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[2019] WASAT 143
State Administrative Tribunal (WA)
2020-01-08
Original judgment source is linked above.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
[1] Committee's Submissions [5] [7].
[2] Laurent and the Commissioner of Police [2009] WASAT 254 at [19] - [21].
[3] Medical Board of Australia v Woollard [2017] WASCA 64 (Woollard) at [143] [145].
[5] Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 at 392 393, 395 396.
[6] Woollard at [150] [151].
[7] Re Rules Of the Supreme Court 1971 (WA); Ex Parte Gates [2018] WASC 213 at [31] [33].
Laurent and the Commissioner of Police [2009] WASAT 254
Medical Board of Australia v Woollard [2017] WASCA 64
Re Rules Of the Supreme Court 1971 (WA); Ex Parte Gates [2018] WASC 213
Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378
Nothing in s 47 of the SAT Act contains a temporal restriction on when an application under that section may be made or considered. Plainly, an application may be made at an interlocutory stage, but it may also be made in the course of the substantive hearing of a proceeding, for example if at the close of the applicant's case, the state of the evidence is such as to demonstrate that the proceeding is lacking in substance. Given the absence of formal pleadings, the power in s 47 should be exercised particularly cautiously if an application for its exercise is made prior to the substantive hearing of an applicant's case: see Turner and Maunsell Australia Pty Ltd [2006] WASAT 52 (Turner) at [45] [46] and the cases there cited.
When, as in the present case, an application is made at an interlocutory stage, it is appropriate to assume that all of the factual assertions made by an applicant will be made out, and to consider, from that perspective, whether the proceeding is frivolous, vexatious, misconceived, or lacking in substance: Ambrus and Churches of Christ Homes and Community Services Incorporated [2006] WASAT 141 (Ambrus) at [16] (Deputy President Judge Chaney, as he then was). Even then, however, caution should be applied in the exercise of the power in s 47. If there is a serious question of fact to be determined, or if factual issues are likely to be affected by evidence in the possession of a respondent, that factor may render it inappropriate to dismiss the proceeding pursuant to s 47 of the SAT Act. In discrimination cases, it is not uncommonly the case that the evidence led by a respondent and crossexamination of the respondent's witnesses may provide the causative link between the conduct complained of and the ground of discrimination alleged: see Soelberg and Commissioner of Police and Ors [2007] WASAT 214 at [49] (Deputy President Judge Eckert), and Margan v University of Technology, Sydney (EOD) [2003] NSWADTAP 65 at [11].
... the principle to be applied in an application such as this is at least analogous to the principle explained by Barwick CJ in General Steel Industries Inc v Commissioner of Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 which requires that, in order to strike out a proceeding, it should be demonstrated that it is so obviously untenable that it cannot possibly succeed or is manifestly groundless or that it discloses a case which the court is satisfied cannot succeed.
(1993) 177 CLR 378
(1964) 112 CLR 125
In relation to its exercise at the interlocutory stage, the power in s 47 of the SAT Act has been viewed as analogous to the power of courts to summarily dismiss a proceeding when the pleadings fail to disclose any reasonable cause of action. The principles applicable to the exercise of that power have been considered applicable to the exercise of the power in s 47. In Ambrus at [8], Deputy President Judge Chaney observed that: