Rabel v Eastern Energy Ltd [1999] VSCA 103

2. Mr. Rabel has been in dispute with the respondent Eastern Energy Ltd. (and its predecessor, the State Electricity Commission of Victoria) for many years. It is unnecessary, for present purposes, to trace in detail the history of that dispute. It is sufficient to say that as long ago as 1991, Mr. Rabel lodged a complaint against his former employer (then the State Electricity Commission) pursuant to what was then the Equal Opportunity Act 1984, alleging that he had been unfairly discriminated against by being excluded from employment on the grounds of impairment. The Equal Opportunity Commission declined to entertain his complaint and, at his request, it was referred to what was then the Equal Opportunity Board. The history of what thereafter occurred is set out in the judgment of Phillips, J.A. in State Electricity Commission of Victoria v. Rabel [1998] 1 V.R. 102 at pp. 111 ff.

5. Following much litigation and changes to relevant legislation, Mr. Rabel's complaint ultimately came to be heard by the Anti-Discrimination Tribunal established under the Equal Opportunity Act 1995. This Tribunal commenced to hear the complaint in April 1998. The proceedings were of inordinate length and during the course of them the relevant legislation was changed again. The Tribunals and Licensing Authorities (Miscellaneous Amendments) Act 1998 abolished the former Tribunal and replaced it with the Victorian Civil and Administrative Tribunal ("VCAT"). That Act provided, by clause 9(2) of the Seventh Schedule, that any proceedings which the former tribunal had commenced to hear should be taken to have been commenced before VCAT and that anything done in relation to the proceedings by the former tribunal before the commencement of the new Act (on 1 July 1998) should be deemed to have been done by VCAT.

8. The proceedings continued then, in accordance with the scheme of the legislation, before VCAT in its Anti-Discrimination List. At all material times the tribunal was constituted by Mr. Rohan Walker (senior member) and Mr. Glen Carelton and Ms. Jan King (members). Evidence in relation to the complaint was taken over a period of some twenty days between April and September 1998. In accordance with considered reasons, running into some fifty-three pages, the tribunal, on 9 December 1998, dismissed Mr. Rabel's complaint.

11. Mr. Rabel (whom we shall call "the appellant") wished to appeal. His rights to do so are defined by s.148 of the Victorian Civil and Administrative Appeals Act 1998 ("the VCAT Act"). In so far as that section is relevant for present purposes it provides:

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

1. to the Court of Appeal, if the Tribunal was constituted for the purpose of making the order by the President or a Vice-President, whether with or without others; or

(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. (2) An application for leave to appeal must be made - (a) no later than 28 days after the day of the order of the Tribunal; and (b) in accordance with the rules of the Supreme Court. (3) If leave is granted, the appeal must be instituted - (a) no later than 14 days after the day on which leave is granted; and (b) in accordance with the rules of the Supreme Court. .... (5) The Court of Appeal or the Trial Division, as the case requires, may at any time extend or abridge any time limit fixed by or under the section. .... (7) The Court of Appeal or the Trial Division, as the case requires, may make any of the following orders on appeal - (a) an order affirming, varying or setting aside the order of the Tribunal; (b) an order that the Tribunal could have made in the proceeding; (c) an order remitting the proceeding to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the court; (d) any other order the court thinks appropriate."

18. The tribunal before which the appellant's claim proceeded and was heard and determined was not a tribunal within the meaning of s.148(1)(a) but was a tribunal within s.148(1)(b). His right of appeal was therefore to the Trial Division of the Supreme Court subject to the leave of that Division. In accordance with the Rules of the Supreme Court he made an application to Master Wheeler: Chapter II Rules 4.06 to 4.09. His application for leave was refused. He then appealed from the Master's refusal to Beach, J in the Practice Court pursuant to Rule 77.05 of Chapter I of the Rules. This was, by the Rules, a re-hearing "de novo" of the application for leave. Beach, J. also refused the application, dismissing the appeal.

