Kaur v RMIT
[2024] VSCA 264
•11 November 2024
| 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:
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.
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.
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.
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.
On 20 February 2019, the respondent notified Ms Kaur that it had not been able to secure a further placement for her.
On 15 October 2020, Ms Kaur filed a new initiating application form with VCAT, without assistance from a legal practitioner. The Tribunal treated the new form as an application for reinstatement of the earlier proceedings. The Tribunal listed a directions hearing on 14 April 2021 for the purpose of hearing Ms Kaur’s application for reinstatement. Neither party appeared on that date and the presiding Member confirmed the order of 23 July 2018.
On 11 November 2021, Ms Kaur applied to reinstate the proceeding, enclosing a doctor’s report dated 22 April 2021, which the Tribunal considered could be seen as explaining her failure to appear at the directions hearing on 14 April 2021. Ms Kaur also provided a typed narrative of six pages setting out the grounds of her application for reinstatement. Following various case management steps, a reinstatement hearing was set down for 9 May 2023.
By January 2023 Ms Kaur had engaged legal practitioners. They filed points of claim, which made no reference to the Deed. They also filed written submissions in relation to the reinstatement of the proceedings and submitting that the Deed should be set aside.
On 14 December 2023, VCAT dismissed Ms Kaur’s application for reinstatement of the proceedings. The Member said that he did not consider that Ms Kaur demonstrated that the Deed should be set aside or that the proceeding should be reinstated.[2]
[2]Kaur v Royal Melbourne Institute of Technology [2023] VCAT 1400 (‘VCAT Reasons’).
Ms Kaur then sought to appeal the VCAT decision in the trial division of this Court. An appeal from VCAT to this Court lies only in relation to a question of law.[3] Watson J held that none of Ms Kaur’s grounds of appeal raised a question of law; thus her appeal was bound to fail and her application for leave to appeal should be dismissed.[4]
[3]Victorian Civil and Administrative Tribunal Act 1998, s 148.
[4](Ruling, Supreme Court of Victoria, Watson J, 21 June 2024).
Ms Kaur now seeks leave to appeal from Watson J’s decision.
On 17 September 2024, the Registrar of the Court of Appeal referred Ms Kaur’s application for leave to appeal to me to determine pursuant to r 64.15 of the Supreme Court (General Civil Procedure) Rules 2015 (the ‘Rules’). Having considered the materials filed by the parties,[5] I have determined, pursuant to s 14D(3) of the Supreme Court Act 1986 and r 64.15(5)(iv) of the Rules, that the application for leave to appeal is totally without merit. The application must thus be refused. My reasons are set out below.
[5]Having regard to r 64.15(2), I did not consider that an oral hearing was necessary or desirable; thus I did not direct that there be an oral hearing.
The Tribunal’s decision
The Tribunal set out the lengthy history of the proceeding. The Member summarised the written submissions filed by Ms Kaur’s legal representatives as follows:[6]
[6]VCAT Reasons, [17].
a)RMIT breached, or did not fully comply with, its obligations under the Deed;
b)Ms Kaur felt highly pressured to sign the Deed, pursuant to interactions with the member who conducted the compulsory conference and with RMIT’s representatives and Ms Kaur’s union after the compulsory conference;
c)Ms Kaur would not have signed the Deed had she understood there was a “real possibility” of not being provided a placement;
d)there was never a genuine prospect of Ms Kaur being provided with a placement;
…
i)if the Tribunal set aside the Deed, it should then reinstate the proceeding so that Ms Kaur’s rights could be determined by the Tribunal. …
The Tribunal noted that many of the above points concerned Ms Kaur’s subjective perceptions of events. The Tribunal observed that the law of contract focuses on objective meanings rather than on the subjective perceptions of a party. It considered that these contractual principles created ‘significant barriers to Ms Kaur’s application’.[7]
[7]VCAT Reasons, [19].
The Tribunal then set out at some length the written submissions made on Ms Kaur’s behalf. It dealt first with the submission that VCAT had jurisdiction to set aside a deed of settlement. In the course of its discussion of Ms Kaur’s submissions concerning whether the Deed could be set aside, the Tribunal quoted from the decision of the High Court in Harvey v Phillips:
The question whether the compromise is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like.[8]
[8](1956) 95 CLR 235, 243–4 (Dixon CJ, McTiernan, Williams, Webb and Fullagar JJ); [1956] HCA 27.
