Youd-Holmes v Milford Hall Pty Ltd
[2004] VSC 183
•31 May 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 6827 of 2003
| ANTHEA YOUD-HOLMES | Appellant |
| v | |
| MILFORD HALL PTY LTD (ACN 006 049 449) (trading as CHOMLEY HOUSE) and WILLIAM TEMPLER | Respondents |
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JUDGE: | Whelan J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 May 2004 | |
DATE OF JUDGMENT: | 31 May 2004 | |
CASE MAY BE CITED AS: | Youd-Holmes v Milford Hall Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 183 | |
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Administrative Law - Appeals from Administrative Authorities - decision of Victorian Civil and Administrative Tribunal - whether any question of law raised - sexual harassment complaint - corroboration - whether corroborative evidence required to be taken into account - whether failure to take relevant consideration into account - no error of law
Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 97, 98 and 148; Equal Opportunity Act 1995 (Vic) ss 3, 85, 86, 87 and 102
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Rajendran v Tonkin [2004] VSCA 43; Roy Morgan v State Revenue (Vic) (2001) 207 CLR 72, followed.
Brown v Repatriation Tribunal (1985) 7 FCR 302; Commissioner of Taxation v Brixius (1987) 16 FCR 359, applied.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr A. Eidelson | |
| For the Respondents | Mr S. G. R. Wilmoth | James Taylor & Co |
HIS HONOUR:
This is an appeal pursuant to s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). The appeal is against an order of the Deputy President of the Victorian Civil and Administrative Tribunal, Mrs Mary Urquhart, made on 27 June 2003. The Deputy President dismissed the appellant’s complaint. The appellant’s complaint had been filed on 3 June 2002 and alleged sexual harassment by the second respondent to this appeal in breach of ss 85, 86 and 87 of the Equal Opportunity Act 1995 (Vic) for which, it was alleged, the first respondent to this appeal was vicariously liable under s 102 of the Equal Opportunity Act.
An appeal under s 148 cannot be instituted unless the Court of Appeal or the Trial Division of this Court gives leave to appeal. An application was made by the appellant seeking leave to appeal on a wide variety of grounds. Under s 148 a party may only appeal on a question of law. By an order made on 7 October 2003 Master Dowling granted leave to appeal on the following question:
“In considering if there was corroboration of the applicant’s evidence, should the Deputy President have considered whether the evidence of Peter Cecil and Derek Barker as to recent complaints by the applicant could, as a matter of law, constitute corroboration.”
The complaint heard by the Deputy President concerned behaviour alleged to have occurred in January 2000. The detail of the allegations is not presently relevant.
Tribunal’s reasons
The Deputy President gave detailed reasons for her decision. She set out the appellant’s complaints and the legislation. She then explained the way in which she considered that the burden of proof should apply, citing a number of authorities. She dealt with the evidence on behalf of the complainant, giving a summary of both the complainant’s evidence and of other evidence called in support of her claim, including evidence given by Mr Peter Cecil and Mr Derek Barker. Her summary of Mr Peter Cecil’s evidence indicates that he was a close friend of the complainant and that he gave evidence of a phone call he received from the complainant shortly after the first alleged incident in which the complainant told him of the conduct alleged to constitute harassment on the part of the second respondent. The Deputy President summarised Mr Derek Barker’s evidence, indicating that he was a friend and former business partner of the complainant and that she had also rung him making contemporaneous complaints.
In relation to Mr Peter Cecil’s evidence the Deputy President commented:
“I considered his evidence consisted mainly of matters told to him by the complainant.”
In relation to Mr Derek Barker’s evidence the Deputy President commented:
“Mr Barker’s evidence does not corroborate the evidence of the complainant but rather consists of things she told him.”
