Loizou v University of Melbourne

[2000] VSC 1

SUPREME COURT OF VICTORIA
PRACTICE COURT	Do not Send for Reporting
Not Restricted

No. 5287 of 1999

BRENDAN LOIZOU	Appellant
v.
UNIVERSITY OF MELBOURNE AND OTHERS	Respondents

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 OCTOBER 1999
DATE OF JUDGMENT:	28 JANUARY 2000
CASE MAY BE CITED AS:	LOIZOU v. UNIVERSITY OF MELBOURNE & ORS.
MEDIA NEUTRAL CITATION:	[2000] VSC 1

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CATCHWORDS:     Practice and Procedure – Appeal from Victorian Civil and Administrative Tribunal – Application to extend time for seeking leave to appeal – Appeal hopeless – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	In Person
For the Respondents	Mr. D.J. Batt	Arthur Robinson & Hedderwicks

HIS HONOUR:

1. This is an appeal by Brendan Loizou from the order of Master Wheeler made on 8 June 1999 whereby the Master dismissed his application for leave to appeal out of time against the decision of the Victorian Civil and Administrative Tribunal (VCAT) handed down by the Tribunal on 31 March 1999.

1. In 1996 the appellant enrolled in and completed an Honours year in the course of Bachelor of Arts as an undergraduate with the Department of English and Cultural Studies at the University of Melbourne.

1. On 31 March 1998 the appellant lodged a written complaint with the Equal Opportunity Commission alleging acts of discrimination against him by the University of Melbourne and certain of the lecturers at the University.

1. The discrimination was expressed to be "in terms of race based, primarily upon a racially motivated classification."

1. By letter of 14 August 1998 the Commission stated that it considered that the complaint was lacking in substance and declined to entertain it.

1. Its decision in that regard was made pursuant to the provisions of s.108 of the Equal Opportunity Act 1995 the relevant sub-sections of which read:

"108.    Commission may decline to entertain some complaints

(1)If the Commission considers that a complaint –

(a)is frivolous, vexatious, misconceived or lacking in substance;  or

…

(c)relates to an alleged contravention of the Act that took place more than 12 months before the complaint was lodged -

the Commission may decline to entertain the complaint by notifying the complainant and the respondent in writing within 60 days after the day the complaint was lodged.

…

(2)Within 60 days after receiving the Commission's notice declining to entertain a complaint, the complainant by written notice, may require the Commission to refer the complaint to the Tribunal for hearing under Division 7.

(3)The Commission must comply with a notice under sub-section (2).

(4)If the complainant does not notify the Commission under sub-section (2), the Commission may dismiss the complaint and the complainant may take no further action under this Act in relation to the subject matter of the complaint."

1. The tribunal referred to is VCAT.

1. The appellant required the Commission to refer the complaint to the Tribunal which it did.

1. On 25 November 1998 and pursuant to the provisions of s.83 of the Victorian Civil and Administrative Tribunal Act (the Act), the Tribunal directed, inter alia, that the complaint be amended to include the attribute of political beliefs in the area of education, to the existing complaint of race.

1. The appellant's particulars of claim run to some 26 pages.  Page 5 reads:

"II       CONTENTION OF THE PARTICULARS

The Complainant contends that the Respondents committed unlawful acts of discrimination in the following way:

A.Second Respondent Dr. Gelder discriminated against the Complainant by:

(1)marking the first Thesis,

(2)producing draft copies of Thesis 1 in order to damage and tarnish the Complainant's academic ability,

(3)by making a misrepresentation to an external examiner of Thesis II.

B.Third Respondent Professor During:

(1)not upholding University Procedure,

(2)not fulfilling requirements of University Procedure,

(3)by participating in the discrimination against the Complainant,

(4)by not protecting the Complainant against discrimination by Dr. Healy and Dr. Gelder.

C.Fourth Respondent Dr. Denis Cuthbert:

(1)marking the Thesis II,

(2)acting and not acting to protect the Complainant,

(3)political belief.

