Appellant v Respondents

Supreme Court of Victoria|2016-04-14|Before: ZAMMIT J

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).

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.

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 and the application of the appellant was dismissed.

3 The appellant is self-represented. The appellant has identified the following 'questions of law'. It appears that the questions of law referred to by the appellant function as grounds of appeal:

Whether his Honour erred in law and misdirected himself by failing to adhere to the doctrine of stare decisis in making his judgment.
Whether his Honour erred in law and misdirected himself by making a judgment that was plainly wrong.
Whether his Honour erred in law and misdirected himself by making a judgment that was farthest from decisions by leading authorities, and consequently recast the manner in which subsequent decisions in VCAT would be decided upon.
Whether his Honour erred in law by dismissing the application, which ultimately denied the right for it to be brought on for an appeal hearing, (and judicial oversight) that was required to correct wrongs in both past and future VCAT decisions.
Whether his Honour erred in law and misdirected himself by making a judgment that would undermine both the general and public confidence in the legal system.

setting aside the order of his Honour;
an order that leave to appeal be granted and contemporaneously pursuant to r 77.06.2(5), the hearing of the application for leave to appeal be treated as the hearing of the appeal.

5 The following reasons address the preliminary issue as to the nature of an appeal pursuant to r 77.06. For the purpose of the hearing of the preliminary issue, the appellant relied on written submissions dated 5 March 2016. The respondent relied on written submissions dated 19 February 2016.

6 The appellant set out the relevant appeal process from a decision of VCAT to the Supreme Court pursuant to s 148 of the VCAT Act. In particular, the appellant noted the requirement that s 148(1)(b) mandates that leave to appeal must be sought and granted before an appeal from VCAT can be heard by the Trial Division of this Court. The appellant submitted that before an appeal can be made to the Trial Division from VCAT pursuant to s 148, there needs to be the two step process, namely, the determination of the leave to appeal and then the appeal itself. The appellant submitted that any appeal to the Trial Division, subject to the granting of leave to appeal, shall be constituted by a Judge of the Trial Division in the Supreme Court, and noted that the judicial powers of an Associate Judge are limited by rr 77.02(1)(a), (b) and 77.03(a).

7 The appellant noted that an Associate Judge has jurisdiction to hear and determine the leave application.

8 In the course of oral submissions, the appellant agreed that his central issue in relation to the appeal from the Associate Judge was that the Associate Judge did not have jurisdictional power to investigate the decision of VCAT 'to arrive at an outcome for granting leave to appeal. To do so would display an error of law'.[3]

9 The appellant submits that the Associate Judge reviewed the decision and reasons of the VCAT Member as though it were the appeal itself and made a determination to dismiss the application for leave to appeal. The appellant contends that the jurisdictional limits of the hearing of the leave to appeal application are confined 'to determining if as an absolute maximum, that there is real or significant argument to be put that error exists, notwithstanding that if a question of law that is of general or public importance is identified, will weight in favour of granting leave'.

10 In relation to the form of hearing of the appeal of the decision, the appellant submits that to give effect to r 77.06.9, it must be read down entirely so as to give it its proper construction. In particular, the appellant submitted that r 77.06.6 gives the Court discretionary powers in determining the procedure to hear an application for an appeal from an Associate Judge. The appellant referred to r 77.06.9(3) and noted that the Court, even in the absence of a notice of appeal, could, under its own motion, exercise its power to make and determine an appeal from an Associate Judge. The appellant noted that the same powers could be invoked so that the Court can make its own determination for any grounds that become obvious to the Court, as it sees fit, even if those grounds are not stated in the notice of appeal or that the grounds of the notice of appeal may not be sufficient and therefore may need to be amended.

11 The appellant sought leave to file and serve an amended notice of appeal. The respondents did not object.

12 The respondents submit that, based on the appellant's notice of appeal and questions of law therein, the appellant is treating the appeal from the Associate Judge as an appeal stricto sensu (in the strict sense), leading him to frame his questions of law by reference to what he contends are a range of errors in the Associate Judge's decision, rather than addressing explicitly by reference to his filed grounds the decision of VCAT, from which the substantive appeal to this Court under s 148 of the VCAT Act lies. The respondents submit that it is the obligation of the appellant to frame his grounds by reference to the order which the Associate Judge should have made, by reference to errors of VCAT, which would have resulted in leave being granted by the Associate Judge. It is submitted that this contrasts with the focus of the appellant's grounds, which are as to errors allegedly made by the Associate Judge and do not join issue explicitly with the orders and reasoning of VCAT which is the subject of the appeal to this Court. The respondents submit that the approach adopted by the appellant in framing his appeals in terms of an appeal in the strict sense is in legal error.