The Deputy President set out the evidence called on behalf of the second respondent. He maintained the complaint was a fabrication. She then referred to a number of aspects of the complainant’s evidence which the Deputy President considered relevant including certain identified inconsistencies in her evidence, her failure to call a Ms Sandra Smalley, her failure to mention in an earlier statement her telephone calls to Mr Peter Cecil and Mr Derek Barker, the omission from her witness statement of reference to someone from whom she sought treatment for “shock, anxiety and depression” named Ms Cynthia Hickman, and what the Deputy President found to be a failure to satisfactorily explain certain behaviour of the complainant towards the second respondent after the alleged events. The Deputy President also commented upon the evidence of the second respondent, finding his evidence unsatisfactory in certain respects.
The Deputy President concluded that the complainant had not satisfied the burden of proof in establishing the very serious allegation of sexual harassment. The Deputy President gave a number of reasons for not accepting the complaint’s evidence. In brief summary the Deputy President’s reasons were:
○ the failure to call Ms Hickman;
○her view that complaints made to doctors in 2002 did not assist in establishing the circumstances in question;
○her finding that the complainant was unconvincing as a witness because of a failure to tell “the whole story” in relation to a certain important matter and because of certain “discrepancies” in her evidence;
○what the Deputy President described as an “unusually familiar work and social relationship” between the complainant and the second respondent;
○a lack of “corroborative evidence”. I will refer to this reason in more detail below; and
○the complainant’s behaviour in socialising with the second respondent after the alleged harassment, which behaviour the Deputy President considered had not been satisfactorily explained.
For present purposes, the reason concerning lack of “corroborative evidence” is the relevant matter. The Deputy President’s reasons in this respect read as follows:
“Lack of corroborative evidence concerned me. Little, if any, weight can be given to the evidence of the lay witnesses called by the complainant. I find that rather than constituting corroborative evidence it consists mainly of ‘recitations’ of what the complainant has told the witnesses about the alleged incidents. I find none to be witnesses of fact to the allegations forming the subject matter of the complaint.”
Submissions on behalf of the appellant
Mr Eidelson, who appeared on behalf of the appellant, commenced by outlining the circumstances in which the evidence of Mr Barker and Mr Cecil, and the evidence of another witness one Mr Cottrell, was called. He said this evidence had been called in order to meet an allegation of recent invention made by the respondents and put to the appellant at the Tribunal hearing. He submitted that nowhere in the reasons did the Deputy President make any criticism of the evidence of Mr Barker or Mr Cecil. He submitted that the respondents had not put a submission that their evidence was untruthful. He said the issue on the appeal was whether the Deputy President should have considered this evidence. He submitted that if complaint had been made to credible witnesses in January 2000 then the complaint could not have been invented some years later. His submission was that this was a relevant matter which was totally ignored by the Deputy President. In this respect he referred to the Deputy President’s reasons at paragraphs 25-30. He then referred to the Deputy President’s conclusion concerning corroborative evidence, which I have quoted above, and made the submission that a relevant matter, being the evidence of Mr Cecil and Mr Barker, had been totally disregarded.
Mr Eidelson also took me to paragraphs 19 and 20 of the Deputy President’s reasons where she summarised the evidence of Mr Cecil and Mr Barker. He submitted that she had left out of her summary an important part of Mr Cecil’s evidence, being evidence as to a second phone call by the complainant, and that she had left out of the summary of Mr Barker’s evidence an important matter, being Mr Barker’s evidence that when the complainant rang him she was in a state of great distress and alarm.
When asked to articulate the error of law upon which the appellant relied, he submitted that it was a failure to consider a relevant matter, being the corroborative evidence of Mr Cecil and Mr Barker. He submitted that the matter was relevant because it met the allegation of recent invention, it bolstered the credibility of the complainant, and it constituted corroborative evidence of distress of the kind dealt with in a different context in cases such as R v Flannery.[1]
[1][1969] VR 586.
The appellant had filed written submissions and submissions in reply. These submissions were essentially to the same effect as the submissions made orally. Some additional authorities were cited.
