Mark Paul Weber v Deakin University and Ors and (According to the schedule annexed)
[2017] VSCA 250
•13 September 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2016 0165
| MARK PAUL WEBER | Applicant |
| V | |
| DEAKIN UNIVERSITY & ORS | Respondents |
| (According to the schedule annexed) |
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| JUDGES: | WHELAN and HANSEN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 16 August 2017 |
| DATE OF JUDGMENT: | 13 September 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 250 |
| JUDGMENT APPEALED FROM: | [2016] VSC 640 (McMillan J) |
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APPEAL – Application for leave to appeal – Summary dismissal of claim by Victorian Civil and Administrative Tribunal during final hearing – Error of law arguable – Leave granted.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the Respondents | Dr I Freckelton QC | Colin Biggers & Paisley |
WHELAN JA
HANSEN JA:
The applicant was an employee of Deakin University, the first named respondent. The other 11 respondents are, or were at the relevant time, employees of Deakin University.
The applicant began his employment with Deakin University as an academic in 2009. Conflicts at work involving the applicant, which were initially focussed on issues of workload, began towards the end of that same year.
The applicant suffers from depression.
Over time, conflicts within the university involving the applicant escalated. Conflicts occurred over performance reviews, workload allocation, the applicant’s role on an academic progress committee, and over what the applicant considered to be a failure by the university to make reasonable adjustments for the disability constituted by his depression.
The applicant ceased work and made a WorkCover claim.
The applicant’s three proceedings
On 6 November 2013, the applicant issued a proceeding in the Victorian Civil and Administrative Tribunal (‘VCAT’) against Deakin University and the 11 other respondents, alleging discrimination because of his depression and because of his employment and industrial activities, and victimisation. The claim was made under div 1 of pt 4 of the Equal Opportunity Act 2010 (‘the Equal Opportunity claim’).
On 25 February 2014, the applicant filed amended particulars of the Equal Opportunity claim at VCAT. The document was 156 pages long, comprising 391 paragraphs. It referred to separate exhibits marked ‘MW001’ to ‘MW366’.
On 20 March 2014, the applicant issued a proceeding in the Magistrates’ Court against five defendants, being Deakin University, three of the 11 individual respondents to the Equal Opportunity claim at VCAT, and one additional university employee, alleging discrimination in contravention of the Accident Compensation Act 1985 (‘the Accident Compensation discrimination claim’). The proceeding was later struck out and reinstatement was refused in circumstances to which we will refer below.
On 22 April 2014, after a number of earlier directions hearings, a compulsory conference was held at VCAT before Senior Member Megay. The Senior Member ordered that the applicant’s 391 paragraph particulars document ‘along with exhibits’ stand as his witness statement. Senior Member Megay attempted to refine the issues to be determined on the Equal Opportunity claim. She also ordered that:
The respondents have liberty to apply at the conclusion of the applicant’s evidence for an adjournment to prepare a response if the justice of the case requires.
In the alternative, at the conclusion of the applicant’s case, the respondent shall be at liberty to make a submission that the application should be dismissed and this application can be made without the respondents being put to their election and shall be determined as if it was a final submission on the balance of probability.
Compulsory conferences are provided for by s 83 of the Victorian Civil and Administrative Tribunal Act 1998 (‘the VCAT Act’). Section 83(2) provides that one of the functions of the compulsory conference is to ‘allow directions to be given concerning the conduct of the proceeding’. The power to give directions is contained in s 80 of the VCAT Act. Section 80(1) is expressed in wide terms, empowering the Tribunal to give directions ‘at any time in a proceeding’ and to ‘do whatever is necessary for the expeditious or fair hearing and determination of a proceeding’.
On 1 July 2014 the applicant issued a third proceeding. The WorkCover claim which he had made had been denied and, after conciliation, he issued a proceeding in the Magistrates’ Court claiming an entitlement to weekly payments for incapacity from 6 June 2013. This claim was also made under the Accident Compensation Act, but it was a separate claim and a separate proceeding from the Accident Compensation discrimination claim. In the hearing before us the applicant told us that this proceeding has been discontinued. He said that he was receiving disability benefits related to his superannuation.
