Weber v Deakin University - [2018] VSCA 53

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2016 0165

MARK PAUL WEBER	Appellant
v
DEAKIN UNIVERSITY & ORS (according to the attached Schedule)	Respondents

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JUDGES:	TATE and McLEISH JJA and McDONALD AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 February 2018
DATE OF JUDGMENT:	8 March 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 53
JUDGMENT APPEALED FROM:	[2016] VSC 640 (McMillan J)

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ADMINISTRATIVE LAW – Judicial Review – Victorian Civil and Administrative Tribunal – Dismissal of claim during final hearing – Prior to commencement of final hearing respondents granted liberty to make no case submission without being put to election – Proceeding dismissed pursuant to Victorian Civil and Administrative Tribunal Act 1998 s 75 – Tribunal failed to apply statutory criteria for summary dismissal of proceeding – Tribunal dismissed proceeding pursuant to orders granting liberty to respondents to make no case submission – Whether appellant denied procedural fairness – No denial of procedural fairness – Appeal dismissed – Victorian Civil and Administrative Tribunal Act 1998 ss 75, 80(1), 83(2), 98(3) – Equal Opportunity Act 2010 ss 8, 17, 20, 103.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J Ribbands	--
For the Respondents	Dr I Freckelton QC	Colin Biggers & Paisley

TATE JA

McLEISH JA
McDONALD AJA:

Introduction

On 13 September 2017 Mr Weber was granted leave to appeal[1] from a judgment of McMillan J[2] dismissing:

(a) an appeal from a judgment of Derham AsJ refusing leave to appeal on a question of law under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’);[3] and

(b) an appeal under s 109 of the Magistrates' Court Act 1989 against a decision of the Magistrates' Court of Victoria permanently staying Mr Weber's claim against the respondents that he had been discriminated against and was entitled to damages pursuant to s 242AD of the Accident Compensation Act 1985 (‘Accident Compensation Act’).

[1]Weber v Deakin University [2017] VSCA 250.

[2]Weber v Deakin University [2016] VSC 640.

[3]Weber v Deakin University [No 1] (2015) 50 VR 645.

Mr Weber was granted leave to appeal on the following grounds:

(a) The Victorian Civil and Administrative Tribunal (‘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).

The primary issue in the current appeal is the validity of an order made by VCAT pursuant to s 75 of the VCAT Act on 6 November 2014 dismissing Mr Weber's application under the Equal Opportunity Act 2010 (‘EO Act’). We have concluded that the VCAT member failed to properly exercise the power of summary dismissal conferred by s 75. However, we have concluded that the Tribunal dismissed Mr Weber's application pursuant to an order made at a compulsory conference on 22 April…

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 Weber v Deakin University

Details

AGLC: Weber v Deakin University [2018] VSCA 53
Case: [2018] VSCA 53
Decision Date: 8 March 2018

CaseChat Overview and Summary

Weber v Deakin University involves an appeal against the dismissal of a claim by the respondent during the final hearing. The original claim was brought under the Equal Opportunity Act 2010, alleging discrimination by the appellant, Deakin University. The dispute was heard by the Victorian Civil and Administrative Tribunal (VCAT), which dismissed the proceeding before the final hearing commenced. The dismissal followed the respondents' submission that they had no case to answer, a submission permitted by VCAT's prior orders.

The central legal issue was whether the Tribunal's dismissal of the proceeding denied the appellant procedural fairness. The appellant argued that the dismissal process contravened the statutory criteria set out in the Victorian Civil and Administrative Tribunal Act 1998, particularly sections 75 and 80(1), which pertain to the summary dismissal of proceedings. Additionally, the appellant contended that the dismissal without a full hearing contravened the principles of natural justice, as outlined in section 98(3) of the same Act.

The Court found that the Tribunal had not failed to apply the statutory criteria for summary dismissal of the proceeding, as it had correctly interpreted the provisions of the Act and the orders that allowed the respondents to make a no case submission. The Court held that the appellant was not denied procedural fairness because the Tribunal had provided adequate opportunity for the appellant to respond to the respondents' submission. The Court further noted that the appellant had not demonstrated any prejudice arising from the dismissal. Consequently, the appeal was dismissed, affirming the Tribunal's decision.

Orders