D.Fifth Respondent Dr. Healy discriminated against Complainant when:

(1)marking the essay,

(2)shouting at the Complainant to 'shut-up',

(3)speaking over the Complainant when presenting assessment,

(4)by passing comment on Complainant's intellectual ability,

(5)withholding assessment,

(6)manipulating assessment against University procedure,

(7)Dr. Healy stated that 'He would give my essay zero if re-marked'.

E.Sixth Respondent Dr. Bennett re-marking assessment for the subject Cultural Politics/Cultural Practice knowing that it was a conflict of interest.

F.First Respondent University discriminated against the Complainant by not providing adequate services and protection.

The reasons are set out in the preceding paragraphs below."

1. There then follow some 20 pages of reasons which the appellant contends justify or establish each of those particulars.

1. Following service upon it of the appellant's particulars of claim the University of Melbourne made application to the Tribunal for an order pursuant to the provisions of s.75(1) of the Act that the complaint be summarily dismissed or struck out on the basis that it was frivolous, vexatious, misconceived or lacking in substance;  or was otherwise an abuse of process.  Section 75 reads:

"75.     Summary dismissal of unjustified proceedings

(1)At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part of a proceeding that, in its opinion –

(a)is frivolous, vexatious, misconceived or lacking in substance;  or

(b)is otherwise an abuse of process.

(2)If the Tribunal makes an order under sub-section (1), it may order the applicant to pay any other party an amount to compensate that party for any costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding.

(3)The Tribunal's power to make an order under sub-section (1) or (2) is exercisable by –

(a)the Tribunal is constituted for the proceeding;  or

(b)a presidential member.

(4)An order under sub-section (1) or (2) may be made on the application of a party or on the Tribunal's own initiative.

(5)For the purposes of this Act, the question whether or not an application is frivolous, vexatious, misconceived or lacking in substance or is otherwise an abuse of process is a question of law."

1. On 26 February 1999 the University's application came before the Tribunal constituted by Mr. John U. Kaufman Q.C.

1. The appellant appeared in person.  The respondents were represented by their solicitor.

1. All parties relied upon extensive written submissions which they had prepared and filed with the Tribunal.

1. On 31 March 1999 the Tribunal ordered that the proceeding be struck out pursuant to s.75 of the Act.

1. The Tribunal's reasons for decision extend to 19 pages.  It is fair to say that the Tribunal considered each aspect of the appellant's complaints of discrimination but determined that they were without substance.

1. On 4 May 1999 the appellant filed an originating motion in the Court whereby he sought leave to appeal out of time pursuant to the provisions of s.148 of the Act the relevant sub-sections of which read:

"148.    Appeals from the Tribunal

(1)A party to a proceeding may appeal, on a question of law, from an order of the Tribunal in the proceeding –

(a)to the Court of Appeal, if the Tribunal was constituted for the purpose of making the order by the President or a Vice President, whether with or without others;  or

(b)to the Trial Division of the Supreme Court in any other case –

if the Court of Appeal or the Trial Division, as the case requires, gives leave to appeal.

(2)An application for leave to appeal must be made –

(a)no later than 28 days after the day of the order of the Tribunal;  and

(b)in accordance with the rules of the Supreme Court.

…

(5)The Court of Appeal or the Trial Division, as the case requires, may at any time extend or abridge any time limit fixed by or under this section."

1. The application came before Master Wheeler on 1 June 1999.  At that time the appellant had filed no affidavit material before the Master concerning his failure to make the application within time.  However, his originating motion contains the following paragraphs relating to the matter:

"Pursuant to rule 5.12(2) the Court may extend the period validating an originating motion.  As such, the Plaintiff seeks to have the time for the originating motion extended for the following reasons:

(a)the Plaintiff not being aware of the correct civil procedure,

(b)the Plaintiff preparing a written submission which was to be filed, but which does not comply with order 4 in terms of filing an originating motion in seeking Leave to Appeal.

Thus, while the Plaintiff does seek Leave to Appeal the decision, they (sic) did not correctly follow the procedures for originating the motion.  This should be taken into account when determining the extent to which the Plaintiff took all reasonable steps to initiate an originating motion.