The VCAT hearing and the s 75 application
On 22, 23 and 25 July 2014 the applicant conducted his case on the Equal Opportunity claim at VCAT. Notwithstanding the extensive document then standing as his witness statement, the applicant added a substantial quantity of additional material to his case, and he gave additional oral evidence. He called two other witnesses, being two employees of Deakin University. At the conclusion of the applicant’s evidence in chief, the respondents stated that they wished to apply for dismissal of the claim under s 75 of the VCAT Act.
Section 75 relevantly provides:
(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.
…
(4) An order under subsection (1)…may be made on the application of a party or on the Tribunal’s own initiative.
For the purpose of the application, orders were made for the filing of submissions. The orders commenced with the following:
The Applicant having concluded his evidence and the Respondents electing to make submissions that the Applicant’s case be dismissed (in accordance with the order of the Tribunal dated 22 April 2014), the Tribunal orders and directs as follows …
Written submissions were subsequently filed, and, without a further hearing, on 6 November 2014, Member Campana ordered, pursuant to s 75 of the VCAT Act, that the application be dismissed. Reasons were published on 20 November 2014 (‘the VCAT Reasons’).[1]
[1]Weber v Deakin University [2014] VCAT 1440.
The VCAT Reasons are extensive and detailed. They contain a comprehensive analysis of Mr Weber’s complaints against the university. Mr Weber’s claim was dismissed because Member Campana concluded, on the basis of the evidence Mr Weber had presented, that Mr Weber’s depression was not a substantial reason for any unfavourable treatment he had received, that his employment activity was not a substantial reason for any unfavourable treatment he had received, that his industrial activity was not a substantial reason for any unfavourable treatment he had received, that there was no substance to Mr Weber’s claim that reasonable adjustments for his disability had not been made by the university, and that Mr Weber’s claim of victimisation was lacking in substance. The VCAT member’s reasons conclude as follows:
I am conscious of the fact that Mr Weber may be distressed by the conclusions I have reached. This has been at the forefront of my mind as I considered the evidence. During the hearing, and subsequently, I have been made aware of how precarious Mr Weber is feeling. I have no doubt that during the past years, culminating in this proceeding, his mental health has suffered considerably. I encourage Mr Weber to seek support from appropriate professionals.[2]
[2]VCAT Reasons [242].
The applicant then applied for leave to appeal on a question of law under s 148 of the VCAT Act. The application came on for hearing before Derham AsJ on 31 March 2015. Derham AsJ refused leave to appeal on 11 December 2015. He published reasons which are also extensive and detailed (‘the AsJ Reasons’).[3]
[3][2015] VSC 703.
The Magistrates’ Court application
During 2015 the applicant’s Accident Compensation discrimination claim in the Magistrates’ Court was struck out by the Registrar of the Magistrates’ Court. It seems likely that this was the result of, or was contributed to by, errors by the Registrar. In any event, the Registrar advised the parties of their entitlement to seek reinstatement and the applicant filed an application for reinstatement on 10 December 2015. That application came on for hearing before Magistrate Saines on 1 February 2016. The defendants opposed reinstatement contending that the proceeding was an abuse of process as it amounted to an attempt to re-litigate matters already decided in the VCAT proceeding. The magistrate upheld that submission. He delivered written reasons (‘the Magistrate’s Reasons’) on 16 March 2016 in which he concluded that the proceedings were an abuse of process and should be permanently stayed.
Appeals to the Trial Division
The applicant appealed to the Trial Division of the Supreme Court constituted by a judge, under s 17(3) of the Supreme Court Act 1986 and r 77.06 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’), against Derham AsJ’s refusal of leave to appeal the VCAT decision on a question of law under s 148 of the VCAT Act.
In a separate proceeding, the applicant appealed to the Supreme Court on a question of law under s 109 of the Magistrates’ Court Act 1989 and r 58.06 of the Rules against the decision of the Magistrate on 16 March 2016 permanently staying his Accident Compensation claim.
The two appeals were ordered to be joined and tried together under r 9.12 of the Rules.
