Finch v The Heat Group Pty Ltd & Ors [2011] VSCA 100

2 Section 148(1)(a) relevantly provides:[2]

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

(a) to the Court of Appeal, if the Tribunal was constituted for the purpose of making the order by the President or a Vice President ...

if the Court of Appeal ... gives leave to appeal.

3 The test for a grant of leave to appeal under s 148(1)(a) of the VCAT Act was set out by the Court of Appeal in Secretary to the Department of Premier and Cabinet v Hulls.[3] There, Phillips JA (with whom Tadgell and Batt JJA agreed), said this:[4]

Under s 148 leave is always necessary ...

As the leave is sought under s 148, that section must be the starting point for any consideration of what has to shown by an applicant seeking leave. Because an appeal under s 148 lies only on a question of law it follows that if leave is to be granted the applicant must at least identify a question of law (as distinct from a question of fact) and a question of law which is important to the appeal's succeeding or failing. ... The question of law must be such that, if there is shown to be error in respect of the question, the appellant's claim to relief will thereby be advanced.

On the other hand, on an application for leave to appeal it cannot be expected that error below be established: that is for the appeal itself. Something less must be sufficient on the application for leave to appeal and ordinarily the applicant will be required to show that there is a real or significant argument to be put that error exists. ...

Moreover, though never a necessary factor in this Court, sometimes the public or general importance of the question of law which has been identified may be a consideration on the application for leave. ...

Once a question of law has been identified which bears directly upon the relief which will be sought on the appeal, and once it has been shown that there is sufficient doubt attending that question to justify the grant of leave to appeal, it may be supposed that leave will ordinarily go if the order below is a final order. That must always be subject to its being just to grant leave, a consideration which will in some cases be determinative.

4 The costs order her Honour made against Ms Finch were made under s 109 of the VCAT Act, VCAT having no inherent power to award legal costs to a party. Section 109, relevantly, provides that:

(1) Subject to this Division, each party is to bear their own costs in the proceeding.

(2) At any time the Tribunal [that is, VCAT] may order that a party pay all or a specified part of the costs of another party in a proceeding.

(3) The Tribunal may make an order under subsection (2) only if satisfied that it is fair to do so, having regard to -

(a) whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding by conduct such as -

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse;

(ii) failing to comply with this Act, the regulations, the rules or an enabling enactment; ...

(v) attempting to deceive another party or the Tribunal;

(vi) vexatiously conducting the proceeding;

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding;

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law.

5 The claim brought by Ms Finch under the Equal Opportunity Act was a claim that during her employment with The Heat Group, she was discriminated against because of her sex, pregnancy and her impairment, victimised by the company because of her complaints about her treatment and sexually harassed by the third respondent and another employee.

6 The hearing before Vice President Judge Harbison lasted 20 days and resulted, as I have mentioned, in a dismissal of the proceeding. In the course of her Honour's reasons for that dismissal, her Honour made adverse findings as to Ms Finch's credibility. An application for leave to appeal from her Honour's decision dismissing the victimisation claim brought by Ms Finch was rejected by the Chief Justice and Mandie JA on 5 October 2010.[5] In their reasons, their Honours said: [6]

The reasons of the Tribunal were careful and comprehensive ... [and] painstaking in identifying and particularising each of the allegations made by Ms Finch in a context in which there was a plethora of such allegations and a lack of clarity in delineating each of them.

7 They noted that Judge Harbison had substantially rejected Ms Finch's evidence, saying:[7] '[i]n my view the cross-examination revealed [Ms Finch] as a witness of little credibility'.

She forcefully claimed that she had been subjected to unlawful discrimination, yet she was prepared to change her evidence as to crucial events when confronted by emails which did not support the accuracy of her expressed views.

There are many occasions in which she was caught out in what appeared to me to be a significant stretching of the truth [and] ... on which it seemed to me that she was evasive in answering questions and attempting to fashion what she thought was the best answer to fit the way in which she had pleaded her case.

9 The Court of Appeal noted that Judge Harbison had gone on to list numerous specific examples said to support these conclusions.

10 In Judge Harbison's reasons for the costs order she made against Ms Finch, she said:[9]

[R]ecognising that this was a case which depended on my assessment of the credibility of witnesses, I will award costs only to the extent to which the conduct of the complainant and her insistence on exploring irrelevant matters extended the length of the trial and complicated the pre-trial process.