(b)On the following days the Plaintiff attended and sought to file documents at the Prothonotary:

(a)       Thursday 29 April 1999,

(b)      Friday 30 April via fax,

(c)       Monday 3 May.

These were genuine attempts, made by the Plaintiff, to file the relevant documents in order to meet the requirement of the Supreme Court (Miscellaneous Civil Proceeding) Rules 1998 regarding lodgment of Appeals.

(c)It must be noted, therefore, that the Plaintiff's intention has been to file relevant forms in accordance with the Rules of Civil Procedure in order to have Leave of Appeal granted.

(d)It must also be duly noted that the Plaintiff is a student acting on their (sic) own behalf.  As such, while the Rules of the Supreme Court are strict and rigid, it nevertheless would not be outside the aims and objectives of the Supreme Court if it accepted the reasons set out by the Plaintiff for the late lodgment."

1. On 8 June 1999 the Master dismissed both the application for leave to appeal out of time and the application for leave to appeal.

1. In his written reasons for decision the Master noted the fact that there was no affidavit material before him in relation to the appellant's delay in making the application but stated that he was prepared to accept that the appellant could, by affidavit, depose to the relevant matters set out in his application for leave to appeal out of time.

1. Nevertheless the Master stated that he was not prepared to exercise his discretion to permit the appeal to be brought out of time and that in any event, if leave to appeal were granted the appeal would be unlikely to succeed.

1. In arriving at that latter conclusion the Master stated:

"The Plaintiff in this case complains that he had been discriminated against by the University despite the fact that he received a final grading of 70H2B for the essay the matter about which he complains.  When asked what grading he would have expected if he had succeeded in the appeal, he said that was not a matter of concern to him, he just wanted to be satisfied that all University procedures had been followed.

I have read all of the material filed in this matter, including the decision of Mr. Kaufman, who in my view has taken into account all the matters he is required to do and has given proper emphasis to the facts alleged.  In my view the decision of the Tribunal is correct."

1. On 15 June 1999 the appellant filed a Notice of Appeal in the Court in respect of the Master's order.

1. It would appear that the appellant is dissatisfied with the marks and grades awarded to him in respect of an essay and thesis submitted by him.

1. For the essay submitted for Cultural Politics/Cultural Practice he received a mark of 72% and a grade of Honours second class Division B.  For the thesis he submitted he received a mark of 70% and a similar grade.

1. Insofar as the essay is concerned the appellant complains that comments made by the lecturer who first assessed the essay point to direct discrimination against him on the ground of his race and political views.  He makes similar complaints concerning the re-marking of the essay by another lecturer and the numeral grading of the subject that he was given.

1. In respect of his thesis he makes similar complaint concerning the manner in which the lecturer appointed to supervise his thesis dealt with him.

1. During the course of his submissions to me I asked the appellant whether he considered that he had been given the appropriate grades, to which he replied "I wouldn't want to argue about academic judgment."

1. The fact is that the highest marks received by the appellant in respect of work submitted by him were the marks for the essay and the thesis.

1. Even if the marks had been higher that would not have produced an overall grade higher than Honours second class Division B.

1. I have studied at length the reasons the Tribunal gave for its decision in this matter and the voluminous material presented to the Court by the appellant.  I agree with the Tribunal's conclusions and the reasons it expressed for those conclusions.  I consider that the appellant's complaints are frivolous, misconceived, and lacking in substance.  The matters of which he complains are unexceptional and in no sense can it be said that he has been discriminated against because of his race and/or political beliefs, or for that matter any other reason.

1. The discussions concerning his work and of which he complains were clearly designed to assist him as were the comments made in respect of his essay and thesis.

1. In my opinion any appeal brought by him to this Court would be bound to fail.  In that situation no good purpose is to be served by acceding to his application to extend the time within which he may make application for leave to appeal.

1. I think that it is most unfortunate that the appellant has engaged in such a barren exercise.  He is clearly a person of some ability.  One would hope that hereafter he concentrates on furthering his career rather than sparring at shadows.

1. The appellant's originating motion is dismissed.

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