COMMON LAW DIVISION JUDICIAL REVIEW AND APPEALS LIST
S CI 2014 06753
MARK PAUL WEBER
Plaintiff
v
DEAKIN UNIVERSITY AND OTHERS (according to the schedule attached)
Defendants
---
JUDGE:
Derham AsJ
WHERE HELD:
Melbourne
DATE OF HEARING:
31 March 2015
DATE OF JUDGMENT:
11 December 2015
CASE MAY BE CITED AS:
Weber v Deakin University
MEDIUM NEUTRAL CITATION:
[2015] VSC 703 First Revision: 27 June 2017
---
JUDICIAL REVIEW AND APPEALS – Application for leave to appeal from VCAT under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) – Whether question of law – Whether real or significant argument that Tribunal was in error – Leave refused.
---
APPEARANCES:
Counsel
Solicitors
For the Plaintiff
In person
For the Defendants
Mr I R L Freckelton QC with Mr S Kupsch, Solicitor
Colin Biggers & Paisley
HIS HONOUR:
Introduction and Summary of Conclusions
On 6 November 2014, Ms K. Campana, a Member of Victorian Civil and Administrative Tribunal (‘Tribunal’), dismissed the application of the plaintiff under the Equal Opportunity Act 2010 (Vic) (‘the EO Act’). Reasons were published on 20 November 2014. The application was dismissed under s 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘the Act’) on the application of the defendants.
The plaintiff seeks leave to appeal the final order dismissing his application pursuant to s 148 of the Act. The principles applicable are well known and are set out below.
In addition to the first defendant, Deakin University, there are 11 further defendants who were respondents in the application made in the Tribunal. I will refer to the defendants collectively as ‘Deakin’ except where it is necessary to refer to the individual defendant.
In all the questions of law raised by the plaintiff, the central point is that a summary dismissal application under s 75 of the Act cannot be used as, or in a way analogous to, a ‘no case to answer’ application.
In the reasons that follow, I conclude that it is open to use the power in s 75 after the applicant has had every opportunity to identify the subject matter of the complaint and produce all available evidence in support. In these circumstances, where a submission is made that on the balance of probabilities the plaintiff has not established that there has been a contravention of the particular legislation in question, and there is nothing of substance which requires an answer from the respondent, the Tribunal is empowered to dismiss the application pursuant to s 75 of the Act.
I therefore conclude that there is no real or significant argument that the Tribunal fell into error in dismissing the complaints made by the plaintiff pursuant to s 75 of the Act after all the plaintiff’s evidence was heard. I further find that if I am wrong in my conclusion that there is no real or significant argument to be…
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
Sign in free to access the full text
Details
AGLC
Weber v Deakin University [2015] VSC 703
Case
[2015] VSC 703
Decision Date
CaseChat Overview and Summary
Weber was an applicant for a course at Deakin University. Upon being refused entry, Weber applied to the Victorian Civil and Administrative Tribunal (VCAT) seeking judicial review of the decision. VCAT dismissed Weber's application. Unsatisfied with the outcome, Weber now applies for leave to appeal the decision of VCAT under section 148 of the Victorian Civil and Administrative Tribunal Act 1998. The central issue before the court was whether Weber's application satisfied the statutory criteria for leave to appeal. The court noted that the criteria required Weber to demonstrate that there was a real or significant argument that VCAT had erred in law, and that such an error was of sufficient significance to warrant an appeal. The court found that Weber had failed to demonstrate that VCAT had erred in law, and further found that the alleged error was not significant enough to warrant an appeal. Accordingly, Weber's application for leave to appeal was dismissed.
The court carefully considered the reasoning of VCAT in dismissing Weber's application for judicial review. VCAT had found that Weber had not discharged the onus of demonstrating that the decision was legally erroneous, and that the alleged errors did not amount to a significant departure from the law. The court found that VCAT's reasoning was sound, and that Weber had failed to demonstrate that VCAT had erred in law. The court also found that even if VCAT had erred, the error was not significant enough to warrant an appeal. The court concluded that Weber had not satisfied the statutory criteria for leave to appeal, and accordingly dismissed Weber's application.