13 The respondents submit that the hearing of this matter on appeal from the Associate Judge should be conducted as a rehearing and not as an appeal in the strict sense, nor as a hearing de novo.

14 Senior Counsel, Dr Freckleton, for the respondents conducted a review of relevant Victorian authorities and provided a summary of the main features of the nature of an appeal pursuant to r 77.06, as follows:[4]

It is clear that a Trial Judge on appeal from an Associate Judge is empowered to "give any judgment and make any order which ought to have been given or made".
A Trial Judge may receive further evidence.
The history of the role of Trial Judges on appeal from Associate Judges clarifies that such an appeal is not a hearing de novo.
It would be anomalous, and precedent militates against, such an appeal being an appeal stricto sensu.
Thus such a hearing is to be regarded as a rehearing.
There is authority that is incumbent upon an appellant to establish some form of error on the part of the Associate Judge.
However, in some scenarios it has been held that this is not mandatory.
Where an Associate Judge has sat on a matter on appeal from a decision of VCAT and declined to grant leave to appeal, the focus should be upon not just whether the Associate Judge has made an error, but upon whether the grounds of appeal of an appellant do not justify the grant of leave, namely, whether the grounds of appeal disclose a real or significant argument that error exists in the VCAT decision.
It follows that if the Trial Judge concludes that a different order should have been made in this respect by the Associate Judge (necessarily focusing upon the appellant's grounds of appeal to the Supreme Court), there will be a finding of error on the part of the Associate Judge. (footnotes omitted).

The Nature of an Appeal from an Associate Judge

15 A person affected by the judgment or order of an Associate Judge may appeal. The Rules provide for the serving of a notice of appeal (77.06.4) and the contents of the notice of appeal (77.06.3). Relevantly r 77.06.3 provides:

(a) whether the whole or part only and, if as to part,

appeal and the judgment or order sought in place of that

16 Relevantly, r 77.06.9 sets out the Powers of a Judge of the Court hearing an appeal from a judgment or order of an Associate Judge. It provides:

(1) On an appeal referred to in Rule 77.06, a Judge of

17 The Supreme Court of Victoria Practice Note No 4 of 2012 states that the under the 2013 amendments to the Supreme Court Rules (General Civil Procedure) Rules 2005, including amendments to r 77.06, 'appeals from Associate Judges to a Judge of the Trial Division are to be by way of re-hearing rather than by re-hearing de novo'.[5] Practice Note 4 of 2012 has not been revoked. Further, the Supreme Court of Victoria Practice Note No 9 of 2015 states that the procedure for any appeal from an order made by an Associate Judge in relation to any proceeding in the Judicial Review and Appeals List is governed by Practice Note No 4 of 2012. It is also worth noting that there are no significant changes to the wording of r 77.06 under the new Supreme Court Rules (General Civil Procedure) Rules 2015.

18 The respondents' submissions cite Victorian authorities regarding the nature of an appeal from an Associate Judge. In Oswal v Carson [2013] VSC 355, Ferguson J referred to the amendment to Supreme Court (General Civil Procedure) Rules 2005 r 77.06 that came into effect in January 2013:

[the appeal and cross appeal] are no longer by way of rehearing de novo. Instead, they are rehearings which, in the absence of further evidence or a change in the law, ordinarily require the appellant to show error on the part of the Associate Judge before appellate power may be exercised.[6]

19 In Neely v Southern Cross Feeds Pty Ltd (No 2) [2013] VSC 238 ('Neely'), Hargrave J stated: 'appeals from Associates Justices ceased to be by way of re-hearing de novo and were replaced by appeals in the strict sense, requiring error to be demonstrated'.[7] In Applebee v Monash City Council [2013] VSC 481 ('Applebee') Croucher J stated that Hargrave J

appeared to be contrasting the old form of appeal by way of rehearing de novo with the new form of appeal requiring proof of error, rather than determining whether the new form of appeal was by way of an appeal in the strict sense or by way of rehearing.[8]

