Rabel v Eastern Energy Ltd - [1999] VSCA 103

SUPREME COURT OF VICTORIA

Not Restricted

No. 4001 of 1999

ANDREW RABEL

Appellant

v.
EASTERN ENERGY LTD.

Respondent

---

JUDGES: WINNEKE, P., PHILLIPS and BUCHANAN, JJ.A.
WHERE HELD Melbourne
DATE OF HEARING: 25 June 1999
DATE OF JUDGMENT: 2 July 1999
MEDIA NEUTRAL CITATION [1999] VSCA 103

---

Practice and Procedure – Appeal – Administrative tribunal – Right to appeal to Trial Division of Supreme Court, on a question of law, from decision of tribunal with leave of Trial Division – Judge of Trial Division refuses leave to appeal – Whether right to appeal exists to Court of Appeal from that refusal – Whether general right of appeal excluded by necessary implication: Victorian Civil and Administrative Tribunal Act 1998 s.148(1), Supreme Court Act 1986 s.17(2).

---

APPEARANCES: Counsel Solicitors
For the Appellant Mr. M.W. Shand, Q.C. Eastern Community
and Mr. W.B. Stark Legal Centre Inc.
For the Respondent Mr. D. Bennett, Q.C. Russell Kennedy
and Mr. B.J. Lacy

WINNEKE, P.: PHILLIPS, J.A.: BUCHANAN, J.A.:

Mr. Rabel has been in dispute with the respondent Eastern Energy Ltd. (and its predecessor, the State Electricity Commission of Victoria) for many years. It is unnecessary, for present purposes, to trace in detail the history of that dispute. It is sufficient to say that as long ago as 1991, Mr. Rabel lodged a complaint against his former employer (then the State Electricity Commission) pursuant to what was then the Equal Opportunity Act 1984, alleging that he had been unfairly discriminated against by being excluded from employment on the grounds of impairment. The Equal Opportunity Commission declined to entertain his complaint and, at his request, it was referred to what was then the Equal Opportunity Board. The history of what thereafter occurred is set out in the judgment of Phillips, J.A. in State Electricity Commission of Victoria v. Rabel [1998] 1 V.R. 102 at pp. 111 ff.
Following much litigation and changes to relevant legislation, Mr. Rabel’s complaint ultimately came to be heard by the Anti-Discrimination Tribunal established under the Equal Opportunity Act 1995. This Tribunal commenced to hear the complaint in April 1998. The proceedings were of inordinate length and during the course of them the relevant legislation was changed again. The Tribunals and Licensing Authorities (Miscellaneous Amendments) Act 1998 abolished the former Tribunal and replaced it with the Victorian Civil and Administrative Tribunal (“VCAT”). That Act provided, by clause 9(2) of the Seventh Schedule, that any proceedings which the former tribunal had commenced to hear should be taken to have been commenced before VCAT and that anything done in relation to the proceedings by the former tribunal before the commencement of the new Act (on 1 July 1998) should be deemed to have been done by VCAT.
The proceedings continued then, in accordance with the scheme of the legislation, before VCAT in its Anti-Discrimination List. At all material times the tribunal was constituted by Mr. Rohan Walker (senior member) and Mr. Glen Carelton and Ms. Jan King (members). Evidence in relation to the…

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 Rabel v Eastern Energy Ltd

Details

AGLC: Rabel v Eastern Energy Ltd [1999] VSCA 103
Case: [1999] VSCA 103
Decision Date: 2 July 1999

CaseChat Overview and Summary

In Rabel v Eastern Energy Ltd, the dispute involved the appellant seeking to appeal the refusal of leave to appeal a decision of the Victorian Civil and Administrative Tribunal to the Court of Appeal. The appellant, Rabel, was dissatisfied with the decision of the tribunal and sought leave to appeal to the Trial Division of the Supreme Court, which was denied. Rabel then attempted to appeal the refusal of leave to the Court of Appeal, arguing that there was an inherent or statutory right to appeal such refusals.

The court was required to determine whether the appellant had a statutory or inherent right to appeal the refusal of leave to appeal to the Court of Appeal. This involved interpreting relevant provisions of the Victorian Civil and Administrative Tribunal Act 1998 and the Supreme Court Act 1986, specifically sections 148(1) and 17(2) respectively. The court had to assess whether the general right of appeal was excluded by necessary implication from the statutory scheme.

The court held that the appellant did not have an inherent or statutory right to appeal the refusal of leave to appeal from the tribunal's decision to the Court of Appeal. The court's reasoning was grounded in a detailed interpretation of the statutory provisions, which suggested that the right to appeal was limited to the Trial Division of the Supreme Court with its leave. The court concluded that the statutory scheme did not provide for an appeal from the refusal of leave to the Court of Appeal, and any such right would be excluded by necessary implication. The court thus dismissed the appeal.

No further orders were made by the court beyond dismissing the appeal.

Orders