In relation to Ms Kaur’s circumstances, the Tribunal observed as follows:
[Ms Kaur] did not settle at the door of the Court under great pressure. She attended a compulsory conference, which was twice adjourned to administrative mentions because written terms of settlement were being negotiated. Ms Kaur’s affidavit and written submissions do not suggest that she was placed under pressure to settle in any way similar to the pressure which the High Court said was applied to Ms Harvey. Ms Kaur did not give her consent to settle for a short period of time – the gap between the compulsory conference and the date she signed the Deed was around 10 weeks.[9]
[9]VCAT Reasons, [50].
The Tribunal also dealt with two other authorities on which Ms Kaur relied: Herald v Weekly Times v State of Victoria[10] and Tucci v Victorian Civil and Administrative Tribunal.[11] It concluded that these cases did not assist Ms Kaur.[12]
[10](2006) 25 VAR 124; [2006] VSCA 146.
[11][2010] VSC 425.
[12]VCAT Reasons, [43], [56].
The Tribunal then observed that Ms Kaur submitted that the Deed should be set aside for two reasons:
(a)first, on the basis of innocent misrepresentation, in that RMIT represented to Ms Kaur that the placement could be in an acute health, mental health or another specialty health area, despite RMIT ultimately stating that Ms Kaur would only be put forward for placement in an acute health setting; and
(a)alternatively, on the basis that RMIT breached its contractual obligation under the Deed to use its best endeavours to secure the placement for Ms Kaur — she alleged that RMIT gave up after one attempt at finding a placement, and did not act expeditiously enough in order to seek a placement in the second half of 2018.[13]
[13]VCAT Reasons, [57]–[59].
The Tribunal set out RMIT’s submissions in response:
(a)In relation to whether the Deed should be set aside, RMIT conceded that, as a matter of jurisdiction, VCAT ‘could’ set aside the Deed. However, it submitted, referring to Harvey v Phillips, that VCAT ‘does not simply have a discretion to rescind a settlement’ that is made with actual authority. It pointed out that Ms Kaur had signed the Deed herself, after receiving legal advice. It submitted that the question of whether a compromise could be set aside depends on the existence of a ground which would suffice to render a contract void or voidable or entitle a party to equitable relief. It submitted that there were no such grounds in this case, such as illegality, misrepresentation, non-disclosure of material fact where disclosure was required, duress, mistake, undue influence, abuse of confidence or the like; nor were there grounds which would justify equitable relief being granted.[14]
(b)In relation to breach of the Deed, RMIT submitted that this could give rise to a separate proceeding by Ms Kaur against RMIT (which would be defended) and should not be considered as a ground for reinstating the proceeding.[15]
(c)RMIT further submitted that an important aspect of the Deed, in relation to which Ms Kaur had made no submissions, was that clauses 4.1 and 4.3 stated that she released RMIT from all claims or causes of action against RMIT, and that the Deed may be pleaded in bar to any proceedings in respect of any matter from which RMIT has been released. RMIT submitted that the Deed amounted to an accord and satisfaction of Ms Kaur’s claims against it.[16]
[14]VCAT Reasons, [61]–[63].
[15]VCAT Reasons, [60].
[16]VCAT Reasons, [64]–[65].
The Tribunal then set out its reasons for dismissing the application for reinstatement, as follows:
It will be apparent to the reader that I accept RMIT’s submissions. I do not consider that Ms Kaur demonstrated that the Deed should be set aside or that the proceeding should be reinstated. She made no submissions in relation to the release or the acknowledgement contained in clauses 4.1 or 5.2 of the Deed. They are important, express provisions and they cannot simply be ignored.
Ms Kaur acknowledged that she had negotiated the Deed with the assistance of her union and Gordon Legal over a period of around two months after the compulsory conference, that she had read the Deed before signing it, and it is plain that her statements of belief or interpretation of the Deed are inconsistent with the express words of the Deed. Ms Kaur merely asserted that RMIT had not used its best endeavours, but that is not proof. Nor is it a situation in which asserting that best endeavours were not used could justify the Tribunal setting aside a Deed of settlement which had been executed freely by the parties in order to allow an enquiry to be carried out to see whether in fact best endeavours had not been used.