Submissions on behalf of the respondents
Mr Wilmoth appeared on behalf of the respondents. He submitted that the appellant’s submissions on appeal amounted to saying that the Deputy President had failed to attach sufficient weight to the evidence of Mr Cecil and Mr Barker. Mr Wilmoth submitted that the Deputy President had recognised the evidence of Mr Cecil and Mr Barker and, he submitted, had recognised that their evidence could constitute corroborative evidence, but that she had determined that it had little weight. Mr Wilmoth submitted that corroboration was not required as a matter of law. He submitted that the entire argument really went to issues of weight and that accordingly the appeal was untenable. He submitted that the Deputy President was entitled to place little weight on the evidence and referred to the decision in R v Sailor.[2] At one point Mr Wilmoth observed that the Deputy President had on one view "elevated" corroboration higher than she needed to. He submitted that even if one accepted that the evidence of Mr Cecil and Mr Barker adequately met and rebutted the suggestion of recent invention that did not constitute justifiable criticism of the manner in which the Deputy President dealt with these witnesses. The respondent had also filed written submissions. They were substantially to the same effect as the oral submissions.
[2][1994] 2 Qd R 342.
Nature of VCAT hearings
The sections of the Equal Opportunity Act under which complaint was made do not contain any requirement for corroborative evidence. Complaints under the Equal Opportunity Act are, subject to the procedures otherwise provided for, within the jurisdiction of the Victorian Civil and Administrative Tribunal (Equal Opportunity Act Part 7 Division 7). Pursuant to s 97 of the Victorian Civil and Administrative Tribunal Act the Tribunal is required to act fairly and according to the substantial merits of the case in all proceedings. Section 98 of the Victorian Civil and Administrative Tribunal Act relevantly provides:
“(1) The Tribunal –
(a)is bound by the rules of natural justice;
(b)is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures;
(c)may inform itself on any matter as it sees fit;
(d)must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit.
. . .”
Nature of the appeal
Under s 148 of the Victorian Civil and Administrative Tribunal Act a party may, if given leave, appeal on a question of law. In Roy Morgan v State Revenue (Vic),[3] a majority of the High Court described the operation of the section in the following terms:
“Section 148 of the VCAT Act is concerned with the invocation of judicial power to examine for legal error what has been done in an administrative tribunal. Although s 148 uses the word ‘appeal’, it is clear that the Supreme Court is asked to exercise original, not appellate, jurisdiction and to do so in proceedings which are in the nature of judicial review.”
[3](2001) 207 CLR 72 at 79.
Section 148 provides for the institution of proceedings in the Supreme Court, by leave, in which the legal correctness of what the Tribunal has done can be challenged. In this context it is important that it be emphasised that the existence of a question of law is not merely a pre-condition to an appeal, it is the only permitted subject matter of an appeal. As the Full Court of the Federal Court observed in Brown v Repatriation Tribunal,[4] in relation to a materially similar Commonwealth provision:
“The existence of a question of law is not merely a qualifying condition to ground an appeal from a decision of the Tribunal; rather, it and it alone is the subject matter of the appeal, and the ambit of the appeal is confined to it.”
[4](1985) 7 FCR 302 at 304 and see also Commissioner of Taxation v Brixius (1987) 16 FCR 359 at 363-365, and Roads Corporation v Ducakis [1995] 2 VR 508 at 517.
It follows from the above that if an appellant is unable to identify any question of law which affected the Tribunal’s decision and in respect of which the appellant contends that it has erred then the Court simply has no jurisdiction to interfere and the appeal must be dismissed.[5]
[5]See Commissioner of Taxation v Brixius (1987) 16 FCR 359 at 365-367.
Identifying the error of law
There are occasions when the law requires certain evidence to be corroborated. One example, in certain jurisdictions, arises in the context of the crime of perjury. At one time there was a general rule of practice that juries ought to be warned of the dangers of acting on uncorroborated evidence in sexual offences. Both the appellant and the respondents referred to cases decided in this context, and in particular R v Flannery,[6] R v Sailor,[7] and R v Redpath.[8] Without analysing what was once a potentially difficult issue, generally speaking contemporaneous complaint was not regarded as corroborative but in certain circumstances observed physical distress might be so regarded.
[6][1969] VR 586.