11 Her Honour made this comment having observed that the basis for the generally cautious approach to awarding costs is to preserve access to VCAT for claimants and to ensure the purposes of VCAT and the Anti-Discrimination List are met. She said:[10]

It has been suggested that the Tribunal should be very slow to award costs in the Antidiscrimination List, having regard to the objectives set out in section 3 of the Equal Opportunity Act which include to provide redress for people who have been sexually harassed or discriminated against. Bearing this objective in mind, it is important that potential claimants are not deterred from seeking redress by the prospect of a significant costs order against them.

The basis for the generally cautious approach to awarding costs in this list is to preserve access to the Tribunal for claimants. The Tribunal is also concerned not to discourage litigants from presenting their claims in person, without legal representation. If costs were generally awarded for successful claims, or against unsuccessful claimants, the issue of costs will become a significant barrier to issuing in this forum. If costs orders were made as a matter of course, to follow the event, as is the case in the courts, a significant advantage of access to this Tribunal would be neutralised.

In my estimation, this trial should have run for five days, not 20. Much time was lost because the complainant [Ms Finch] did not appear to have read or know what was in her witness statements or in her particulars of claim. I had to allow her time to read these documents during her cross-examination. She also appeared not to have read or to have not absorbed the factual allegations made in the respondents' witness statements. She insisted on exploring at trial matters of no relevance or marginal relevance.

Her case should have been able to have been prepared at trial by the filing of two sets of particulars of complaint; one consequent on the filing of the complaint with the Equal Opportunity Commission, and the second consequent upon the addition of sexual harassment allegations. The appalling wording of the final particulars of complaint and its lack of correlation with the matters contained in Finch's own witness statements, and the inclusion of so much irrelevant material in her second witness statement led directly to the blowing out of the time it took for this trial to be heard, and the respondent's need to adduce unnecessary evidence in rebuttal.

I accept also that significant delays resulted from the complainant failing to comply with Tribunal orders. In some instances costs orders have already been made against the complainant. The respondent is not entitled to charge further costs in respect of those occasions.

13 Ms Finch has supported her application for leave to appeal the costs order made by Judge Harbison by identifying nine grounds of appeal in a draft notice of appeal. The draft notice of appeal does not formulate or identify a separate question of law, as required under s 148 of the VCAT Act and as emphasised as part of the test by this Court in Secretary of the Department of Premier and Cabinet v Hulls.[12] However, as Ms Finch is unrepresented, I shall consider whether any of the grounds of appeal implicitly raise a question of law about which there was sufficient doubt to justify a grant of leave. Ground 1 complains that Judge Harbison erred in law in failing to give due weight to relevant factors and material put forward in respect of the various adjournments in the proceeding. This is a question of fact specific to the proceeding and does not raise a broader question of law.

14 The same is true of Ground 2, which alleges that Judge Harbison wrongly attributed delays in the proceeding to the applicant. Furthermore, as the respondents have argued in their written submissions, it must be remembered that Judge Harbison had the advantage of having heard the substantive hearing and was best placed to evaluate and make factual findings about the cause and length of delays during the substantive hearing.

15 So too Ground 3 fails to raise a question of law. It alleges that Judge Harbison failed to give weight to the applicant's counsel's incompetence in the initial hearing. This is a fact-specific inquiry which does not travel beyond what occurred in the circumstances of the case.

16 Ground 4 alleges that Judge Harbison erred in that the errors of law on the face of the record, being breaches of natural justice and breaches of the fairness rule in regards to the initial decision, compounded the decision to award costs.

17 Associated with this is ground 5, which alleges that the errors of law in the initial decision were used by the respondents to discredit the applicant in the costs hearing. Both of these grounds seek to revisit the merits of the decision of Judge Harbison to dismiss the substantive proceeding. Ms Finch has already sought leave to appeal against that decision and, as I have mentioned, that application was refused by the Chief Justice and Mandie JA. Grounds 4 and 5 thus cannot provide grounds for a question of law about which there is sufficient doubt to warrant a grant of leave.

18 Furthermore, the findings on credit made in the substantive proceeding were directly relevant to the considerations identified in sub-ss (3)(b) and (3)(a)(v) of s 109 of the VCAT Act to which I have already referred, being, respectively, the responsibility for prolonging the proceeding and that of attempting to deceive another party or the Tribunal.

19 Ground 6 alleges that Judge Harbison, in effect, failed to take into account the purposes of VCAT and the Anti-Discrimination List. I have already quoted sufficiently from Judge Harbison's decision on costs to show that this allegation has no merit and that her Honour was well aware that the purposes of the Anti-Discrimination List, and the objectives of the Equal Opportunity Act, would be impaired if the approach to costs orders were to reflect that taken in a court, whereby costs follow the event. It is clear her Honour did not award costs on a basis that reflected the approach taken in courts or that detracted from the purposes of the Anti-Discrimination List. In any event, ground 6 does not found a question of law.

