Leung v Chung - [2023] VSC 38

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

EMPLOYMENT AND INDUSTRIAL LIST

S ECI 2022 01455

LEUNG, HOI YEE (ZOEY)	Applicant
v
CHUNG, SHU FUNG (BILLY)	Respondent

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JUDGE:	McDonald J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 November 2022
DATE OF JUDGMENT:	10 February 2023
CASE MAY BE CITED AS:	Leung v Chung
MEDIUM NEUTRAL CITATION:	[2023] VSC 38

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ADMINISTRATIVE LAW – Application for leave to appeal from orders of the Victorian Civil and Administrative Tribunal (‘Tribunal’) – Applicant’s contention that Tribunal’s award of damages for conduct constituting sexual harassment was manifestly inadequate – Whether manifest inadequacy of damages constitutes a question of law – Whether Senior Member failed to have regard to the objective impact of contravening conduct upon the applicant – Whether Senior Member misapprehended medical evidence concerning the impact of contravening conduct upon the applicant – Whether Senior Member applied incorrect test regarding availability of aggravated damages – Whether proceeding should be remitted to Tribunal for further hearing – Application for leave to appeal granted and appeal upheld – Equal Opportunity Act 2010 ss 93, 95, 125 – Victorian Civil and Administrative Tribunal Act 1998 s 148.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	M J Latham	Anderson Gray Lawyers
For the Respondent	A J O’Callaghan	MTH Lawyers

HIS HONOUR:

Introduction

On 30 March 2022 a Senior Member of the Victorian Civil and Administrative Tribunal (‘Tribunal’) published reasons (‘Reasons’) in proceeding number H302/2020 (‘Tribunal proceeding’).[1] The Senior Member found that Mr Billy Chung (‘Respondent’) had contravened s 93 of the Equal Opportunity Act 2010 (‘EO Act’) by sexually harassing Ms Zoey Leung (‘applicant’) who was another employee of his employer. The Senior Member made orders (‘Orders’) pursuant to s 125 of the EO Act that the Respondent pay to the applicant the sum of $10,000 in general damages, and that the applicant’s claims for specific and aggravated damages be dismissed.
[1]Leung v Chung (Human Rights) [2022] VCAT 216 (‘Reasons’).

On 26 April 2022, the Applicant filed a notice of appeal pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’) against the Orders. On 3 November 2022, the Court heard the application for leave to appeal and the appeal concurrently.

The Applicant seeks leave to appeal and for Orders 1 and 2 of the Orders to be set aside. The Applicant seeks orders that the Respondent pay to the applicant $80,000 in general damages, $53,050.95 in special damages and $20,000 in aggravated damages. Alternatively, the applicant seeks orders remitting the proceeding to the Tribunal for a rehearing on loss and damage.

Background

The Applicant commenced employment as a fulltime production coordinator for Gumboots Australia Pty Ltd (‘Company’) on 19 August 2019. At that time the Respondent was the production manager for the Company and the Applicant’s direct manager.

In the Tribunal proceeding, the Applicant alleged that the Respondent contravened s 93 of the EO Act by subjecting her to several instances of…

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 Leung v Chung

Details

AGLC: Leung v Chung [2023] VSC 38
Case: [2023] VSC 38
Decision Date: 10 February 2023

CaseChat Overview and Summary

The case of Leung v Chung involves an application for leave to appeal from the orders of the Victorian Civil and Administrative Tribunal. The applicant, Leung, contends that the damages awarded for conduct constituting sexual harassment were manifestly inadequate. Leung sought leave to appeal the Tribunal’s decision, arguing that the Tribunal had failed to consider the full impact of the contravening conduct and misapplied the law regarding the award of aggravated damages.

The central legal issues before the court were whether the manifest inadequacy of damages constitutes a question of law and if the Senior Member of the Tribunal had failed to properly consider the objective impact of the contravening conduct on Leung. Additionally, it was questioned whether the Senior Member had misapprehended the medical evidence presented and applied an incorrect test for the availability of aggravated damages. The court was also required to determine if the proceeding should be remitted to the Tribunal for a further hearing.

The court held that the manifest inadequacy of damages could indeed be considered a question of law, and that the Senior Member had failed to adequately consider the objective impact of the contravening conduct upon Leung. Furthermore, the court found that the Senior Member had misapprehended the medical evidence and applied an incorrect test for the availability of aggravated damages. Consequently, the application for leave to appeal was granted, and the appeal was upheld. The matter was remitted to the Tribunal for further hearing to ensure that Leung’s claims were properly assessed in light of the court’s findings.

Orders