21. Nothing daunted, the appellant filed a summons in the Court of Appeal seeking, in terms, "leave to appeal from the decision of [the tribunal]" made on 9 December 1998. At that stage the appellant appeared in person. It is quite apparent that under s.148(1) of the VCAT Act the Court of Appeal has no original jurisdiction to grant leave to appeal to the Trial Division and, as the appellant also sought in the body of the summons the setting aside of the order of Beach, J., it seemed that what he really wanted was to appeal from the order refusing him leave to appeal to the Trial Division, with a view to his having that decision reversed. The appellant's summons came on for hearing before the President and Phillips, J.A. on 21 May 1999. On that date the Court raised the question whether, having regard to the provisions of the relevant legislation, there was any right in a litigant, whose application for leave to appeal pursuant to s.148(1)(b) of the VCAT Act had been refused by the Trial Division, to appeal to the Court of Appeal, whether by leave or otherwise. As there was also doubt whether, if it could be appealed, the refusal of leave was an interlocutory order, the Court gave leave to the appellant to amend his summons to seek leave to appeal from the order of Beach, J. or, in the alternative, an extension of time for filing and serving a notice of appeal from his Honour's order; for no notice of appeal had yet been served: compare Rule 64.03 of Chapter I. The summons was then referred to a Court of three judges for hearing. The summons, as amended, is now before us.

24. The primary matter debated before us was the question to which we have just referred; namely whether there is any right of appeal to this Court from the Trial Division's refusal of leave. The matter is not without difficulty and we are grateful for the assistance which has been provided by counsel on both sides.

27. If there is a right of appeal to this Court from the Trial Division's refusal of leave, or for that matter its grant of leave, it must surely exist by virtue of s.17(2) of the Supreme Court Act 1986 which provides:

"Unless otherwise expressly provided by this or any other Act, an appeal lies to the Court of Appeal from any determination of the trial Division constituted by a judge."

Section 17A of the Act imposes restrictions on certain rights of appeal, including appeals from judgments or orders made in interlocutory applications, but the first question is whether there is any right of appeal at all.

32. The words in s.17(2) "unless otherwise expressly provided by ... any other Act" are, in our view, critical in determining whether the appellant has a right of access to this Court. This is not a case where a litigant is given by statute or rule, a right to make consecutive applications for leave to appeal from a primary decision. For example, s.17A(4)(b) of the Supreme Court Act 1986 provides that an appeal will not lie to the Court of Appeal "without leave of the Judge constituting the Trial Division or of the Court of Appeal from a judgment or order in an interlocutory application, being a judgment or order given by the Trial Division constituted by a Judge ...". These words, and the like words in the comparable antecedent legislation (see for example Supreme Court Act 1958 s.40(1)(b)) have generally been accepted in this State as enabling a litigant to make consecutive applications for leave to appeal to a judge of the Trial Division and, if unsuccessful, to the Court of Appeal: see Darrel Lea (Vic.) P/L v. Union Assurance Society [1969] VicRp 50; [1969] V.R. 401 at 406, Niemann v. Electronic Industries Ltd [1978] VicRp 44; [1978] V.R. 431 at 435 per Murphy, J., compare Godman v. Moses (1900) 69 L.J.Q.B. 823. We do not overlook that, in more recent times, this Court has expressed the view that, particularly in interlocutory applications involving matters of practice and procedure, it might be better for the judge at first instance to refuse leave and allow the appellate court to determine whether leave should be granted: see Coles Myer Ltd v. Bowman [1995] VICSC 219; [1996] 1 V.R. 457 at 460. The Federal Court appears to have adopted a different view of its own statute: Reid v. Nairn (1985) 60 A.L.R. 419 at 421. There are, however, material differences between the language of s.24(1A) and (2) of the Federal Court of Australia Act 1976 (Cth) and s.17A(4)(b) of the Supreme Court Act 1986 (Vic.).

35. In this case, where s.148(1)(b) provides that a party may apply to the Trial Division, by leave, from an order made by a "non-presidential tribunal", if we may so call it, the application for leave must be made in accordance with the relevant Rules of Court (s.148(2)(b)). Those rules provide, as the appellant has been able to demonstrate, that the litigant may make what are in substance successive applications for leave to the Master and then to the Judge under Rule 77.05: for that is the nature of an appeal by way of re-hearing. Indeed if it is the respondent who appeals to the Judge after the Master has granted leave to appeal from the tribunal, the would-be appellant would be bound to renew his application before the Judge. But all that is within the Trial Division of the Court; it is not prejudiced by the terms in which the right to appeal from the tribunal is created by 148(1).