The appeals came on for hearing before McMillan J in the Trial Division on 6 September 2016.[4] McMillan J gave judgment on 26 October 2016. She dismissed both appeals and published her reasons (‘the Judge’s Reasons’).[5]
[4]Prior to the hearing before McMillan J, Zammit J heard and determined preliminary issues raised by the respondents as to the nature of the appeal from the Associate Justice: [2016] VSC 147. In substance, Zammit J rejected the narrowness of the contentions put on behalf of the respondents and found that the grounds upon which the applicant wished to rely were ‘not impermissible’.
[5][2016] VSC 640.
The applicant now seeks leave to appeal those dismissals by McMillan J.
Proposed grounds of appeal and submissions made by the applicant
The applicant appeared in person, as he had before VCAT, Derham AsJ, and McMillan J. His application for leave to appeal and his written case set out a number of complaints, some of which overlap and some of which are repetitive.
In the course of submissions the applicant accepted as a reasonable summary of his contentions that:
Derham AsJ’s refusal of leave to appeal on a question of law from VCAT’s dismissal of the Equal Opportunity claim, and McMillan J’s dismissal of an appeal from that decision, were erroneous because:
(1)McMillan J had prevented the applicant from making full oral submissions; she ‘confined the applicant to the questions of law raised in the applicant’s outline of submissions. In essence, repeating the words of the questions of law without being able to expand on them’. (Applicant’s Written Case paras 1, 2, 3 and 27).[6]
[6]The bracket references are references to our analysis of where these complaints appear in the Written Case.
(2)VCAT had misapplied s 75 of the VCAT Act, and this was an error of law as to which Derham AsJ had wrongly refused leave to appeal and which McMillan J had wrongly failed to correct. More specifically, McMillan J had failed to refer to the relevant second reading speech in relation to the VCAT Act, and had failed to have regard to the fact that the Human Rights List at VCAT was governed by procedures published by VCAT on its web page which required that applications under s 75 only be made during the interlocutory period of the proceeding. VCAT had failed to follow relevant authority, in particular the decision in Norman v Australian Red Cross Society (1998) 14 VAR 243 (‘Norman’) applying State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 (‘Rabel’), and McMillan J had wrongly applied a ‘literal meaning’ to the expression ‘at any time’ in s 75. (Applicant’s Written Case paras 4–14, 28–37).
(3)The VCAT decision had failed to specifically reach, and express, conclusions as to whether the claims were frivolous, vexatious, misconceived or lacking in substance. (Applicant’s Written Case para 15).
(4)The applicant had been entitled to a full hearing at VCAT, with all the relevant evidence being led and there being cross-examination. VCAT’s failure to proceed in that way was in conflict with the decision in Forrester v Aims Corporation (‘Forrester’) [2004] VSC 506. (Applicant’s Written Case paras 16–17 and 25–26).
(5)The applicant’s appeal in relation to VCAT should have been heard by the President of VCAT. (Applicant’s Written Case paras 18–20, 38–39).
(6)On an application under s 75 only the complaint and documents referred to in the complaint could be looked at. Evidence should not be assessed so as to form a view on the ultimate merits, yet that is what VCAT had done and what McMillan J had failed to correct. (Applicant’s Written Case paras 21–22).
In relation to the dismissal of the Accident Compensation claim, the errors of law made by the Magistrate, which McMillan J had failed to correct, were:
(1)the Accident Compensation claim and the Equal Opportunity claim were distinct and separate claims made under separate legislation. There was no abuse of process involved in pursuing both of them, as VCAT itself had held correctly at paras 19–20 of the VCAT Reasons;
(2)the Magistrate had committed an error of law when dismissing the Accident Compensation claim without a full hearing.
In the course of oral submissions, the applicant’s position was further refined. He asked and answered the following rhetorical questions in the following way:
Did VCAT have the power to dismiss the proceeding under s 75?
Yes.
Was the exercise of that power discretionary?
Yes.
Was the power to be exercised only with great caution?
Yes.
Did VCAT apply the law in relation to s 75 and follow its own procedures? No.
Did VCAT deal with the matter justly, fairly and without harshness?
No.