[7][1994] 2 Qd R 342.
[8](1962) 46 Cr App R 319.
No issue of law is raised by this appeal in this context. There is no requirement that corroborative evidence be found. The Deputy President looked for what she called corroborative evidence because, it seems to me, there were aspects of the complainant’s evidence which she found unsatisfactory and she was looking for evidence of the occurrence of the incidents complained of which was not sourced from the complainant herself. The evidence from witnesses other than the complainant did not satisfactorily meet her concerns. She formed the view, as she was entitled to in my view, that little weight could be given to their evidence in the circumstances.
Reference was made in the appellant’s submissions to the cogency of the evidence of contemporaneous complaint in meeting the allegation of recent invention. That may be so. I was told during the course of the appeal that this evidence was objected to on behalf of the respondents at the hearing. No doubt the Deputy President admitted it because an allegation of recent invention had been made, although given the provisions of s 98 of the Victorian Civil and Administrative Tribunal Act she might have admitted it if she had considered it helpful in any event.[9] I agree with Mr Wilmoth's submission that even if the recent invention allegation was met by this evidence, there is no consequential criticism to be made of the Deputy President's reasons in terms of the subject matter of this appeal.
[9]As to the position where rules of evidence apply, see: Nominal Defendant v Clements (1960) 104 CLR 476 at 479-480 per Dixon CJ.
In my view, no issue of law concerning what can or does constitute “corroborative” evidence arose in the proceedings and no error of law occurred in the way the Deputy President dealt with the evidence of Mr Barker and Mr Cecil.
However, the way in which the matter was put by the appellant on appeal was not on the basis that the Deputy President had misdirected herself as to what was the true nature of corroborative evidence, but rather that the Deputy President had committed an error of law by “totally disregarding” the corroborative evidence of Mr Peter Cecil and Mr Derek Barker. The appellant submitted the Tribunal had failed to take into account a relevant matter, being the evidence given by Mr Cecil and Mr Barker, and particularly the evidence of distress. I am not satisfied that, put this way, the submission made falls within the ambit of the question for which Master Dowling gave leave, but for the following reasons I do not believe any error of law was demonstrated to have occurred in any event.
In order to establish an error of law as a result of a failure to take into account a relevant matter, it must be shown that the decision-maker had not taken into account a matter which he or she was bound by the relevant statute, either explicitly or implicitly, to take into account.[10]
[10]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-41; Rajendran v Tonkin [2004] VSCA 43 at [20].
A failure to refer to a relevant matter may indicate a failure to take it into account.[11]
[11]See discussion in Body Corporate Strata Plan No 4166 v Stirling Properties Ltd (No 2) [1984] VR 903 and in Hunnam v Evans [2003] VSC 284; (2003) 129 LGERA 106 at [14] – [24].
The Equal Opportunity Act’s relevant provisions are the objectives in s 3, the prohibition of sexual harassment in Part 5, the vicarious liability provision in Section 102, and the complaints provisions in Part 7. Those provisions do not expressly require evidence of complaint or distress to be taken into account, nor do they, from their “subject-matter, scope and purpose”,[12] impose such a requirement on the Tribunal by implication. No submission directed towards establishing any such express or implied requirement in the legislation was made on the appeal.
[12]Ministry of Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 39-40.
In my view, the Equal Opportunity Act did not bind the Deputy President to take into account "corroborative" evidence in the manner suggested. In any event, in my view the Deputy President did take the evidence of Mr Peter Cecil and Mr Derek Barker into account. She refers to it in her summary of the evidence. In her reasons she determines to ascribe it little weight. This was all done in the course of considering whether the burden of proof of the relevant factual matters had been discharged. The fact that the Deputy President did not refer to the evidence of distress is not significant. As indicated previously, the Deputy President looked for evidence that was not sourced from the complainant herself because she was concerned about the credibility of the complainant's evidence. She was unable to find evidence that satisfied her in that respect, including in the evidence given by Mr Cecil and Mr Barker. I can find no error of law here.
The appeal is dismissed.
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