Appeal under s 148, Victorian Civil and Administrative Tribunal Act 1998 – summary dismissal of proceeding under s 75 of Act – whether proceeding frivolous, vexatious, misconceived or lacking in substance or otherwise an abuse of process.
Complaint alleging impairment discrimination under s 42, Equal Opportunity Act 1995 – vicarious liability under s 102 of Act – meaning of “services” in s 4 of Act.
Judicial immunity – immunity of a judge of the Supreme Court – application of immunity to registry staff of the Magistrates’ Court under s 24, Magistrates’ Court Act 1989.
Natural justice – failure of Victorian Civil and Administrative Tribunal to give notice of intention to rely on particular ground for summary dismissal – whether error of law.
Preliminary issue – whether existence of s 109, Equal Opportunity Act 1995 precludes an application under s 75, Victorian Civil and Administrative Tribunal 1998.
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr P G Nash, QC and Mr D J Hancock
Access Law
For the Respondent
Mr P Burke
Victorian Government Solicitor
HIS HONOUR:
Introduction and summary
This is an appeal under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (“VCAT Act”) from an order made on 22 August 2007 by the Victorian Civil and Administrative Tribunal (“Tribunal”), constituted by a Deputy President, summarily dismissing Dr Towie’s proceeding against the State of Victoria. The Tribunal’s order was as follows:
2The Respondent’s costs are reserved. The Respondent has liberty to apply for those costs on reasonable notice to the Complainant and the Tribunal.
Dr Towie’s complaint against the State of Victoria acting through the Department of Justice and the Magistrates’ Court was first made to the then Equal Opportunity Commission (“Commission”). In essence, the complaint was that Dr Towie suffered from severe high frequency deafness and that his request for a graphic equaliser and headphones (which I will refer to as “the equipment”), to enable him to follow proceedings before the Magistrates’ Court in which he was a party, was refused in breach of the Equal Opportunity Act 1995 (Vic) (“EO Act”). Conciliation by the Commission failed to resolve the complaint and it was referred to the Tribunal at Dr Towie’s request.
For the reasons set out in this judgment, I have concluded that the Tribunal erred in law in summarily dismissing Dr Towie’s proceeding under s 75 of the VCAT Act, and have decided to allow the appeal.
Facts
Dr Towie suffers from a severe high frequency hearing impairment. In 2005,…
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.
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Details
AGLC
Towie v Victoria [2008] VSC 177
Case
[2008] VSC 177
Decision Date
CaseChat Overview and Summary
The applicant, Towie, sought to appeal a decision of the Victorian Civil and Administrative Tribunal (VCAT) that summarily dismissed their proceedings under section 75 of the Victorian Civil and Administrative Tribunal Act 1998. The proceedings related to an allegation of impairment discrimination under section 42 of the Equal Opportunity Act 1995 and involved a claim for vicarious liability under section 102 of that Act. The applicant also sought to challenge the meaning of "services" in section 4 of the Equal Opportunity Act 1995. Further, Towie raised questions about judicial immunity and the application of such immunity to registry staff of the Magistrates' Court, as well as issues concerning natural justice and the failure of VCAT to give notice of its intention to rely on particular grounds for summary dismissal.
The central legal issues before the court were whether the proceedings were frivolous, vexatious, misconceived, lacking in substance, or an abuse of process, thereby justifying summary dismissal under section 75 of the Act. Additionally, the court had to determine whether the existence of section 109 of the Equal Opportunity Act 1995 precluded an application under section 75 of the Victorian Civil and Administrative Tribunal 1998. The court also considered whether VCAT erred in law by failing to provide notice of its intention to rely on particular grounds for summary dismissal, thereby breaching the principles of natural justice.
The court found that the proceedings were not frivolous, vexatious, misconceived, or lacking in substance. It held that the applicant's claims had merit and should not have been summarily dismissed. The court held that section 109 of the Equal Opportunity Act 1995 did not preclude an application under section 75 of the Victorian Civil and Administrative Tribunal 1998. The court also concluded that VCAT's failure to give notice of its intention to rely on particular grounds for summary dismissal constituted an error of law that breached the principles of natural justice. Consequently, the appeal was allowed, and the summary dismissal was set aside.
The court ordered that the proceedings be remitted to VCAT for further consideration on the merits. Additionally, the court directed VCAT to provide appropriate notice of the grounds on which it intended to rely for any future summary dismissal applications. The court did not make any orders regarding the other issues raised by the applicant, as they were not directly addressed in the judgment.