Kaur v RMIT involves an appeal by Ms Kaur against the decision of the Supreme Court of Victoria, which had dismissed her application for leave to appeal from a decision of the Victorian Civil and Administrative Tribunal (VCAT). The primary legal issues that the court was required to address centred on whether the appeal raised a question of law, whether the application for leave to appeal was totally without merit, and whether there were procedural errors or omissions by VCAT or the Court that affected the fairness of the hearings.

The Court of Appeal held that the appeal did not raise a question of law and was totally without merit. Ms Kaur argued that new evidence regarding her mental health and visa situation, which was not considered by VCAT or the Supreme Court, was crucial for a fair review of her case. However, the court found that the trial judge had the discretion to decide whether to permit further evidence on the hearing of the appeal and that Ms Kaur had not advanced any error by the judge in the exercise of that discretion. Additionally, the court found that the proposed grounds of appeal concerning Ms Kaur's capacity to enter into the deed did not raise any question of law.

Regarding the alleged procedural errors or omissions, the court concluded that there was no basis for an argument that there was a breach of procedural fairness by either the judge or the Tribunal Member. The court found that Ms Kaur was given an opportunity to present her case, both in writing and orally, by the Tribunal and by the Court.

The final orders of the Court of Appeal were that the application for leave to appeal to the Court of Appeal was totally without merit and was dismissed with costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In her ‘Notice of Appeal’ document she made the following submissions relevant to these grounds:New evidence about Ms. Kaur’s mental health problems during her placements and the stress from her visa situation was not considered by VCAT or the Supreme Court. This evidence is important for a fair review of her case, as it affects her ability to make decisions.Case References:· Papaconstuntinos v Holmes a Court (2012) 249 CLR 534 – New facts can be important in appeals.· CDJ v VAJ (1998) 197 CLR 172 – The High Court accepted new evidence in an appeal, showing its importance.Failure to Accept New Evidence and Special Circumstances: The Supreme Court did not accept new evidence regarding Ms. Kaur's capacity and the pressure she was under. This new evidence is crucial and should be considered under special circumstances, as Federal Court precedents allow. This includes the following High Court of Australia cases where new evidence was admitted:[[25]]· Smith v New South Wales Bar Association (1992) 176 CLR 256· Whisprun Pty Ltd v Dixon (2003) 200 ALR 447[25]As noted above, citations to non-existent cases have been omitted. The trial judge had a discretion as to whether to permit Ms Kaur to adduce further evidence on the hearing of her appeal from the Tribunal. Thus an appeal in relation to that aspect of his Honour’s decision is subject to the standard of review identified by the High Court in House v The King.[26] [26](1936) 55 CLR 499; [1936] HCA 40. Ms Kaur has not advanced any error by the judge in the exercise of the discretion. Given that the new evidence was available to Ms Kaur at the time of the Tribunal proceeding, and given that, as the judge concluded, her proposed ground of appeal concerning her capacity to enter into the deed did not raise any question of law, it was plainly open to the judge to exercise the discretion by refusing leave to rely on the new evidence. Thus grounds 3, 4 and 8 have no prospects of success.Ground 9: procedural errors or omissions by VCAT or by the Court? Ground 9 was directed at ‘procedural errors or omissions’ by VCAT or the judge. Ms Kaur’s written case set out her submissions on this ground as follows:Issue: There might have been procedural errors or omissions by VCAT or the Supreme Court that affected the fairness of the hearings.Key Points:· Procedural fairness requires adherence to legal standards and proper conduct during hearings.· Any errors or omissions can undermine the fairness and outcome of the case.· Reviewing these potential issues is crucial for ensuring justice. Ms Kaur did not point to any particular step that either VCAT or the Court took that constituted a breach of procedural fairness. She was plainly given an opportunity to present her case, both in writing and orally, by the Tribunal and by the Court. I can discern no basis for an argument that there was breach of procedural fairness by either the judge or the Tribunal Member. This ground has no prospects of success.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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