Li and Edith Cowan University - [2013] WASAT 113

LI and EDITH COWAN UNIVERSITY [2013] WASAT 113

Last Update: 17/07/2013

LI and EDITH COWAN UNIVERSITY [2013] WASAT 113
Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2013] WASAT 113
Act:	EQUAL OPPORTUNITY ACT 1984 (WA)
Case No:	EOA:2/2013	Heard:	13 FEBRUARY 2013 AND 10 APRIL 2013
Coram:	MS D TAYLOR (SENIOR MEMBER)	Delivered:	10/07/2013
No of Pages:	13	Judgment Part:	1 of 1
Result:	Complaint of unlawful discrimination on the ground of victimisation struck out
Category:	B
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	DONGGUANG LI EDITH COWAN UNIVERSITY
Catchwords:	Equal opportunity Discrimination Victimisation Commissioner for Equal Opportunity dismisses complaint as lacking in substance Complaint referred to Tribunal Issue estoppel Complaint struck out
Legislation:	Equal Opportunity Act 1984 (WA), s 67, s 89, s 90 State Administrative Tribunal Act 2004 (WA), s 47, s 47(1), s 47(2)
Case References:	Ambrus and Churches of Christ Homes & Community Services Incorporated [2006] WASAT 141 Laurent and Commissioner of Police [2009] WASAT 254 Li and Edith Cowan University [2012] WASAT 72
Orders:	On the application heard on 13 February 2013 and 10 April 2013 by Senior Member D Taylor, it is on 10 July 2013 ordered that: 1. The proceeding is struck out as lacking in substance.
Summary:	The respondent applied to strike out a claim for unlawful discrimination on the ground of victimisation that had been dismissed by the Commissioner for Equal Opportunity as lacking in substance and referred to the Tribunal at the request of the applicant. The Tribunal granted the application because the applicant was unable to adduce any evidence capable of founding the complaint.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM : HUMAN RIGHTS ACT : EQUAL OPPORTUNITY ACT 1984 (WA) CITATION : LI and EDITH COWAN UNIVERSITY [2013] WASAT 113 MEMBER : MS D TAYLOR (SENIOR MEMBER) HEARD : 13 FEBRUARY 2013 AND 10 APRIL 2013 DELIVERED : 10 JULY 2013 FILE NO/S : EOA 2 of 2013 BETWEEN : DONGGUANG LI

Applicant

AND

EDITH COWAN UNIVERSITY

Respondent

Catchwords:

Equal opportunity Discrimination Victimisation Commissioner for Equal Opportunity dismisses complaint as lacking in substance Complaint referred to Tribunal Issue estoppel Complaint struck out

Legislation:

Equal Opportunity Act 1984 (WA), s 67, s 89, s 90
State Administrative Tribunal Act 2004 (WA), s 47, s 47(1), s 47(2)

(Page 2)

Result:

Complaint of unlawful discrimination on the ground of victimisation struck out

Summary of Tribunal's decision:

The respondent applied to strike out a claim for unlawful discrimination on the ground of victimisation that had been dismissed by the Commissioner for Equal Opportunity as lacking in substance and referred to the Tribunal at the request of the applicant.
The Tribunal granted the application because the applicant was unable to adduce any evidence capable of founding the complaint.

Category: B

Representation:

Counsel:

Applicant : In person

Respondent : Mr H Jackson

Solicitors:

Applicant : N/A

Respondent : WHL Legal Pty Ltd

Case(s) referred to in decision(s):

Ambrus and Churches…

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: [2013] WASAT 113
Decision Date

CaseChat Overview and Summary

The applicant, Dr Dongguang Li, brought a claim against Edith Cowan University (ECU) for unlawful discrimination on the ground of victimisation. Dr Li, who was previously employed by ECU as an Associate Professor, alleged that he was banned from the university's campuses in February 2012 because he had made complaints of discrimination against the university to the Commissioner for Equal Opportunity in September 2011. The Tribunal was required to determine whether the applicant's claim was well-founded and if it should be dismissed as lacking in substance.

The court examined the legal principles governing the application to strike out a proceeding, including the standards set out in Ambrus and Laurent, which require that a proceeding should be struck out only if it is so obviously untenable that it cannot possibly succeed or is manifestly groundless. The court also considered the principles of issue estoppel and res judicata, but found that they did not apply to the case at hand. The key issue was whether Dr Li could provide evidence substantiating his claim of victimisation.

The Tribunal found that Dr Li could not adduce any evidence capable of founding his complaint. The film he provided as evidence did not contain any reference to his previous complaint, and thus did not support his claim. As a result, the Tribunal concluded that the proceeding was lacking in substance and struck it out.

In summary, the court found that Dr Li's claim for unlawful discrimination on the ground of victimisation was not supported by sufficient evidence, and therefore, the proceeding was struck out as lacking in substance.

Orders