JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 September 2016
DATE OF JUDGMENT:	26 October 2016
CASE MAY BE CITED AS:	Weber v Deakin University & Ors
MEDIUM NEUTRAL CITATION:	[2016] VSC 640

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APPEALS — Appeal from Associate Judge on questions of law — Whether Associate Judge erred in consideration of s 75 of the Victorian Civil and Administrative Tribunal Act 1998 — Victorian Civil and Administrative Tribunal Act 1998, s 148 — No error identified — Appeal dismissed.

APPEALS — Appeal from the Magistrates’ Court on questions of law — Whether Magistrate erred in considering prior decision of Victorian Civil and Administrative Tribunal — Whether proceeding in the Magistrates’ Court dismissed in error — No error established — Magistrates’ Court Act 1989, s 109 — Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	In person	—
For the Respondents	Dr I R L Freckelton QC with Ms S L Kupsch	Colin Biggers & Paisley

HER HONOUR:

Introduction

In these two separate, but related proceedings, the appellant[1] seeks:

(a) to appeal against the judgment of Derham AsJ of 11 December 2015[2] pursuant to r 77.06 of the Supreme Court (General Civil Procedure) Rules 2005[3] (‘the VCAT appeal proceeding’); and

(b) to appeal against the decision of Magistrate Saines of 16 March 2016 pursuant to r 58.06 of the Supreme Court (General Civil Procedure) Rules 2005 (‘the Magistrates’ Court appeal proceeding’).

[1]I have referred to Mr Weber as the ‘appellant’ throughout these reasons, whereas the parties have referred to him as the ‘applicant’ in their various written materials.

[2]Weber v Deakin University [2015] VSC 703 (11 December 2015).

[3]The appellant’s notices of appeal incorrectly refer to the 2005 Rules. However, nothing turns on this.

On 23 June 2016, Zammit J made orders, by consent, that the two proceedings be joined and tried together under r 9.12 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’).

Background

The appellant is currently employed by Deakin University, which is the first respondent to both appeals. The other respondents are various staff members of Deakin University.[4] These proceedings ultimately arise from a series of events that occurred in the course of the appellant’s employment, which led to the appellant initiating several proceedings against the respondents. Of these proceedings, the following are presently relevant:

(a) a complaint in the Victorian Civil and Administrative Tribunal (‘the VCAT proceeding’); and

(b) a complaint in the Magistrates’ Court (‘the Magistrates’ Court proceeding’).

[4] In total, there are 12 respondents to the VCAT appeal proceeding and five respondents to the Magistrates’ Court appeal proceeding. Although the respondents to each application differ, for simplicity I have referred to these parties collectively as ‘the respondents’.

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 [2016] VSC 640
Case: [2016] VSC 640
Decision Date: 26 October 2016

CaseChat Overview and Summary

In Weber v Deakin University, the dispute arose from an appeal against decisions made by the Victorian Civil and Administrative Tribunal (VCAT) and subsequently the Magistrates' Court. Weber, the appellant, sought to challenge the tribunal's decision, which was upheld by the Magistrates' Court. The appellant's primary contention was that the Associate Judge erred in the application of section 75 of the Victorian Civil and Administrative Tribunal Act 1998, as well as the Magistrate's failure to correctly consider the prior decision of VCAT.

The legal issues central to the appeal included whether the Associate Judge erred in their interpretation and application of section 75 of the Act, and if the Magistrates' Court correctly exercised its discretion under section 109 of the Magistrates' Court Act 1989 in considering the prior decision of VCAT. The appellant argued that both the tribunal and the Magistrates' Court failed to properly apply the relevant legal principles, resulting in an unjust outcome.

The court examined the decisions of both the tribunal and the Magistrates' Court, focusing on the application of section 75 of the Act and the appropriate consideration of VCAT's prior decision. The court found no error in the reasoning or application of the law by either the Associate Judge or the Magistrate. Consequently, the appeal was dismissed, affirming the decisions of the tribunal and the Magistrates' Court. The court held that the tribunal and the Magistrates' Court had correctly interpreted and applied the relevant statutory provisions, and that there was no basis to interfere with their decisions.

Orders