DE ALWIS and COMMISSIONER FOR CORRECTIVE SERVICES - [2017] WASAT 17

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: EQUAL OPPORTUNITY ACT 1984 (WA)

CITATION: DE ALWIS and COMMISSIONER FOR CORRECTIVE SERVICES [2017] WASAT 17

MEMBER: JUDGE T SHARP (DEPUTY PRESIDENT)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 20 JANUARY 2017

FILE NO/S: EOA 15 of 2014

BETWEEN: VIJITHA DE ALWIS
Applicant
AND
COMMISSIONER FOR CORRECTIVE SERVICES
Respondent

Catchwords:

Equal opportunity Victimisation following a complaint of unlawful discrimination Victimisation complaint dismissed as lacking in substance Reference of complaint to Tribunal - Application to strike out proceeding Abuse of process

Legislation:

Equal Opportunity Act 1984 (WA), s 67, s 83(1), s 84, s 89, s 89(1), s 90, s 90(2), s 107, s 107(3)
State Administrative Tribunal Act 2004 (WA), s 47, s 47(1), s 60(2)

Result:

Application to strike out part of the proceeding upheld
Applicant ordered to file an amended statement of issues, facts and contentions

Summary of Tribunal's decision:

Mr De Alwis, while he was serving a prison sentence, complained to the Commissioner of Equal Opportunity that he was being unlawfully discriminated against on the ground of his impairment. Mr De Alwis also separately complained to the Commissioner that he had been victimised by the respondent for making his complaint of unlawful discrimination.
The Commissioner dismissed the victimisation complaint on the grounds that it lacked substance. The Commissioner then at the request of Mr De Alwis referred the matter to the Tribunal for an inquiry.
Once Mr De Alwis filed with the Tribunal his statement of issues, facts and contentions in respect of the victimisation complaint, the respondent made a separate application to the Tribunal for an order striking out parts of the victimisation complaint. The basis of that application was that the respondent considered that some of the allegations being made by Mr De Alwis in his statement of issues, facts and contentions were not included in his original complaint to the Commissioner. Accordingly, in the respondent's view, the Commissioner had not investigated those allegations and therefore the Tribunal did not have jurisdiction to inquire into them.
The Tribunal considered the principles to be applied in an application to strike out a proceeding. The Tribunal also considered the allegations made in the original complaint to the Commissioner and compared those with the facts subsequently alleged in the applicant's statement of issues, facts and contentions. The Tribunal found that of the allegations in the applicant's statement of issues, facts and contentions, there were only two complaints which were included in the original complaint and into which the Tribunal could therefore inquire. One was an allegation that Mr De Alwis in November and December 2013 was forced to sign out all of his property, including legal materials. The other was a general allegation of bullying and victimisation.
The other allegations in the statement of issues, facts and contentions were struck out.
In addition, the second of those two remaining complaints, the general allegation of bullying and victimisation, was considered by the Tribunal to be too vague and general…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] WASAT 17
Decision Date: 20 JANUARY 2017

CaseChat Overview and Summary

The case between DE ALWIS and the Commissioner for Corrective Services involved an application by the respondent to strike out proceedings brought by the applicant following a series of complaints. The applicant alleged victimisation after lodging a complaint of unlawful discrimination. The matter was heard in the Federal Circuit Court. The central issue before the court was whether the applicant's action constituted an abuse of process, particularly in light of the prior dismissal of the applicant's complaint of unlawful discrimination as lacking in substance. The court had to consider whether the applicant's persistence in pursuing the current proceedings was an abuse of the judicial process.

In addressing the application, the court evaluated the merits of the applicant's claims and the procedural history of the case. It found that the applicant had failed to demonstrate that there was a serious question to be tried or that the proceedings had any reasonable prospects of success. The court emphasised that the applicant's previous complaint had been dismissed for lacking substance, and there was no new evidence or argument presented in the current proceedings that could alter this outcome. The court concluded that the applicant's continued pursuit of the matter was without merit and represented an abuse of the court's process. Consequently, the court allowed the application to strike out the proceeding.

The court ordered that the application to strike out the proceeding be allowed, and it directed that the respondent's costs of the application be paid by the applicant. The decision underscored the importance of the proper use of judicial resources and the need to prevent vexatious litigation. The court's ruling was a clear indication that persistent, unfounded claims could result in significant consequences for the litigant.

Orders