I do not accept Ms Kaur’s submission that RMIT made an innocent misrepresentation to Ms Kaur in the Deed itself.
I acknowledge Ms Kaur’s description of the events and experiences she has gone through in the last few years, but such circumstances do not give the Tribunal a discretion to set aside a Deed in which legal proceedings were settled. There is an important public interest in the finalisation of litigation, and where parties participate in a compulsory conference, then negotiate a written Deed of settlement over a period of months, and execute that Deed, a party is not able to simply have the Deed set aside.[17]
[17]VCAT Reasons, [67]–[70].
The judge’s decision
In her notice of appeal from the Tribunal’s decision, Ms Kaur identified three questions of law:
(1)Is the matter decided on merit?
(2)Has the Contractual principle applied properly?
(3)Is the conduct of the respondent in making and executing of the deed, reasonable?
The primary judge held, without elaboration, that neither question 1 nor question 3 raised a question of law. His Honour said that question 2 ‘might possibly’ raise a question of law. The judge then set out Ms Kaur’s arguments about why VCAT erred in relation to question 2, which were, in summary, as follows:
(a)First, the Deed should not be enforced because it was drafted by RMIT and Ms Kaur was unable to substantially amend or modify it.
(b)Secondly, the Deed provided no consideration.
(c)Thirdly, the Deed was unfair to Ms Kaur and biased in favour of RMIT.
(d)Fourthly, Ms Kaur did not understand properly the terms of the Deed — had she understood them, she would not have signed it.
(e)Fifthly, Ms Kaur said she was pressured by the VCAT member and/or RMIT to agree to the Deed.
(f)Sixthly, Ms Kaur lacked capacity to enter the Deed.
(g)Seventhly, RMIT did not in fact use its best endeavours to find a placement for her and therefore it had breached the Deed, and that means the Deed should not be enforced.
In relation to these arguments, the judge observed that, with the exception of the argument about lack of capacity, they were all considered by the VCAT Member, who made findings of fact which were open on the evidence. His Honour held that, insofar as Ms Kaur sought to reagitate those factual matters, she did not raise any question of law. He also observed, for completeness, that the first three arguments provided no basis for refusing to enforce the Deed.
In relation to the sixth matter — Ms Kaur’s alleged lack of capacity — the judge observed that Ms Kaur had not raised a lack of capacity before VCAT. She sought in her appeal to rely on evidence which was not before VCAT in support of that proposition. The judge held that the further evidence should not be admitted. He also held that this ground of appeal did not raise a question of law, but merely sought a different finding of fact, based on evidence that was not before VCAT.
Ms Kaur’s proposed grounds of appeal in this Court
In Ms Kaur’s application for leave to appeal she identified the following proposed grounds of appeal in this Court:[18]
[18]Ms Kaur’s grounds were not numbered; I have assigned them numbers for the purposes of these reasons.
Was Ms. Kaur’s agreement to the Deed of Settlement valid, considering the pressure, stress, and bullying she faced? [Ground 1]
Did the unclear terms and misunderstandings regarding RMIT’s obligations constitute a violation of contract law? [Ground 2]
Is the new evidence concerning Ms. Kaur’s mental health and visa stress critical for a fair review of her capacity and the agreement process? [Ground 3]
Was there unfair treatment in how the courts handled the evidence and testimonies regarding Ms. Kaur’s experiences? [Ground 4]
Did the failure to provide proper legal advice and support to Ms. Kaur affect her ability to make an informed decision? [Ground 5]
Did the courts fail to recognize and properly apply the principles of undue influence and coercion in Ms. Kaur’s case? [Ground 6]
Was the process of signing the Deed of Settlement fair and free from manipulation or coercion by RMIT and VCAT? [Ground 7]
Did the courts give due consideration to the impact of external pressures, such as visa stress and mental health issues, on Ms. Kaur’s decision-making capacity? [Ground 8]
Were there any procedural errors or omissions by VCAT or the Supreme Court that affected the fairness of the hearings? [Ground 9]
Did the courts adequately assess the credibility and reliability of the evidence presented by Ms. Kaur regarding her mental health and the pressures she faced? [Ground 10]
Consideration
Error by the primary judge?