20 There is also some weight in Croucher J's statement that '[g]iven the power in Rule 77.06.9(3) to receive further evidence on questions of fact, it is likely that an appeal under Rule 77.06 is to be characterised as a form of appeal by way of rehearing rather than an appeal in the strict sense'.[9] Ultimately, Croucher J stated that:

Whether Rule 77.06 provides for an appeal by way of rehearing or an appeal in the strict sense, I accept the joint submission of the parties that "appellate interference may occur only where legal, factual or discretionary error is demonstrated"'.[10]

21 In Re Ascot Vale Self-Storage Centre Pty Ltd (in liquidation) [2014] VSC 75, Robson J refers to Neely and Applebee. Robson J stated that:

In so far as it is necessary for me to decide this point in the context of an application to tender fresh evidence, the nature of an appeal to a judge of the Trial Division from a decision of an associate judge is not of a nature that falls between an appeal to the Court of Appeal and a rehearing de novo. In my opinion, on an appeal from an associate judge to a judge of the Trial Division, fresh evidence may be admitted in the limited circumstances as described in McDonald, as it would be on an appeal to the Court of Appeal.[11]

22 In Patsuris v Gippsland and Southern Rural Water Corporation [2014] VSC 621, McDonald J stated that:

Counsel for both parties accepted that the basis of an appeal brought pursuant to r 77.06 against an order of an Associate Judge is an appeal by way of rehearing and the onus is on the appellant to establish that the order which is the subject of the appeal is the result of some legal, factual or discretionary error.[12]

23 In AusNet Electricity Services Pty Ltd v Liesfield [2014] VSC 474, Robson J stated that:

To say that an appeal is one by way of rehearing is not the end of the matter. As Gleeson CJ, Gaudron and Hayne JJ observed in Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission, an appeal by way of rehearing may be limited to the evidence that was before the court at first instance, or alternatively may allow for further evidence to be put before the appellate court. Additionally, their Honours observed that although it may be that further evidence can be admitted on an appeal of that kind, the appeal is usually conducted by reference to the evidence given at first instance. Ordinarily, if no further evidence has been admitted and there has been no relevant change in the law, appellate power is exercisable only where the appellant can establish some legal, factual or discretionary error in the decision at first instance.[13]

24 A recent case not cited by the respondents is instructive. In Wilson v Building Commission of Victoria [2015] VSC 629, John Dixon J succinctly stated that

[a]n appeal from a decision of an associate judge under r 77.06 is no longer by way of a hearing de novo and ordinarily requires the appellant to show error on the part of the associate judge before appellate power may be exercised. Rule 77.06 characterises an appeal as being by way of re-hearing, such that the appellant must demonstrate a legal, factual or discretionary error by the associate judge.[14]

25 John Dixon J accurately summarises the weight of the Victorian authorities. The appellant must demonstrate error, be it legal, factual or discretionary error, by the Associate Judge. New evidence can be admitted. The appeal is neither a hearing de novo nor an appeal stricto sensu. The appeal can be characterised as a rehearing, as set out in Supreme Court of Victoria Practice Note 4 of 2012.

26 The respondents also cited Mainstream Construction (Aust) Pty Ltd v Carr Electrical Pty Ltd [2014] VSC 317 ('Mainstream Construction'), although the respondents considered that 'the reasoning of the decision provides limited assistance'.[15] In that case, Cavanough J stated that 'the proposition that Mainstream must show error by the learned Associate Judge before this appeal can be allowed is not applicable to a case of the present kind'.[16] His Honour cites the Full Court of the Supreme Court of Victoria's decision in Freeman v Rabinov [1981] VicRp 52; [1981] VR 539 ('Freeman') for the proposition that the Supreme Court has the power to vary an order if the order can be said to have 'worked an injustice'.[17] Nevertheless, Cavanough J identified an error made by the Associate Judge, in case 'it were necessary to find error in the making of the order'.[18]

27 In Wilson v Building Commission of Victoria, John Dixon J referred to Mainstream Construction and stated that '[w]hether there is a need to identify error in the judgment of the associate judge in appeals from an interlocutory decision before an appeal may be allowed may be controversial'.[19]

28 It appears that the cases that have analysed whether a court order has 'worked an injustice' have involved a temporal element, specifically, an issue of proceedings being dismissed due to court documents not being filed on time. In Mainstream Construction the appellant had failed to submit affidavit material regarding its application for a retrospective extension of time. As a result the Associate Judge dismissed the proceedings. In Freeman the appellant had submitted a defective affidavit and as a result had not complied with the time limit set by a court order. Gibbs J's dissenting judgment in Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529 concerned an appellant who had not served appeal books by the deadline set by a court order.

