Applicant/Respondent v Respondent/Appellant

2 Turner is a secondary student presently in year 10 and next year she will commence her VCE. Rebekah has a severe learning disability and claims to need access to a full time teacher's aide. She lodged a complaint at VCAT alleging discrimination under the Equal Opportunity Act 1995 against the State of Victoria for failing to provide a full time teacher's aide.

3 On 22 May 2007 VCAT published the following document entitled "Order" :

Pursuant to s 136 of the Equal Opportunity Act 1995 -

1. This Tribunal finds the complaint proven in part. It finds that the Respondent breached section 37(2)(1) of the Act in that it indirectly discriminated against the Complainant on the basis of her impairment by imposing a requirement or condition that she access her education at Kilsyth Primary School in 2000 in maths and English, at Kalinda Primary School in 2002 and 2003 in maths and English , at Sherbrooke Community School in 2004 and 2005 in maths and connected curriculum and at Ringwood Secondary College from 1 February 2006 to 22 March 2006 inclusive in history, maths, English and science without a full-time teacher's aide, so limiting her participation in and access to curricula in those classes, and diminishing her opportunity to attain successful educational outcomes in those classes, thereby limiting her access to benefits provided by the Respondent.

2. In all other respects, this complaint is found not proven and is dismissed.

3. The issue of remedy will be addressed at a directions hearing to be held at 10.00 am on 9 July 2007 at 55 King Street, Melbourne.

4. The parties' costs are reserved. The parties have liberty to apply on reasonable notice to the Tribunal and to each other.

4 The State of Victoria applied before a master for leave to appeal the aforesaid order.[1] In the intervening period, VCAT postponed the hearing on remedy pending the outcome of these proceedings in the Supreme Court.

5 The appeal proceeds as a hearing de novo before me[2] and I must be satisfied that leave to appeal the order should be granted in accordance with the established principles.[3] Before proceeding to the substantive issue of whether leave should be granted on the basis that an arguable error of law has been made out, a preliminary issue arose. It was submitted for Rebekah that no order had been made at this stage by the Tribunal and that the application for leave to appeal should be refused. The parties agreed to my hearing and determining the preliminary issue. It was further agreed that if the preliminary issue was decided for the State of Victoria, then the appellant, Rebekah, would still be heard as to the balance of the appeal from the master as to whether the leave to appeal should have been granted.

6 The governing section is s 148(1)(b) of the VCAT Act. It stipulates when a party may appeal. It provides:

(1) A party to a proceeding may appeal, on a question of law, from an order of the Tribunal in the proceeding -

(b) to the Trial Division of the Supreme Court in any other case -

if the Court of Appeal or the Trial Division, as the case requires, gives leave to appeal.

7 The question here is whether the document of the Tribunal was an order under s148 of the VCAT Act. The Tribunal hearing the complaint and in issuing the document entitled "Order" acted under s 136 of the Equal Opportunity Act. The section gives VCAT its authority to determine complaints and also directs how the Tribunal may dispose of complaints. It provides:

After hearing the evidence and representations that the parties to a complaint desire to adduce or make, the Tribunal may -

(a) find the complaint or any part of it proven and make any one or more of the following orders -

(i) an order that the respondent refrain from committing any further contravention of this Act in relation to the complainant;

(ii) an order that the respondent pay to the complainant within a specified period an amount the Tribunal thinks fit to compensate the complainant for loss, damage or injury suffered in consequence of the contravention;

(iii) an order that the respondent do anything specified in the order with a view to redressing any loss, damage or injury suffered by the complainant as a result of the contravention; or

(b) find the complaint or any part of it proven but decline to take any further action in the matter; or

(c) find the complaint or any part of it not proven and make an order that the complaint or part be dismissed.

8 It was submitted for the State of Victoria that the Tribunal made an order properly construed as a final order and, therefore, the preliminary issue should be decided in its favour. It was submitted that paragraphs 1 and 2 of the Tribunal document finally determined the central issue in the proceedings as to a complaint of discrimination. The Tribunal's document was to be construed as equivalent to an order determining liability with damages to be assessed: see City of Camberwell v Camberwell Shopping Centre.[4] Further, it was argued, even if the order in paragraph 1 of the Tribunal document was interlocutory, the State of Victoria could still seek leave as the Tribunal had made an order: see Derring Lane Pty Ltd v Port Phillip City Council.[5]

9 A party may only appeal from an order of VCAT (and therefore only seek leave to appeal an order), not a mere ruling: see s 148 of the VCAT Act; also, Sigma Construction (Vic) Pty Ltd v Maryvell Investments Pty Ltd.[6] In Sigma, the ruling was described by Batt JA as providing "the foundation for or the premise of the order [made]"[7] and therefore an appeal could be made.