38. Here the critical question is whether s.148(1), by its terms, excludes a right of appeal to this division of the Supreme Court from an order made by the Trial Division refusing (or granting) leave to appeal from an order made by the "non-presidential tribunal"; in other words does the section "expressly provide" within the meaning of s.17(2) of the Supreme Court Act 1986 that there is to be no appeal to the Court of Appeal from such a "determination"?

41. We leave aside the question whether an order made by the Trial Division granting or refusing leave to appeal is a "determination" within the meaning of s.17(2) (as to which see Bland v. Chief Supplementary Benefit Officer [1983] 1 W.L.R. 262 at 266). Whether it is or not, we are firmly of the view that the structure of s.148 of the VCAT Act does exclude any right of appeal to this Court from an order of the Trial Division granting or refusing leave to appeal to it. Counsel for the appellant argues that, although the exceptive words in s.17(2) of the Supreme Court Act will be satisfied if a later specific enactment, such as s.148 of the VCAT Act, excludes a right of appeal by necessary implication, there is nothing in s.148 which could lead to the view that it intends to exclude the incidental appellate rights which the Supreme Court Act invests in parties who appeal to the Trial Division of the Supreme Court. He submits that the scope of s.148 is to provide for appeals from VCAT (inter alia to the Trial Division) and that the section does not, either expressly or by necessary implication, exclude such incidental appellate rights which the Supreme Court Act gives to litigants who are aggrieved by orders or determinations made by the Trial Division. In other words, counsel's submission seeks to apply the principle stated by Viscount Haldane, L.C. in National Telephone Co. Ltd. (In liq.) v. Postmaster-General [1913] A.C. 546 at 552 that:

"When a question is stated to be referred to an established Court without more, it, in my opinion imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from its decisions likewise attaches."

See also Stratton v. Parn [1978] HCA 5; (1978) 138 C.L.R. 182 at 192 per Barwick, C.J.

46. It is apparent from authority that the words "unless otherwise expressly provided by ... any other Act", where used in s.17(2) of the Supreme Court Act, do not necessarily mean "expressly excluded by words". Rather they bear a meaning whereby the language of the "other Act" will be taken to have attracted the exclusion referred to if upon its plain meaning that language implies that the right conferred by the general Act has no operation: Director of Public Prosecutions v.Kanfouche [1992] VicRp 9; [1992] V.R. 141 at 149. If it is necessarily to be implied from the terms of s.148 that it was the purpose or policy of this legislation to exclude an appeal to the Court of Appeal from a grant or refusal to grant leave by the Trial Division, then the exception contained in the opening words of s.17(2) of the Supreme Court Act will be attracted.

49. In our view the provisions of s.148(1) of the VCAT Act do contain that necessary implication. It seems to us that it is the clear purpose of the sub-section to confer a bifurcated right of appeal on litigants dissatisfied with a decision of the tribunal: in the first place a right of appeal to the Court of Appeal from decisions made by a "presidential tribunal" and in the case of all other decisions a right of appeal to the Trial Division of the Supreme Court. However, it is also plain from the words of the section that the right of appeal so granted is to be limited or fettered by the requirement of obtaining leave from the particular division of the Supreme Court to which the appeal lies. The parties were agreed that, in conferring such a bifurcated right of appeal, limited by the requirement of leave from the respective division to which the appeal lay, s.148 was unique in the statute law of this State.

52. In terms, s.148(1) says that appeals from "non-presidential tribunals" are to be brought to the Trial Division with the leave of that division. That means, as we see it, that leave is to be granted or withheld by the Trial Division and not by the Court of Appeal which is what will occur in practice, although perhaps not in form, if the grant or refusal of leave by the Trial Division is reviewable by the Court of Appeal. It will be rare that the grant or refusal of leave will be attended by any or any substantial reasons and an appeal would almost inevitably take the form of a renewal of the application for leave, and a reconsideration of its merits. As Lord Field put it in Lane v. Esdaile [1891] A.C. 210 at 216:

"It seems to me that if your Lordships were to say now "we will give leave", and the Court of Appeal must enforce that, it would be imposing upon them the duty of giving a leave, as their leave, which they in their own judgment think ought not to have been given."