29 In Wilson v Building Commission of Victoria the appellant contended that an Associate Judge dismissing an application for leave for an extension of time to commence an Order 56 proceeding had 'worked an injustice'. John Dixon J stated that the Associate Judge had considered the factor of injustice to the plaintiff should the application for an extension of time be refused, and his Honour cited the Associate Judge's decision, seemingly with approval:

Injustice is not just about the correctness of the decision, the whole question of injustice must be viewed against other factors, including Mr Wilson's conduct and the prosecution of his challenges, having regard to relevant time limits and the question as to whether there were other avenues available and taken to challenge the Magistrates' Court decision[20]

30 John Dixon J was not persuaded that any injustice flowed from the order of the Associate Judge:

The appellant asserts that injustice flows from his wrongful conviction by the magistrate. Assuming for the sake of argument that the appellant was unjustly convicted, any injustice in the result for the appellant flows from the refusal of the County Court to grant the appellant leave to appeal out of time. That is not injustice of the kind contemplated in Mainstream Construction. This is not a case where I would be minded, if otherwise persuaded, to set aside or vary the order without assigning error to the associate judge's decision.[21]

31 In AusNet Electricity Services Pty Ltd v Liesfield [2014] VSC 474, Robson J did not engage in an analysis of whether the Associate Judge's order had 'worked an injustice', stating that 'neither party sought to argue that an injustice had occurred of the kind addressed by Cavanough J'.[22] Neither party in this matter has argued that the Associate Judge's refusal of leave to appeal has worked an injustice. Furthermore, there is nothing on the facts to indicate that the refusal to grant leave to appeal in this instance has worked an injustice of the kind contemplated in Mainstream Construction.

Roy Morgan Centre Pty Ltd v Commissioner of State Revenue

32 The appellant referred to the High Court's decision in Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) ('Roy Morgan').[23] In the Court appearance on 10 March 2016, the appellant cited the following passage from that case:

Section 148 of the VCAT Act is concerned with the invocation of judicial power to examine the legal error, what has been done in the Administrative Tribunal. Although s 148 uses the word 'appeal', it is clear the Supreme Court is asked to exercise original, not appellate, jurisdiction and to do so in the proceedings which are of a nature judicial review[24]

33 The appellant stated 'on that basis Your Honour I argue that it's the original jurisdiction the appeal is to be conducted upon under s 148, then the original jurisdiction requires that you look at it on a re-hearing de novo'.[25]

34 In Roy Morgan, the appellant appealed a decision from VCAT to the Supreme Court of Victoria Trial Division. The Judge refused leave to appeal the VCAT decision. The appellant then appealed to the Court of Appeal. The Court of Appeal held that it did not have jurisdiction to hear an appeal from the Trial Division Judge's decision to refusal leave to appeal the VCAT decision. This was based on the Court of Appeal's interpretation of the VCAT Act 1998 s 148 and Supreme Court Act 1986 (Vic) s 17 as well as a previous Court of Appeal decision. Ultimately, the High Court distinguished the Victorian case law and held that the Court of Appeal did have jurisdiction to consider leave to appeal from the Trial Division Judge's decision.

35 In summary, Roy Morgan involved a question of whether the Court of Appeal in Victoria has jurisdiction to hear an appeal from a Trial Division Judge's refusal to grant leave to appeal. It is in that context that the majority Judges referred to 'original jurisdiction', 'appellate jurisdiction' and 'supervisory jurisdiction'.

36 The appellant seems to contend that appeals from VCAT decisions must be heard de novo because the High Court interpreted s 148 of the VCAT Act 1998 as giving the Supreme Court original jurisdiction. Put simply, Roy Morgan does not support that proposition. The majority did not discuss the nature of an appeal from an Associate Judge (or Master) or Trial Judge. The case did not discuss rehearings, hearings de novo or appeals stricto sensu.