20 Ground 7 is a bald statement that there ought to have been no order as to costs. This does not amount to a question of law. Moreover, it is clear from her Honour's reasons that she faithfully took into account the considerations identified in s 109 of the VCAT Act (extracted above) as relevant to her discretion in awarding costs against Ms Finch. It should also be remembered that Ms Finch was legally represented at the costs hearing and indeed that Judge Harbison observed that the submissions of Ms Finch's counsel were powerful, although she ultimately rejected them.

21 Ground 8 is the assertion that the Tribunal decision is a substantial injustice and Ground 9 similarly baldly states that the Tribunal decision is a substantial concern of public importance. Neither of these grounds raise a question of law within the meaning of s 148 of the VCAT Act to justify a grant of leave. This is not a matter of mere technicality, as the appeal which follows from a grant of leave under s 148 of the VCAT Act involves a hearing and determination in relation to the question of law identified. It is important to be mindful that s 148 does not confer a right of appeal on the merits of the case, even if leave is granted. A failure to meet the threshold requirement of identifying a question of law thus reveals that the case is not suitable for the type of restricted appeal for which s 148 provides.

22 At the hearing of the application today, Ms Finch sought to raise a further ground of appeal, namely, that there was an error of law made by Judge Harbison in

refusing Ms Finch's application for a two-week adjournment and limiting the adjournment granted, in effect, to one working day only. The issue was one of the exercise of discretion by the Judge who had been involved in the whole history of the case. I consider that it was open to her to make the decision she did. In any event, I do not consider that there was any substantial injustice from the decision made. Furthermore, there is no question of law identified within the meaning of s 148 of the VCAT Act arising from this ground.

23 For the foregoing reasons, the application for leave to appeal is dismissed.

24 I agree, for the reasons given by Tate JA, that the application for leave to appeal ought to be dismissed.

(1) The application for leave to appeal from the orders made by her Honour Judge Harbison on 31 January 2011 be dismissed;

(2) The applicant pay the respondents' costs of and incidental to the application today; and

(3) There be a Stay of the orders made by her Honour Judge Harbison on 31 January 2011 for 28 days from today or until further order.

[1] Finch v The Heat Group Pty Ltd (Unreported, Victorian Civil and Administrative Tribunal, Harbison VP, 31 January 2011).

[3] [1999] VSCA 117; [1999] 3 VR 331.

[5] At the hearing of the application for leave to appeal the costs order on 8 April 2011, Ms Finch indicated that she had applied for an extension of time in which to apply for special leave to appeal to the High Court from the judgment of the Chief Justice and Mandie JA. She also indicated that she intended to apply for special leave to appeal from any order this Court might make refusing leave to appeal on the costs orders.

[6] Finch v The Heat Group Pty Ltd [2010] VSCA 256, [3].

[7] Ibid [2] (quoting from the decision of Judge Harbison, Finch v The Heat Group Pty Ltd (Anti-Discrimination) [2010] VCAT 802, [78]-[79]).

[9] Finch v The Heat Group Pty Ltd (Unreported, Victorian Civil and Administrative Tribunal, Harbison VP, 31 January 2011), [37].

[12] [1999] VSCA 117; [1999] 3 VR 331. In that case the questions of law identified were questions concerning the construction of s 50(4) of the Freedom of Information Act 1982 (the scope of the 'public interest override') and its relationship to s 151 of the Casino Control Act 1991, a 'secrecy provision' which prohibited disclosure of certain information in certain circumstances. The question of the construction of those statutory provisions, and their relationship to each other, were held to be 'questions of law' within the meaning of s 148 of the VCAT Act: [1999] VSCA 117; [1999] 3 VR 331, 338 [18]. The judgment of Warren CJ and Mandie JA, in the application for leave to appeal from the decision of Judge Harbison in the substantive proceeding, records that, in that application for leave to appeal, Ms Finch identified the following question as a question of law within the meaning of s 148 of the VCAT Act, namely, ' Do ss 97(1)(f) and 97(2) require that an allegation of contravention of Part 3 of the Act be an allegation that has some merit, or does it instead suffice for the purposes of the provision that there be an allegation simpliciter (not being an allegation that was false or not made in good faith)?': [2010] VSCA 256, [11]. The Court held that the question of law articulated by Ms Finch was not raised by the Tribunal's decision because the Tribunal did not take a contrary view: [2010] VSCA 256, [12], [13], [15].