56. One can see good reason why the statute confines the power to grant or withhold leave to the members of the division to which the appeal is required to be brought and why a review of the exercise of that power is excluded. All manner of decisions given by VCAT as successor to a vast array of tribunals are appealable under the VCAT Act, provided that the appeal is on a question of law. Many of the decisions appealed from will be interlocutory in nature. Moreover, whether or not the refusal of leave to appeal from the tribunal is interlocutory in kind, a determination to grant leave (which is, of course, capable of being rescinded) is surely interlocutory and any appeal to the Court of Appeal from such a determination (if such an appeal were justified under s.17(2) of the Supreme Court Act) would itself need leave by virtue of s.17A(4)(b) of that Act. That poses the unedifying prospect of the appellate court's being asked to grant leave to review a discretionary determination to grant or withhold leave. If a determination to grant leave is appealable, it raises the further unacceptable prospect that that appeal might be heard here at the same time as the appeal from the tribunal was being heard in the Trial Division, for the former does not per se operate as a stay of the latter.

59. Appellant's counsel, in the course of his able submissions, contended that such potential problems are no more than factors from which an inference might be drawn that an appeal from a grant or refusal of leave by the Trial Division was not intended, and are not capable of supporting the conclusion that such an appeal is excluded by necessary implication. We cannot agree. They are the reasons why the legislation entrusts the power to grant or withhold leave, in the relevant case, to the Trial Division. If it were otherwise the underlying purpose of the Act, which is clearly to achieve expeditious and cost-effective resolution of those disputes which are now committed to VCAT for determination and also to exclude frivolous and unnecessary appeals, would be defeated.

62. Ever since Lane v. Esdaile, courts have tended to eschew the notion that an appeal lies from the grant or refusal of leave to appeal by a legal authority which has been expressly appointed to make that decision. In that case the House of Lords was asked to entertain an appeal against the Court of Appeal's refusal to grant to a litigant leave to appeal when the time for appeal had expired. The relevant statutory rule (Order LVIII r.15) appointed the Court of Appeal as the authority to grant or withhold leave. The Lord Chancellor, Lord Halsbury said (at pp. 211 - 12):

" ... when I look not only at the language used [in Order LVIII r.15], but at the substance and meaning of the provision, it seems to me that to give an appeal in this case would defeat the whole object and purview of the order or rule itself, because it is obvious that what was there intended by the Legislature was that there should be in some form or other a power to stop an appeal - that there should not be an appeal unless some particular body pointed out by the statute ... should permit that an appeal should be given. Now just let us consider what that means, that an appeal shall not be given unless some particular body consents to its being given. Surely if that is intended as a check to unnecessary or frivolous appeals it becomes absolutely illusory if you can appeal from that decision or leave, or whatever it is to be called itself. How could any Court of Review determine whether leave ought to be given or not without hearing and determining upon the hearing whether it was a fit case for an appeal? And if the intermediate Court could enter and must enter into that question, then the Court which is the ultimate Court of Appeal must do so also. The result of that would be that in construing this order, which as I have said is obviously intended to prevent frivolous and unnecessary appeals, you might in truth have two appeals in every case in which, following the ordinary course of things, there would be only one; because if there is a power to appeal when the order has been refused, it would seem to follow as a necessary consequence that you must have a right to appeal when leave has been granted, the result of which is that the person against whom the leave has been granted might appeal from that, and inasmuch as this is no stay of proceeding the Court of Appeal might be entertaining an appeal upon the very same question when this House was entertaining the question whether the Court of Appeal ought ever to have granted the appeal. My Lords, it seems to me that that would reduce the provision to such an absurdity that even if the language were more clear than is contended on the other side one really ought to give it a reasonable construction. My Lords, I confess that when I look both at the subject matter with which the order deals and at the language of the order itself it seems to me obvious that it was intended that the decision should be final (whether that is said in terms or not seems to me to be immaterial), unless the Court of Appeal, the body there prescribed, in the exercise of that jurisdiction should give leave to appeal."

