King v SA Psychological Board - [1998] SASC 6621

KING v SA PSYCHOLOGICAL BOARD

Magistrates Appeal

Bleby J

This is an appeal against a decision of the Equal Opportunity Tribunal presided over by a Judge of the District Court. The Tribunal’s jurisdiction arose under s9 of the Whistleblowers Protection Act 1993 to which I shall return. That section provides that an act of victimisation under that Act may be dealt with as if it were an act of victimisation under the Equal Opportunity Act 1984.

The right of appeal to this Court is conferred by s98 of the Equal Opportunity Act 1984. The nature of the appeal is governed by the following subsections of s98:

“(4).... An appeal under this section must be conducted as a review of the decision or order of the Tribunal.
(5)... The Supreme Court may, on the hearing of an appeal, exercise one or more of the following powers:
(a).... affirm, vary or quash the decision or order appealed against, or substitute, or make in addition, any decision or order that should have been made in the first instance;
(b).... remit the subject matter of the appeal to the Tribunal for further hearing or consideration or for rehearing;
(c).... make any order as to costs or any other matter that the justice of the case requires.”

Because the Tribunal was presided over by a Judge of the District Court, r96.04 of the Supreme Court Rules 1987 requires that the appeal be to the Full Court of this Court, “unless a Judge, on an application made within seven (7) days of the filing and service of the Notice of Appeal by any party to the appeal, decides that the subject matter of the appeal is of such a nature as not to warrant the attention of the Full Court in which case the appeal shall be heard and determined by a single Judge”. The Notice of Appeal was filed on 22 January 1998. However, an application under r96.04 was not made until 24 March 1998, two days before the listing of the appeal for hearing before me. Pursuant to r3.04, I extended the time within which to make such an application and, with the consent of the respondent, I decided that the subject matter of the appeal was of such a nature as not to warrant the attention of the Full Court. I then proceeded to hear the appeal myself.

Shortly before the appellant’s claim of victimisation was to be heard before the Tribunal, the appellant, by letter, withdrew his complaint. The respondent made an application for costs on the ground that the complaint was frivolous or vexatious. Section 26 of the Equal Opportunity Act relevantly provides as follows:

“26.(1)...... The Tribunal may make an order for costs in any proceedings in accordance with the scale prescribed for that purpose -
(a)where in the opinion of the Tribunal the proceedings are frivolous or vexatious; or

(b).... where in the opinion of the Tribunal the proceedings have been instituted or prosecuted for…

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.

Continue reading King v SA Psychological Board

Details

AGLC: King v SA Psychological Board [1998] SASC 6621
Case: [1998] SASC 6621
Decision Date: 9 April 1998

CaseChat Overview and Summary

In this appeal, the appellant, King, challenges the decision of the Equal Opportunity Tribunal, presided over by a Judge of the District Court, which ordered him to pay costs to the respondent, the South Australian Psychological Board, under section 26 of the Equal Opportunity Act 1984. The appeal was brought under section 98 of the same Act. The central dispute revolves around the respondent's handling of a complaint made by the appellant in 1995 under the Whistleblowers Protection Act 1993, which the appellant claimed was not properly investigated, resulting in victimisation. The appellant subsequently withdrew the complaint before it was heard by the Tribunal.

The legal issues the court had to address include whether the complaint to the Tribunal was frivolous or vexatious, as defined under section 26 of the Equal Opportunity Act, and whether the Tribunal was justified in ordering the appellant to pay costs. The court also needed to determine if the appellant's allegations, as presented, could constitute a valid claim of victimisation under the Whistleblowers Protection Act. The court considered whether the appellant's failure to properly identify a new disclosure, the lack of evidence that the detriment was caused by the respondent due to the disclosure, and the withdrawal of the complaint indicated that the proceedings were without merit.

The court found that the appellant's complaint did not constitute a valid disclosure under the Whistleblowers Protection Act as it was a repeat of a previous complaint. Additionally, the detriment alleged by the appellant was not caused by the respondent on the grounds of making a disclosure, but rather due to the respondent's failure to reach a specific conclusion in their investigation. The court concluded that the proceedings were frivolous or vexatious because they had no prospect of success and were likely to result in expense and inconvenience without any possibility of a favourable outcome. The appellant's withdrawal of the complaint to allow the Ombudsman to investigate further did not change the nature of the proceedings before the Tribunal. Therefore, the court dismissed the appeal and upheld the Tribunal's decision to order the appellant to pay costs.

Orders