Appellant v Respondent

1 This is an appeal from a Master granting Zoltan Csizmadia-Estok leave to appeal on a question of law pursuant to s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 ('the VCAT Act') and, further, extending the time within which that appeal may be initiated pursuant to s 148(5) of the VCAT Act.

2 On 3 November 2005, Zoltan Csizmadia-Estok ('the complainant') lodged a complaint under s 104(1) of the Equal Opportunity Act 1995 ('the Act') with the Equal Opportunity Commission ('the Commission') against the Bendigo Bank Ltd ('the Bank'). Under s 108(1) of the Act, the Commission declined to entertain the applicant's complaint. Under s 108(2) and (3) of the Act, the applicant requested the Commission to refer the matter to VCAT. The Commission did so by letter dated 24 February. On 2 August 2006, VCAT summarily dismissed the complaint under s 75 of the VCAT Act. On 12 February 2007, the Master granted leave to appeal the decision of VCAT of 2 August 2006 and extended the time period for the filing of the originating process. The Bank now appeals from that decision to a judge of the Trial Division under O 77.05 of the Rules. Accordingly, I now hear de novo[1] the application for leave to appeal from VCAT.

3 The complainant makes two main allegations referred to as the 'police complaint' and the 'account claim'. Both relate to the complainant's dealings as a customer of the Bank. The essence of the discrimination alleged by the complainant is that the Bank treated him less favourably than someone without his physical features as well as the race and religion wrongly imputed to him by the Bank's employees.[2]

4 The allegations founding the 'police complaint' occurred on 5 November 2003 when the complainant went to one of the Bank's Mildura branches to deposit a large amount of cash. Apart from the cash, the complainant was carrying a series of items which, so the applicant claims, the Bank's staff thought was a bomb. The complainant conversed with one of the Bank's employees - the exact details of which are disputed. It is not disputed that the Bank's staff referred the matter to the police who charged the complainant with offences under s 317A of the Crimes Act 1958 relating to the placing of an article with intention to induce a false belief that it is liable to explode. These charges were later dismissed.

5 The allegations founding the 'account claim' occurred at one of the Bank's Melbourne branches in June or July 2005 - the exact date is disputed. In any event, the complainant went into the Bank and spoke to one particular employee of the bank by the name of Ms Templar. He enquired about opening an account and mentioned that he had previously been a customer of the bank. It is undisputed that Ms Templar, upon entering the applicant's name into a database, was met by a warning symbol which referred her to the Bank's fraud department. Upon ringing that department, Ms Templar was told, due to his previous dealings with the Bank, not to accept the applicant as a customer. Accordingly, the Bank refused to open an account for the complainant. In this way, the complainant claims that the same occurrences which lead to the Bank making a complaint to the police in 2003 also lead to the Bank refusing him a service in June or July 2005.

6 I will deal with the issues of the granting of leave and the extension of time in turn.

7 Guidelines as to when a court will grant leave to appeal pursuant to s 148(1) of the VCAT Act are set out by the Court of Appeal in Secretary to Department of Premier and Cabinet v Hulls.[3] In summary, Phillips JA stipulates:

1. Whether leave is granted or not must always depend upon the justice of the particular case;[4]

2. If leave is to be granted, the applicant must at least identify a question of law (as distinct from a question of fact) which is important to the substantive appeal's succeeding or failing;[5]

3. The applicant need not establish an error below - that is for the appeal itself. Rather, the applicant will be required to show that there is a real or significant argument to be put that error exists;[6]

4. Although not essential, the applicant may identify a question of law that is of general or public importance. This will weigh in favour of granting leave;[7]

5. Once a question of law has been identified which bears directly upon the relief which will be sought in the appeal, and once it has been shown that there is sufficient doubt attending that question to justify the grant of leave to appeal, leave will ordinarily be granted if the order below is a final order[8] or final in its effect;[9] and

6. Where the order sought to be appealed is an interim order, there may be reasons bearing on the justice done to both parties for not granting leave to appeal, eg, where granting leave to appeal will result in an unnecessary interruption to the substantive proceedings.[10]

8 Subject to his Honour's emphasis that the guidelines laid out are not hard and fast rules, he states:[11]

When leave is sought to appeal under s. 148, it will be necessary for the applicant to identify a question of law which is relevant to the granting of the relief sought on appeal. The importance of the question, either generally or to the would-be appellant in the particular case, will probably be relevant. The applicant must show that there is a real or significant argument to be put on that question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave. Moreover, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice, although, where the order below is final, that injustice will often be more readily discernible.

9 The parties made submissions as to whether the questions at hand in this case disclosed, technically speaking, a 'question of law' for the purposes of s 148(1).

10 VCAT's reasoning[12] in coming to its conclusion that the complaint should be summarily dismissed is very clear. VCAT proceeded, for the sake of argument, upon the basis that the complainant's basic factual allegations were made out.[13] No oral or affidavit evidence was given.[14]

11 That said, although the complainant's basic factual allegations were understood, VCAT held that there would be no basis upon which a tribunal of fact could reasonably draw a nexus between the Bank's conduct and the complainant's physical, racial or religious attributes. Firstly, with respect to 'the police claim,' VCAT stated:[15]

[S]ince neither the Bank nor its staff have expressly stated that the matter was referred to the police because of Mr Csizmadia-Estok's race, physical features or religious belief or activity, he must, if the matter went to hearing, prove that a substantial reason for referral was imputed Middle Eastern national or ethnic origin, imputed Muslim religious belief or activity, or that his physical features may have led to the belief that he was similar to (or was perhaps) a terrorist. The way in which such an inference must operate is that it must be open to the Tribunal from the primary facts and there would have to be no equally probable or more probable non-discriminatory explanation for the Bank's conduct. In my view, such an inference would not be reasonably open to the Tribunal from the primary facts if the matter went to hearing.

Even on the complainant's own material, an equally or more probable non-discriminatory explanation is available, namely that Ms Evans simply believed that Mr Csizmadia-Estok was carrying a bomb, or something likely to explode, and it was this fear that prompted her to report the matter to her manager or perhaps to refer it to the police.

12 Second, VCAT then noted that the material put forward by the complainant does not disclose a relevant comparator against which the complainant could prove that his attributes were the cause of the Bank's conduct. Third, VCAT doubted whether the referral of the matter to the police could constitute 'detriment' connected with 'the provision of services' as required under the Act. VCAT's fourth reason was that the Act did not intend to prohibit a party in the position of the Bank from acting in the manner that they did.[16]

13 VCAT's reasons with respect to 'the account claim' were much the same.[17]

14 State Electricity Commission of Victoria v Rabel & Anor[18] concerned the review of a decision by the Equal Opportunity Board pursuant to s 44C(1) of the Equal Opportunity Act 1984 (now repealed)[19] to summarily dismiss a complaint on the basis that it was 'frivolous, vexatious, misconceived or lacking in substance.' Phillips JA (with whom Ormiston and Tadgell JJA agreed) held that, by confining the complainant to his written materials in ascertaining whether it was 'frivolous, vexatious, misconceived or lacking in substance', the Board fell into error.[20] That said, Phillips JA considered that, if a complainant indicates that the whole of their case is contained in the documentary material put before the Board (here VCAT), then the Board is entitled to determine the matter by asking whether, on all of that material before it, the complainant will make out his or her case if the proceeding is allowed to continue.[21]

15 The current provision corresponding with that under consideration in Rabel is s 109 of the Act - not s 75 of the VCAT Act upon which VCAT relied in this instance to summarily dismiss the complainant's claim. Nonetheless, I observe that in Norman v Australian Red Cross Society,[22] VCAT held that the considerations of the Court in Rabel applied to s 75 of the VCAT Act.

16 Despite VCAT's declaration that it was taking the complainant's basic allegations as primarily made out, in my view there is no doubt that VCAT's reasons presuppose a certain unfavourable position as to the state of the evidence that the complainant was likely to lead in order to make out his claim. This raises the question of whether VCAT transgressed the principle in Rabel. It is apparent that the complainant would in all likelihood have lead evidence beyond just documentary materials.

17 A more general question of law that requires clarification for these purposes is the use and operation of s 75 of the VCAT Act with respect to matters referred to VCAT under the Act. In all the circumstances I discern that there is potential for evidence beyond the documentary form. It seems to me that so much is at least arguable for present purposes.

18 To use the words of Phillips JA in Hulls, the potential for injustice is more readily discerned in this instance because VCAT's order was final in its effect.[23] It denied the complainant the opportunity to have his full claim heard.