See also In re Housing of the Working Classes Act 1890, ex parte Stevenson [1892] 1. Q.B. 609 at 610-11, per Lord Esher, M.R..

67. In like fashion when due regard is had to the language of s.148(1) of the VCAT Act and the subject matter with which it is dealing it seems to us clear that the decision of the Trial Division, as the body appointed expressly to grant or refuse leave, is intended to be conclusive and not subject to appeal. We are conscious of the fact that, as the appellant here contends, the question whether the appointed body's decision on the matter of leave is to be regarded as conclusive and not subject to appeal will much depend upon the language of the section conferring the power on the appointed body and its context and general subject matter. However, it is quite clear to us that s.148(1), in expressly requiring leave to appeal from the Trial Division when the right to appeal from the tribunal is to that division, was not intending that the decision of the Trial Division to grant or refuse leave was itself to be subject to review, notwithstanding the existence of a general Act otherwise conferring rights of appeal to this Court from determinations of the Trial Division. The very fact that the two legal authorities appointed by the section to grant leave are in each case the particular division of the Court to which the appeal is to be brought strongly supports the construction we favour. The principle explained in Lane v. Esdaile and Ex parte Stevenson has continued to be applied in this State where the words of the special Act have warranted its application: see, for example, Costain Australia Ltd. v. F.W. Nielsen Pty. Ltd. [1988] VicRp 32; [1988] V.R. 235 at 239.

70. Appellant's counsel contended that where, as here, the nature of the appeal for which leave was being sought from the appropriate court was on a question of law, the principle in Lane v. Esdaile did not apply because the refusal to grant leave was in the nature of an order refusing leave for judicial review of the decision of an inferior tribunal, and that such an order is, or ought to be, appealable. He referred to the decision of the Judicial Committee in Kemper Reinsurance Co. v. Minister of Finance [1998] 3 W.L.R. 630. We do not, however, accept counsel's characterisation of what was before Beach, J. Moreover, a not dissimilar submission was made to the Court of Appeal in Bland v. Chief Supplementary Benefit Officer and rejected. In refusing to entertain the appeal, following Lane v. Esdaile, Kerr, L.J. said (at 268):

"[The appellant's] submission was accordingly that an appeal to the Commissioner would only lie on a point of law. With that I obviously agree. But I do not agree that the decision of the Commissioner whether to grant or refuse leave under that rule places it in a different category from the decisions whether to grant or refuse leave which were under consideration in the authorities to which Sir John Donaldson, M.R. has referred [those authorities being Lane v. Esdaile and Ex parte Stevenson]. It is clearly a sine qua non requirement of this rule that an appeal will only lie on a point of law. However, superimposed on that, it is still a matter for the Commissioner whether, given the fact that appeals can only be brought on a point of law, the Commissioner is willing to grant, or refuse, leave. I therefore cannot see that the fact that appeals to the Commissioner can only lie on points of law raises any ground of distinction."

74. The decision of the Privy Council in Kemper is distinguishable. In Kemper, the Board was concerned with a different issue, namely whether a litigant had a right to appeal to the Bermuda Court of Appeal against a refusal of leave to that litigant to apply for an order for certiorari to quash certain consents given by the Minister of Finance. The appellant had argued before the Privy Council that it should apply to these circumstances the same principles as have been applied by the courts in rejecting, as incompetent, appeals brought against refusals to grant leave to appeal. Lord Hoffmann, speaking for the Privy Council, rejected the analogy between judicial review and appeal, and in the course of doing so, re-affirmed the principle enunciated in the authorities to which we have already referred. He said, at 637:

"Their Lordships consider that the principle in Lane v. Esdaile ... as explained in Ex parte Stevenson ... is that a provision requiring the leave of a court to appeal will, without express words and by necessary intendment, exclude an appeal against the grant or refusal of leave from the general language of a statutory right of appeal against decisions of that Court. This construction is based upon "the nature of the thing" and the absurdity of allowing an appeal against a decision under a provision designed to limit the rights of appeal. This absurdity is greatest in a case such as Lane. v. Esdaile, in which the appeal is brought to or from the very tribunal to which it is desired to appeal on the merits."