In his oral submissions the applicant emphasised the protective nature of the Equal Opportunity Act and the important role it played in protecting human rights. He said that similar considerations also applied to the Accident Compensation Act. He referred to the effect which the discrimination which he contends he has suffered, and the breaches of human rights to which he considers that he has been subjected, has had upon his health. Reflecting the observations made by the VCAT member, quoted earlier, he told us that he had suffered what he described as ‘complete personal destruction’.
The applicant is unrepresented. He has difficulty expressing his complaints in a way which is directed towards an argument which might entitle him to relief. It seems clear, however, that he has always attempted to maintain that, as a matter of law, his application should not have been dismissed under s 75 of the VCAT Act at the time it was dismissed and without him having the benefit of a full hearing.
It is not correct to say that the application under s 75 of the VCAT Act was heard after the applicant’s case had concluded, in the sense that he had not been cross examined, which might have occurred if his claim had not been dismissed. It is correct to say that his case was dismissed after he had presented all the evidence he wished to present.
In the hearing before Derham AsJ the applicant appears to have been intensely focussed on the proposition that summary dismissal could only take place during the interlocutory stage of the proceeding. This focus persisted in the hearing before McMillan J. For the reasons which Derham AsJ and McMillan J gave, at some length, he was wrong about that because s 75 expressly provides that the application can be made ‘at any time’. It does not matter what the VCAT website might say. The website cannot alter the statute. It does not matter that there are many reported cases which proceed on the assumption that summary dismissal applications will be made during the interlocutory stage. That is the usual position, but the VCAT Act says the application may be made ‘at any time’. Before us, the applicant seemed to accept that VCAT had the power to dismiss his claim under s 75. He answered his rhetorical question as to whether VCAT had the power to do what it did, yes.
Having said that, the applicant does still contend that in the circumstances here he had an entitlement to a ‘full hearing’ and that s 75 was not properly applied.
An issue which ought to be determined
An issue of law may be discerned in relation to VCAT’s dismissal of the applicant’s claims. In substance, it is this: has VCAT addressed the issue under s 75 of the VCAT Act of whether the proceeding was ‘frivolous, vexatious, misconceived or lacking in substance’ or has it instead determined that, on the evidence the applicant had presented, he had failed to establish his claim on the balance of probabilities and, if the latter, whether that was responsive to and permissible under the order of Senior Member Megay or permitted by s 75.
A basis for a concern as to whether VCAT addressed the issue provided for by s 75 arises early in the VCAT reasons. When expressing the task before her, the VCAT member said the following:
While the Tribunal must exercise the greatest of caution in dismissing any case summarily, in the majority of cases in which summary dismissal is sought the Applicant has not put all the evidence before the Tribunal. The present application for summary dismissal has occurred after Mr Weber has lead all of his evidence. His case is at its highest. The questions for determination by the Tribunal, are the same as those that would have to be answered at the end of a hearing – Has Mr Weber established on the balance of probabilities that there has been discrimination or victimisation? Has Mr Weber established a basis for the argument that the Respondents have failed to provide reasonable adjustments to accommodate his disability? These questions will be answered below.[7]
[7]VCAT Reasons [18] (emphasis added).
Derham AsJ perceived that this issue was being raised, at least implicitly, and he was concerned to address it. At the outset of his reasons, he said:
In the reasons that follow, I conclude that it is open to use the power in s 75 after the applicant has had every opportunity to identify the subject matter of the complaint and produce all available evidence in support. In these circumstances, where a submission is made that on the balance of probabilities the plaintiff has not established that there has been a contravention of the particular legislation in question, and there is nothing of substance which requires an answer from the respondent, the Tribunal is empowered to dismiss the application pursuant to s 75 of the Act.[8]
[8]AsJ Reasons [5].
Later, after dealing with the decision of the VCAT Deputy President in Norman, Derham AsJ said:
In applying these principles it is important to bear in mind that they are applicable to a variety of situations, including the making of applications under the section at an interlocutory stage of a proceeding and also at a hearing after evidence is adduced. It is also pertinent to observe that these principles were expressed against the background of interlocutory applications.[9]
[9]AsJ Reasons [35].
