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Weber v Deakin University

Weber v Deakin University

Case [2016] VSC 147 14 April 2016

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2014 06753

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

JUDGE:	ZAMMIT J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 March 2016
DATE OF JUDGMENT:	14 April 2016
CASE MAY BE CITED AS:	Weber v Deakin University & Ors
MEDIUM NEUTRAL CITATION:	[2016] VSC 147

JUDICIAL REVIEW AND APPEALS – Application to appeal Associate Judge’s order refusing leave to appeal from the Victorian Civil and Administrative Tribunal – Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148 – Supreme Court Act 1986 (Vic) s 17(3).

NATURE OF THE APPEAL – Appeal from an Associate Judge under Supreme Court (General Civil Procedure) Rules2015 r 77.06 – Whether such an appeal is a rehearing, hearing de novo or appeal stricto sensu – The type of error that must be demonstrated in such an appeal – Whether an appeal can be heard if there is no error – Whether a court order has ‘worked an injustice’.

APPEARANCES:	Counsel	Solicitors
For the Appellant	In person
For the Respondents	Dr Ian Freckelton QC	Colin Biggers & Paisley

HER HONOUR:

Introduction

1 The appellant, Mark Weber, has appealed against the decision of the Associate Judge in Weber v Deakin University[1] to the Supreme Court pursuant to s 17(3) of the Supreme Court Act 1986 and r 77.06 of the Supreme Court (General Civil Procedure) Rules 2005 (‘the Rules’). On 5 February 2016, the Associate Judge ordered the appellant to pay costs in respect of the hearing. The appellant also wishes to appeal against those orders.

[1][2015] VSC 703 (11 December 2015) (‘the decision’).

2 At the first return date on 11 February 2016, a preliminary issue was raised in relation to the form the hearing should take as a result on appeal. The respondents submitted that appeals pursuant to r 77.06.9:[2]

(5)… are not appeals on a point of law against the decision of the Associate Justice.
(6)To the extent that the issues raised by the appellant before a Judge of the Trial Division of this Court purport to identify errors in Derham AsJ’s decision, rather than addressing specifically the decision of VCAT, from which the substantive appeal lies, they are misconceived and ought not to be traversed. The focus of the Trial Division, on appeal from the decision of Derham AsJ, should be upon whether the grounds of appeal advanced by the appellant are made out.
(7)The appeal to this court lies under s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’), against the final order made by the Victorian Civil and Administrative Tribunal (‘Tribunal’) constituted by Member Campana, on 6 November 2014, supported by reasons delivered on 20 November 2014, in proceeding 111/2014: Weber v Deakin University [2014] VCAT 1440, wherein it was ordered that the respondent’s application for summary dismissal of the appellant’s application was granted…

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 147
Case: [2016] VSC 147
Decision Date: 14 April 2016

CaseChat Overview and Summary

Weber sought to appeal an Associate Judge’s order refusing leave to appeal a decision of the Victorian Civil and Administrative Tribunal. The applicant’s leave application had been dismissed on the basis that there was no arguable case that the Associate Judge had made an error of law. The applicant sought to appeal the Associate Judge’s order to the Supreme Court, which refused the application. Weber applied for leave to appeal the Supreme Court’s decision. The court was required to determine the type of appeal that was permissible in such a case, the type of error that must be demonstrated in such an appeal, and whether an appeal could be heard if there was no error. The court was also required to determine whether a court order had ‘worked an injustice’ in the circumstances.

The court held that the appropriate form of appeal in such a case was an appeal stricto sensu, which required the applicant to demonstrate that the Associate Judge had made an error of law. The court held that the applicant had not demonstrated that the Associate Judge had made an error of law, and the appeal was dismissed. The court held that there was no error in the Supreme Court’s refusal of leave to appeal, as the applicant had not demonstrated that there was an arguable case that the Associate Judge had made an error of law. The court held that an appeal could not be heard if there was no error, and that the applicant had not demonstrated that the Associate Judge’s order had ‘worked an injustice’ in the circumstances.

The court dismissed the application for leave to appeal the Supreme Court’s decision. The court held that the applicant had not demonstrated that the Associate Judge had made an error of law, and that the appeal was not arguable. The court held that the Supreme Court had correctly refused leave to appeal the Associate Judge’s order, and that there was no error in that decision.

Orders