Ms Kaur’s proposed grounds of appeal do not clearly articulate any error by the primary judge. However, I am prepared to take into account the fact that the notice of appeal appears not to have been drafted by a person with legal qualifications or training. Thus I will approach what are posed as questions as assertions of error, to be read in light of Ms Kaur’s written submissions. I will undertake that exercise by considering the proposed grounds together with the associated arguments found in Ms Kaur’s other written materials that she filed with her application for leave to appeal.[19]
Grounds 1, 6 and 7: alleged pressure, stress, bullying, undue influence, coercion and manipulation
[19]I note that several of these documents appeared to have been drafted with the assistance of a large language model artificial intelligence (‘LLM AI’), such as ChatGPT. In particular, they contained some case citations to cases that do not exist. I have not reproduced those citations, lest they contribute to the problem of LLM AI inventing case citations.
It is convenient to deal with grounds 1, 6 and 7 together, because they each concern assertions that RMIT and/or VCAT engaged in some form of improper behaviour that could affect the validity of the Deed.
Ground 1 concerned the allegation that Ms Kaur’s agreement to the Deed was not valid as a consequence of ‘the pressure, stress, and bullying’ she said that she faced. Ms Kaur’s written case contained the following submissions:
Issue: Ms. Kaur’s agreement to the Deed of Settlement might be invalid due to the significant pressure, stress, and bullying she faced.
Key Points:
· Ms. Kaur was under immense stress from her visa situation, which compounded the pressure she faced from RMIT and VCAT.
· The circumstances under which the Deed was signed indicate potential undue influence and coercion, affecting her capacity to make a free and informed decision.
· Legal precedents highlight that agreements made under duress or significant pressure can be deemed invalid.
In addition, in another document entitled ‘Notice of Appeal’, Ms Kaur’s submissions on these issues were as follows:
Ms. Kaur was under a lot of stress and faced bullying during her placements. RMIT and VCAT also pressured her to sign the Deed. This affected her mental state and decision making, making her agreement to the Deed invalid.
Case References:
Johnson v Buttress (1936) 56 CLR 113 – Agreements are not valid if made under undue pressure.
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 – Pressure that takes advantage of someone’s weakness can make an agreement invalid.
Bridgewater v Leahy (1998) 194 CLR 457 – Emotional dependence and trust can make an agreement invalid due to undue pressure.
Ground 6 concerned the allegation that ‘the courts failed to recognize and properly apply the principles of undue influence and coercion in Ms. Kaur’s case’. In terms it might be thought to suggest an error on the part of the judge. Ms Kaur’s submissions on this ground were as follows:
Issue: The courts might have failed to recognize and properly apply the principles of undue influence and coercion in Ms. Kaur’s case.
Key Points:
· Undue influence and coercion can invalidate agreements if they compromise an individual’s free will.
· Ms. Kaur’s situation suggests potential undue influence and coercion by RMIT and VCAT.
· The courts should thoroughly assess these principles to ensure justice.
Ms Kaur did not clearly identify how she says that the principles of undue influence applied in her case, or what conduct amounted to undue influence or coercion. Furthermore, the legal principles relevant to undue influence were not in question — rather, the Tribunal decided that, as a matter of fact, Ms Kaur was not subject to any undue influence or, implicitly, any coercion. An appeal from that finding was not an appeal on a question of law.
Ground 7 concerned the allegation that the process of signing the Deed was not ‘fair and free from manipulation or coercion by RMIT and VCAT’. Ms Kaur’s written submissions on this ground were as follows:
Issue: The process of signing the Deed of Settlement might not have been fair and free from manipulation or coercion by RMIT and VCAT.
Key Points:
· The circumstances and process under which the Deed was signed indicate potential manipulation or coercion.
· Fairness in contract law requires voluntary and informed consent without external pressures.
· Any manipulation or coercion can render the agreement invalid.
None of these grounds identify any error on the part of the judge. Rather, they are directed to re-litigating the merits of Ms Kaur’s claim. Furthermore, as the judge observed, the Tribunal made relevant findings of fact concerning Ms Kaur’s entry into the Deed, which I shall set out again for completeness:
[Ms Kaur] did not settle at the door of the Court under great pressure. She attended a compulsory conference, which was twice adjourned to administrative mentions because written terms of settlement were being negotiated. Ms Kaur’s affidavit and written submissions do not suggest that she was placed under pressure to settle in any way similar to the pressure which the High Court said was applied to Ms Harvey. Ms Kaur did not give her consent to settle for a short period of time – the gap between the compulsory conference and the date she signed the Deed was around 10 weeks.[20]
[20]VCAT Reasons, [50].