Then, after summarising what he saw as the applicable principles in relation to s 75 as derived from previous VCAT decisions, he said:
In my view, it follows from these propositions that it is open to use the power in s 75 after the applicant has had every opportunity to identify the subject matter of the complaint and produce all available evidence in support. In these circumstances, where a submission is made that on the balance of probabilities the plaintiff has not established that there has been a contravention of the particular legislation in question, and there is nothing of substance which requires an answer from the respondent, the Tribunal is empowered to dismiss the application.[10]
[10]AsJ Reasons [37].
This issue does not appear to have arisen before McMillan J where the focus was on the misguided contention that an application under s 75 could only be made at the interlocutory stage.[11]
[11]See Judge’s Reasons at [43]–[51] in particular.
Derham AsJ made passing reference to the decision of Kaye J in Forrester v AIMS Corporation & Ors.[12]In that case Kaye J had accepted that a summary dismissal power might be exercised where the complainant failed to produce evidence substantiating an essential element of his complaint in circumstances where it was conceded that the material before the Tribunal constituted the whole of the evidentiary material which the complainant intended to adduce.[13] However, Kaye J had also emphasised in the same case that the onus remained on the respondent to show that the complaint was ‘undoubtedly hopeless’.[14]
[12][2004] VSC 506, referred to at AsJ Reasons [62].
[13]Ibid [25].
[14]Ibid.
Derham AsJ quoted what the VCAT member had said at the beginning of the VCAT Reasons about her task in the passage we quoted earlier, and he then continued:
In making these observations, the learned Member applied the appropriate test derived from the authorities to which I have referred. It is therefore my view that there is no real or significant argument that the Tribunal fell into error in dismissing the complaints made by the plaintiff pursuant to s 75 of the Act after all his evidence was heard.[15]
[15]AsJ Reasons [77].
Derham AsJ also addressed the issue of whether the VCAT member had in fact found, as s 75 requires, that the claims were ‘lacking in substance’. Derham AsJ said (referring to the questions of law the applicant sought to raise):
The first of these questions refers to the requirement, established by the authorities, that it is a precondition to a valid order under s 75 that VCAT makes an express finding that the proceeding is frivolous, vexatious, misconceived or lacking in substance, or is otherwise an abuse of process. The reasons given must support that finding. Contrary to the contention embedded in this question, the Tribunal did expressly find that there was no substance to the various claims. In my view, there is no real or significant argument that the Tribunal failed to expressly find that the plaintiff’s complaints were lacking in substance, nor that the Tribunal failed to provide reasons supporting the findings.[16]
[16]AsJ Reasons [59] (citations omitted).
Derham AsJ’s statement that an express finding that the proceeding is frivolous, vexatious, misconceived or lacking in substance, or is otherwise an abuse of process, is a precondition to a valid order was founded upon the judgment of Kyrou J in Martin v Fasham Johnson Pty Ltd.[17]
[17][2008] VSC 289 [29], cited in AsJ Reasons in footnote 37 to [36(g)].
Derham AsJ footnoted the sentence in which he said the Tribunal had expressly found there was no substance to the various claims citing the VCAT reasons at [200], [228] and [237]. At [200] the VCAT member dealt with the claim that reasonable adjustments had not been made by the University and did expressly state that there was ‘no substance’ to that claim. At [228] the VCAT member addressed the claim to victimisation and said that that claim was ‘dismissed as lacking in substance’. At [237] the VCAT member was dealing with the claims for vicarious liability. She said:
Mr Weber has failed to establish either discrimination or victimisation by the University. The claim against the second to twelfth Respondents is dismissed.
In her summary of conclusions the VCAT member said the following:
Summary Conclusion
The evidence presented to the Tribunal does not support a claim of discrimination or victimisation under the EO Act.
There is no evidence, either directly or by inference, which leads to a conclusion that any of the Respondents have engaged in any unfavourable treatment towards Mr Weber as a result of him having any of the attributes identified. I take the view that the actions taken by the University have been more about managing Mr Weber and his conduct. I find that the University and it’s staff have been very sensitive to Mr Weber’s mental health and have had to engage in a challenging balancing act — between not wanting to take action that results in an exacerbation of Mr Weber’s condition — while protecting the interests of other staff and their obligations under University procedure and governing employment laws and regulations.
Mr Weber has not satisfied the Tribunal on the evidence presented, that he has been treated unfavourably because of any of the attributes identified. The Tribunal is also not satisfied that he has been victimised as a result of his complaints of discrimination under the EO Act.