19 On this basis, I would grant leave for the complainant to appeal.

20 Before the Master, the complainant sought an extension of time within which to bring the appeal to this Court pursuant to s 148(5) of the VCAT Act. Under 148(2) of the VCAT Act, an application for leave to appeal must be made no later than 28 days of the order of VCAT. In this instance, the decision of VCAT was made on 2 August 2006. The appeal from that decision was not properly initiated until 28 September 2006.

21 As disclosed by the affidavit of Hugh Stephen Middleton sworn 29 September 2006, the complainant's solicitors did attempt to initiate an appeal in time on 30 August 2006. I use the word 'attempt' because, rather than filing an originating motion seeking an order that the plaintiff have leave to appeal to the Trial Division as required under s 148(1)(b) of the Act, the complainant's solicitors actually filed a notice of appeal to the Court of Appeal of this Court. The precise reason for this mistake is not disclosed by the affidavit.

22 As disclosed by the affidavit of Peter John Lupson sworn 18 October 2006, the Bank's solicitors informed the complainant's solicitors of their error on 1 September 2006 and 13 September 2006. The next the Bank's solicitors heard of the matter was on 4 October 2006, when they received a facsimile notifying them that the complainant had issued an originating motion and summons in the Supreme Court on 2 October 2006.

23 This case bears some similarity to Equuscorp Pty Ltd v Jackson & Ors[24] where a would-be appellant wrongly filed a notice of appeal with the Court of Appeal as opposed to the Trial Division due to a misunderstanding of the Rules. Having weighed up the circumstances, Kenny JA (with whom Charles JA agreed) allowed the proceeding to continue and made orders amending the appellant's originating document so that it complied strictly with the Rules. In doing so, Kenny JA stated:[25]

[I]t [does not] seem to me likely that the judges of the Court intended that a party which has a right of appeal conferred by Parliament and which has instituted the appeal within the time allowed should lose the right simply because its solicitors have made an application upon a mistaken view of the operation of the Rules.

24 The circumstances here are slightly different. The right of appeal with which I am concerned is not a right under the Rules but under the VCAT Act.[26] That said, the same considerations apply. Further, Kenny JA iterated the basic principle that when exercising its discretion under the Rules, 'the Court is called upon to weigh up the extent to which the appellant would be prejudiced by the Court refusing its application and any prejudice to the respondents occasioned by granting it.'[27]

25 In this instance, the prejudice done to the Bank is minimal. It was aware of the intentions of the complainant within the statutory period. Further, the Bank was faced, upon the proper initiation of the appeal, with no new point of law to countenance. The only real change in circumstance upon the initiation of the appeal in the proper form was the change of jurisdiction.

26 As the Bank concedes, the merits of the complainant's appeal is relevant in considering whether to extend the relevant time period. My conclusions as to the potential merits of the complainant's case and the importance of the appeal are already stated. When this is considered in light of the complainant's bona fide attempt to adhere to the time requirements laid down by the VCAT Act as well as the potential injustice done to the complainant were the extension not granted, I am satisfied that the extension of time should be granted.

27 The Bank made reference to the incompetence of the complainant's legal representatives. This is only relevant to the extent that it translates into prejudice for the Bank. As explained, this is very little.

28 I would accordingly dismiss the appeal from the Master.

[1] O 77.05(5), SCR.

[2] See under the Equal Opportunity Act 1995, s 8.

[3] [1999] VSCA 117; [1999] 3 VR 331 ('Hulls').

[4] Ibid 335.

[5] Ibid 335 -36.

[6] Ibid 335.

[7] Ibid.

[8] Ibid 336.

[9] Ibid 337.

[10] Ibid 336.

[11] Ibid 337.

[12] Csizmadia-Estok v Bendigo Bank [2006] VCAT 1566.

[13] See, eg, ibid [8].

[14] See ibid [8].

[15] Ibid [21].

[16] Ibid [23]-[25].

[17] Ibid [26]-[28].

[18] [1998] 1 VR 102 ('Rabel').

[19] The current equivalent, in similar wording, is the Equal Opportunity Act 1995, s 109_._

[20] Rabel [1998] 1 VR 102, 119.

[21] Ibid.

[22] (1998) 14 VAR 243.

[23] See Hulls [1999] VSCA 117; [1999] 3 VR 331, 337.

[24] (Unreported, Supreme Court - Court of Appeal, Charles and Kenny JJA, 15 June 1998).

[25] Ibid.

[26] Section 148(5).

[27] Above n 24.