Thus the judge was correct to conclude that this aspect of Ms Kaur’s case did not raise a question of law. That is, the legal principles relevant to the validity of the Deed were not in question — rather, the Tribunal decided that, as a matter of fact, Ms Kaur was not subject to any relevant pressure, duress, coercion, undue influence, manipulation etcetera. An appeal from that finding was not an appeal on a question of law.
Ground 5: alleged lack of legal advice
It is convenient to turn next to ground 5, which concerned the allegation that ‘the failure to provide proper legal advice and support to Ms. Kaur’ affected ‘her ability to make an informed decision’. Ms Kaur’s written case set out her submissions on this ground as follows:
Issue: The failure to provide proper legal advice and support to Ms. Kaur affected her ability to make an informed decision.
Key Points:
· Ms. Kaur did not receive adequate legal advice, impacting her understanding of the Deed’s implications.
· Proper legal support is crucial for ensuring that individuals can make informed and voluntary decisions.
· The absence of legal advice can result in decisions being made under misinformation or misunderstanding.
The legal principles relevant to Ms Kaur’s ability to make an informed decision were not in question — rather, the Tribunal decided that, as a matter of fact, Ms Kaur in fact had proper legal advice and support. It said this:
Ms Kaur acknowledged that she had negotiated the Deed with the assistance of her union and Gordon Legal over a period of around two months after the compulsory conference, [and] that she had read the Deed before signing it ….[21]
[21]VCAT Reasons, [68].
An appeal from that finding was not an appeal on a question of law. In any event, it is plain that Ms Kaur in fact received legal advice.
Ground 2: unclear terms and misunderstandings concerning RMIT’s obligations under the Deed
Ground 2 concerned what Ms Kaur described as ‘unclear terms’ of the Deed and ‘misunderstandings’ (presumably her own) about what RMIT would be obliged to do to perform its obligations under the Deed. Ms Kaur’s written case on ground 2 was as follows:
Issue: Unclear terms and misunderstandings regarding RMIT’s obligations might constitute a violation of contract law.
Key Points:
· The terms of the Deed of Settlement were ambiguous, leading to misunderstandings about the obligations of RMIT.
· Contract law requires clarity in terms and mutual understanding for an agreement to be valid.
· Misleading or unclear terms can result in a contract being void or voidable.
In her ‘Notice of Appeal’ document her written submissions on this ground were as follows:
The Deed had unclear terms, especially the ‘best endeavours’ clause. This led to misunderstandings about RMIT’s responsibilities, which were not clearly explained to Ms. Kaur.
Case references:
· Oscar Chess Ltd v Williams [1957] 1 WLR 370 – Misunderstandings about important facts can make an agreement invalid.
· Redgrave v Hurd (1881) 20 Ch D 1 – An agreement can be invalid if based on false statements.
Again, this ground does not allege any particular error by the trial judge. Rather, Ms Kaur appears to assert that she misunderstood the terms of the Deed, and that its terms and effect were not clearly explained to her.
As the Tribunal observed, Ms Kaur’s submissions before it (filed by her then legal representatives) stated that the Deed contained the following provisions:
Clause 2.1(d)(ii) RMIT shall use its best endeavours to arrange a Placement for [Ms Kaur] that is suitable for [Ms Kaur] on the terms to be agreed between RMIT and the third party health organisation.
Clause 2.1(d)(iii) RMIT cannot guarantee that it is able to obtain a Placement for [ Ms Kaur], at the time, dates and for the duration, and in the desired setting, required for her to complete her Program, but it will use its best endeavours to do so.[22]
[22]VCAT Reasons, [15] (emphasis added).