His Lordship, however, said that the principle was confined to decisions refusing (or granting) leave to appeal and noted that (p. 637):

"The judges would not necessarily have been willing to state the principle any more widely and to include cases in which leave is required to do something other than appeal."

80. In reaching the conclusion which we have, we are simply confining ourselves to what we see to be the purpose and policy of s.148(1) of the VCAT Act. The principle which has been explained in authorities such as Lane v. Esdaile and ex parte Stevenson, and other authorities which have derived from them, has been strictly applied to cases where the statute or rule concerned has been interpreted as conferring upon an appointed legal authority the unfettered power to grant leave to appeal, and in such a way as to make it clear that the decision of that body on the question of leave is to be conclusive and not itself subject to appeal. Thus the principle itself dictates that particular attention be given to the wording of the statute or rule which confers the power on the appointed body. Where, for example, a power to grant leave is conferred upon two or more bodies , the proper interpretation may well be that consecutive or renewed applications can be made to the authorities so nominated, as we have already mentioned is accepted lore in this State under s.17A(4)(b) of the Supreme Court Act. Similarly, where the power conferred is to give leave to do something other than appeal, such as to bring proceedings for judicial review, the principle will probably not apply: Kemper. So too where the power conferred is to extend the time for appeal, an order refusing to extend time may well , if nothing more is said, attract general rights of appeal: Rickards v. Rickards [1989] EWCA Civ 8; [1990] Fam. 194 at 210, per Lord Donaldson, M.R.

83. Authorities in this country have differed upon the question whether an appeal can be brought, pursuant to general rights of appeal, against the refusal by a trial judge to grant leave to appeal from an arbitrator's award pursuant to the Commercial Arbitration Acts (compare Aintree Holdings Pty. Ltd. v. Corderoy & Anor.; Full Court (W.A.), unreported, 25 October 1996; and Minister for Industrial Affairs v. Civil Tech Pty. Ltd. [1997] SASC 6298; (1997) 69 S.A.S.R. 348). These latter decisions have depended entirely upon the meaning of, and the purpose and policy underlying, the provisions found in s.38 of the Commercial Arbitration Act 1984 and the changes which have been made to that legislation. The conclusions we have reached on this application are not intended to intrude upon the appropriate view to be taken of s.38, which is a matter currently before this Court (City of Boroondara v. Newmann Sands (Vic.) Pty. Ltd.; No. 7945 of 1998). Nor do we intend in what we have said to cast any doubt on the litigant's right to appeal to the Court of Appeal from a determination by the Trial Division made on appeal from VCAT after leave has been obtained. Neither side made any positive submission in that regard and such a right of appeal has long been exercised under the legislative precursor to s.148 of the VCAT Act, notwithstanding a similar bifurcation of appeals: see s.52 of the Administrative Appeals Tribunal Act 1984 and, for example, Department of Agriculture etc. v. Binnie [1989] VicRp 73; [1989] V.R. 836, Comptroller of Stamps v. Yellowco Five Pty Ltd [1993] VicRp 90; [1993] 2 V.R. 529 and the recently reported Transport Accident Commissioner v. Bausch [1998] 4 V.R. 249 . Our decision on this occasion is confined solely to the proper construction of s.148(1) of the VCAT Act with respect to the granting or refusing of leave to appeal by the Trial Division.

86. For these reasons we consider that s.148(1) of the VCAT Act excludes the appeal which the appellant wishes to bring from the decision of Beach, J. to the Court of Appeal. Accordingly the applications here made - namely for leave to appeal against the refusal by Beach, J. to grant leave to appeal or, alternatively, to extend the time for filing and serving a notice of appeal against his Honour's order - should be dismissed. In the circumstances it is unnecessary to decide the other matters which were debated before this Court, being the questions whether his Honour's order was final or interlocutory and whether it would be appropriate, in the circumstances, to extend the time for serving a notice of appeal or to grant leave to appeal.