37 If the respondents' narrow interpretation set out in [7] of the 19 February 2016 Outline of Submissions is accepted, then the appellant's grounds of appeal would be restricted to grounds by reference to the order which the Associate Judge should have made, namely, by reference to errors of VCAT. On that basis, the appellant's grounds of appeal would fail. I do not accept that the nature of an appeal pursuant to r 77.06 is as narrow as contended by the respondents. The appellant's grounds appear to be drafted as though it is an appeal in the strict sense, tasked with identifying legal error. The appellant is also free to argue that the Associate Judge has demonstrated factual and / or discretionary error. As such, the grounds pleaded by the appellant are not impermissible. However, this should not be taken to mean that the grounds will or will not succeed.

38 The matter before the Associate Judge was an application for leave to appeal on a question of law from VCAT. The appeal from the order of the Associate Judge is in relation to the decision whether to grant leave to appeal which requires that a question of law be identified and for the applicant to demonstrate there is a real or significant argument that error exists or there is sufficient doubt to justify a grant of leave. Rule 77.06.9 does not transform the nature of the appeal from VCAT, it is merely descriptive of the general powers of the Court on an appeal.

DEAKIN UNIVERSITY & Ors (as per the attached Schedule)

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

[2] Respondents' Outline of Submissions on Appeal dated 9 February 2016 [5]-[7].

[3] Appellant's Outline of Submissions on Leave to Appeal dated 5 March 2016, [14].

[4] Respondents' Outline of Submissions on Appeal dated 19 February 2016, [62]-[70].

[5] Supreme Court of Victoria Practice Note No 4 of 2012 [2].

[6] Oswal v Carson [2013] VSC 355 [11] citing Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission & Ors [2000] HCA 35; (2000) 203 CLR 194 [14].

[7] Neely v Southern Cross Feeds Pty Ltd (No 2) [2013] VSC 238 [5].

[8] Applebee v Monash City Council [2013] VSC 481 [12].

[11] Re Ascot Vale Self-Storage Centre Pty Ltd (in liquidation) [2014] VSC 75 [16] citing McDonald v McDonald [1965] HCA 45; (1965) 113 CLR 529.

[12] Patsuris v Gippsland and Southern Rural Water Corporation [2014] VSC 621 [68] citing Oswal v Carson [2013] VSC 355 [11]; Applebee v Monash City Council [2013] VSC 481 [9]-[20]; Re Nom de Plume Nominees Pty Ltd v Wallace-Smith [2014] VSC 75 [2]-[8].

[13] AusNet Electricity Services Pty Ltd v Liesfield [2014] VSC 474 [66] (citations omitted).

[14] Wilson v Building Commission of Victoria [2014] VSC 317 [8].

[15] Respondents' Outline of Submissions on Appeal dated 19 February 2016 [53]-[54].

[16] Mainstream Construction (Aust) Pty Ltd v Carr Electrical Pty Ltd [2014] VSC 317 [79] ('Mainstream Construction').

[17] Mainstream Construction [2014] VSC 317 [81] citing Freeman v Rabinov [1981] VicRp 52; [1981] VR 539.

[18] Mainstream Construction [2014] VSC 317 [86].

[19] Wilson v Building Commission of Victoria [2014] VSC 317 [40].

[20] Wilson v Building Commission of Victoria [2014] VSC 317 [37] citing Wilson v Building Commission of Victoria (Unreported, Supreme Court of Victoria, 30 April 2015) (Lansdowne AsJ) [18].

[21] Wilson v Building Commission of Victoria [2014] VSC 317 [52].

[22] AusNet Electricity Services Pty Ltd v Liesfield [2014] VSC 474 [73].

[24] Transcript of proceedings, Weber v Deakin University & Ors, 10 March 2016, 55 [5]-[12] citing Roy Morgan [2001] HCA 49; (2001) 207 CLR 72 [15] (Gaudron, Gummow, Hayne and Callinan JJ).

[25] Transcript of proceedings, Weber v Deakin University & Ors, 10 March 2016, 55 [13]-[16].

Civil and Administrative Tribunal Act 1998

Court (General Civil Procedure) Rules 2005

Supreme Court Rules (General Civil Procedure) Rules 2005

Supreme Court Rules (General Civil Procedure) Rules 2015

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