10 The task here is to construe what the Tribunal document represented. The Tribunal is a body created by statute and may only exercise the powers vested in it and by virtue of law. The Tribunal is not a court exercising jurisdiction under common law to award damages. Specifically, under s 136 of the Equal Opportunity Act, the Tribunal was constrained to one of four things: first, to find the complaint or any part proven[8] and it did so; secondly, to order the restraint of further contravention, the payment of a specified amount and order specific matters to redress loss, damage or injury;[9] thirdly, to find the complaint or any part of it proven but decline to take any further action;[10] or, fourthly, to find the complaint or any part of it not proven and dismiss it.[11] The section does not contemplate or classify an interim or final finding as reached by the Tribunal here as constituting an order. Properly construed here the Tribunal found the complaint proven in part, that indirect discrimination as specified had occurred in breach of the Equal Opportunity Act[12] and that otherwise the complaint was found not proven and was dismissed leaving the question of remedy to be determined subsequently. Thus the Tribunal made a finding under s 136 of the Equal Opportunity Act. However, its only order was the dismissal of the remainder of the complaint, thereby, invoking paragraph (iv) of s 136 (a). Insofar as the Tribunal acted positively it merely made findings. It did not order (as properly understood by the expression) restraint, payment or redress or decline to take further action or dismiss the entire complaint. In specific terms the Tribunal completed the first part of the exercise of its statutory function under the Equal Opportunity Act in making a finding but it is yet to proceed to the second part of its function, namely to make an order. Properly construed, paragraph 1 of the order does not constitute an order for the purposes of s 136 of the Equal Opportunity Act.

11 It is irrelevant to this context to draw upon the demarcation between interlocutory and final orders. There is a large body of law upon the topic.[13] The approach in City of Camberwell, as relied upon by the State of Victoria is not to the point. In that authority there was an order for judgment (with damages to be assessed) with all its inherent meaning and consequences. A court is empowered to make such an order. By contrast, VCAT had no such power. As at the date of the order made by VCAT, the Tribunal was not ready to take the next step after making a finding, that was to come after further hearings. It was conceded for Rebekah that there would probably be no evidence called at the resumed hearing and that the hearing would be devoted to submissions. For the State of Victoria, it was argued that these circumstances reinforced why the order made on 22 May 2007 by VCAT constituted an order under s 136 of the Equal Opportunity Act and s 148 of the VCAT Act. The argument is irrelevant. The fact remains that the Tribunal has not yet taken the necessary statutory step or steps to constitute the making of an order.

12 One way to test the situation might be to ask, what did the order of the Tribunal on 22 May 2007 amount to if it was not an order? At most it was a finding (so far as paragraph 1 arises) and as such did not go far enough to amount to an order. I note that in Derring Lane v Port Phillip[14] Balmford J considered it open to a party to seek to appeal an interlocutory decision of VCAT. However, the governing statute here is different, the Tribunal in Derring Lane had not been constrained by s 136 of the Equal Opportunity Act. I also note that in Landsal Pty Ltd v REI Building Society[15] a distinction was drawn between a pronouncement of a judgment or order and a determination which does not necessarily dispose of a question. Again, I am drawn back to the governing statute in this case. It proscribed the way in which the Tribunal might dispose of a complaint and that is yet to occur.

13 It follows that I am not persuaded that an order has been made at this stage by the Tribunal that may be the subject of an application for leave to appeal. I find in favour of the appellant on the preliminary question. I allow the appeal from the master and dismiss the application for leave to appeal.

[1] Pursuant to s 148 of the VCAT Act 1998.

[2] Rules of the Supreme Court, Order 77

[3] Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331.

[5] [1998] VSC 182; (1998) 14 VAR 460, [9], [11].

[6] [2004] VSCA 242.

[13] See for example authorities and discussion: Williams, Civil Procedure Victoria, [I 46.01]

[14] [1998] VSC 182; (1998) 14 VAR 460.

[15] [1993] FCA 121; (1993) 41 FCR 421, 430-431.