The Respondents application for summary dismissal is granted. The order of the Tribunal is that the Application is dismissed. The scheduled resumption of the hearing on 17 November 2014 is vacated. The Respondents are given liberty to apply to the Tribunal for costs, such liberty to be exercised on or before 15 December 2014. If an application for costs is made, the principal registrar is directed to refer the matter to me for consideration as to the appropriate directions to make for filing submissions.[18]
[18]VCAT Reasons [238]–[241].
It seems that the VCAT member did expressly find that the claims concerning reasonable adjustments and victimisation were without substance. Her other findings, read with the description of her task as quoted earlier, are open to be read as findings on the balance of probability. If that is so, it is arguable that she had not found the claims to be ‘lacking in substance’, in the sense of being ‘undoubtedly hopeless’, but had assessed them by reference to the balance of probabilities, and it is arguable that s 75 did not permit that course.
A potentially important issue which has not yet been addressed is whether what the VCAT member did is, in any event, valid and appropriate pursuant to the order made by Senior Member Megay, which we quoted earlier. We did not hear argument on that issue, but the potential for there to have been a conflation of Senior Member Megay’s order and s 75 seems to exist. If the dismissal was appropriate pursuant to Senior Member Megay’s order, any deficiency in the application of s 75 may be seen as inconsequential. As we say, no argument has yet been addressed to this issue.
The applicant’s application is not in a form which enables a clear identification of his proposed grounds of appeal. Paragraphs 15 and 16 of his Written Case read, in part:
— … ‘the VCAT failed to make a determination that it was frivolous, vexatious, misconceived or lacking in substance’. …
— … ‘the complainant is entitled to a full hearing’. …
We would grant leave on a proposed ground combining those statements to enable determination of the issue of law we have identified.
Other proposed grounds
The other proposed grounds in relation to the VCAT appeal are not arguable in our view.
McMillan J rightly attempted to confine the applicant to the questions of law he had raised.
McMillan J was not required to have regard to the second reading speech. No party before her submitted that it had any relevance. It would not have altered the analysis in any event. We have already indicated that VCAT’s website was not relevant.
The contention that the applicant’s appeal should have been heard by the President of VCAT is misconceived. The President of VCAT, in his capacity as a judge of the Supreme Court, may hear appeals under s 148 of the VCAT Act. There is no requirement for that to occur.
In relation to the appeal from the Magistrates’ Court, the applicant’s proposed grounds are not arguable. He has not identified any arguable error of law. He should have leave to appeal, however, so as to enable the Magistrate’s decision to be set aside should he succeed on the appeal in relation to VCAT’s decision.
Conclusion
The orders on the application should be as follows:
(1)The applicant has leave to appeal on the following grounds:
(a) The VCAT failed to make a determination that the claim was frivolous, vexatious, misconceived or lacking in substance, and dismissed the claim in circumstances where the applicant was entitled to a full hearing.
(b) The Magistrate’s decision was premised on the validity of VCAT’s decision which was invalid by reason of ground (a).
(2)The application is otherwise dismissed.
(3)Costs are reserved.
We emphasise that we have merely concluded that the ground concerning the VCAT decision is arguable. Whether it succeeds or not is a different issue, which can only be determined after hearing full argument. The applicant and the Court might well be assisted in that regard if pro bono counsel were prepared to appear for the applicant on the appeal.
SCHEDULE OF PARTIES
S APCI 2016 0165
BETWEEN:
MARK PAUL WEBER Applicant
-And-
DEAKIN UNIVERSITY First Respondent
HISHAM ELKADI Second Respondent
JANE DEN HOLLANDER Third Respondent
JANE SWEENEY Fourth Respondent
MALCOLM CAMPBELL Fifth Respondent
ANTHONY MILLS Sixth Respondent
LINDA TIVENDALE Seventh Respondent
TREVOR DAY Eighth Respondent
SHIRLEY ROONEY Ninth Respondent
GWEN TINKLER Tenth Respondent
MICHAEL O'DONOGHUE Eleventh Respondent
KATE YOUNG Twelfth Respondent
3
5
0