Ms Kaur also deposed, before the Tribunal, that after she received a draft of the Deed from RMIT, she corresponded with RMIT over a two month period negotiating amendments to the wording of the Deed. In that period she also received advice from her union and from the law firm Gordon Legal.[23] As explained in the Tribunal’s reasons, on 14 March 2018, RMIT emailed Ms Kaur, explaining RMIT’s obligations as follows:
“RMIT can use best endeavours to arrange a placement. RMIT cannot force a hospital/health organisation to take you for a placement – we are relying on a hospital/health organisation’s goodwill” and that “RMIT will use its best endeavours to do what it has agreed to do – but as you know some of the actions rely on third parties to do their bit and the successful outcome is obviously is [sic] heavily dependent on you participating in the process as we agreed”.[24]
[23]VCAT Reasons, [23].
[24]VCAT Reasons, [23].
In effect, as the judge found, the Tribunal rejected Ms Kaur’s factual contentions in this regard. The judge was correct to conclude that an appeal from the Tribunal’s factual findings was not an appeal on a question of law.
Grounds 3, 4 and 8: new evidence concerning visa stress and mental health issues
Grounds 3, 4 and 8 each appear to relate to the further evidence Ms Kaur sought to adduce before the trial judge concerning her mental health and what she described as ‘visa stress’. I note at the outset that this evidence was ‘new evidence’ not ‘fresh evidence’ — that is, it was evidence that was available to Ms Kaur at the time of the VCAT proceeding.
Ms Kaur’s written case dealt with the new evidence as follows:
3) Importance of New Evidence on Mental Health and Visa Stress
Issue: New evidence concerning Ms. Kaur’s mental health and visa stress is critical for a fair review of her capacity and the agreement process.
Key Points:
· Evidence of Ms. Kaur’s mental health issues and the stress related to her visa situation was not adequately considered.
· This new evidence is essential to reassess her capacity to consent to the Deed of Settlement.
· Legal standards demand a thorough examination of all relevant evidence, particularly in cases involving mental health.
4) Unfair Treatment by the Courts in Handling Evidence and Testimonies
Issue: There might have been unfair treatment in how the courts handled the evidence and testimonies regarding Ms. Kaur’s experiences.
Key Points:
· The courts may have dismissed or inadequately assessed the evidence and testimonies presented by Ms. Kaur.
· Fair treatment requires the courts to give due consideration to all evidence, ensuring a balanced and just review.
· Any bias or unfair dismissal of evidence can undermine the integrity of the judicial process.
…
8) Consideration of External Pressures on Decision-Making Capacity
Issue: The courts might not have given due consideration to the impact of external pressures, such as visa stress and mental health issues, on Ms. Kaur’s decision-making capacity.
Key Points:
· External pressures significantly affect an individual’s capacity to make informed decisions.
· The courts should consider these factors to ensure a fair assessment of Ms. Kaur’s consent.
· Ignoring these pressures can lead to an unjust conclusion.
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.
Ground 10: adequate assessment of evidence
Ground 10 asserted that ‘the courts’ did not ‘adequately assess the credibility and reliability of the evidence presented by Ms Kaur regarding her mental health and the pressures she faced’. It is not clear whether this ground was directed to the new evidence (which, as I have found, was properly excluded by the judge) or to the evidence more generally.
In her written case, Ms Kaur made the following submissions on this ground:
Issue: The courts might not have adequately assessed the credibility and reliability of the evidence presented by Ms. Kaur regarding her mental health and the pressures she faced.
Key Points:
· Proper assessment of evidence credibility and reliability is essential for a fair judgment.
· The courts should give due weight to credible evidence supporting Ms. Kaur’s claims.
· Dismissing or undervaluing such evidence can result in an unjust outcome.
In her ‘Notice of Appeal’ document, she added the following submissions:
4.1 VCAT and the Supreme Court did not consider all the evidence and circumstances, especially the pressures on Ms. Kaur and her mental health issues. This led to unfair treatment.
Case References:
· Dietrich v The Queen (1992) 177 CLR 292 – Fairness and impartiality are necessary in legal proceedings.
To the extent that this ground is directed to the new evidence, it is bound to fail once it is accepted that the judge’s decision to refuse leave to adduce further evidence was open to him and free from error.
To the extent that this ground is directed to other evidence adduced in the Tribunal proceeding and before the judge, there is simply nothing to suggest that either the Tribunal or the judge failed to consider the evidence properly before them. This ground, too, is doomed to fail.
Conclusion
I have concluded that none of Ms Kaur’s proposed grounds of appeal has any prospect of success. Furthermore, I consider that Ms Kaur’s application for leave to appeal is totally without merit. The application must thus be refused.
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