Li v Edith Cowan University
[2012] WASCA 142
•6 AUGUST 2012
LI -v- EDITH COWAN UNIVERSITY [2012] WASCA 142
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASCA 142 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:34/2012 | 24 JULY 2012 | |
| Coram: | NEWNES JA | 6/08/12 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Interim application dismissed | ||
| B | |||
| PDF Version |
| Parties: | DONGGUANG LI EDITH COWAN UNIVERSITY |
Catchwords: | Practice and procedure Application for interim order in appeal Orders sought relate to issue unconnected with appeal Application dismissed |
Legislation: | Supreme Court (Court of Appeal) Rules 2005 (WA), r 3 |
Case References: | Li and Edith Cowan University [2012] WASAT 72 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : LI -v- EDITH COWAN UNIVERSITY [2012] WASCA 142 CORAM : NEWNES JA HEARD : 24 JULY 2012 DELIVERED : 6 AUGUST 2012 FILE NO/S : CACV 34 of 2012 BETWEEN : DONGGUANG LI
- Appellant
AND
EDITH COWAN UNIVERSITY
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram : JUSTICE J A CHANEY (PRESIDENT)
Citation : LI and EDITH COWAN UNIVERSITY [2012] WASAT 72
File No : EOA 6 of 2012
Catchwords:
Practice and procedure - Application for interim order in appeal - Orders sought relate to issue unconnected with appeal - Application dismissed
(Page 2)
Legislation:
Supreme Court (Court of Appeal) Rules 2005 (WA), r 3
Result:
Interim application dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr H H Jackson
Solicitors:
Appellant : In person
Respondent : Office of Legal Services
Case(s) referred to in judgment(s):
Li and Edith Cowan University [2012] WASAT 72
(Page 3)
1 NEWNES JA: On 24 July 2012, I dismissed an application by the appellant for interim orders in the appeal in respect of what the appellant said was the publication by the respondent of material defamatory of him. I said I would provide reasons for my decision. These are the reasons.
2 To put the application in context it is necessary to describe briefly the background to the appeal.
3 The appellant was formerly employed by the respondent in an academic position. The present appeal has its origins in disciplinary proceedings which the respondent instituted against him. Those disciplinary proceedings ultimately led to the appellant's dismissal. The appellant then lodged various complaints with the Commissioner for Equal Opportunity alleging that he had been unlawfully discriminated against in the course of the disciplinary proceedings. The Commissioner concluded that the appellant's complaints of discrimination were misconceived and dismissed them. The appellant then required the Commissioner to refer the complaints for review by the State Administrative Tribunal under s 90 of the Equal Opportunity Act 1984 (WA).
4 The Tribunal found that the complaints of unlawful discrimination had not been made out and dismissed them: Li and Edith Cowan University [2012] WASAT 72. The appellant subsequently filed an appeal notice in this court, seeking leave to appeal against the Tribunal's decision.
5 The grounds of appeal are not in conventional form and it is not easy to discern from them the errors which the appellant says were made by the Tribunal. Reading them in conjunction with the appellant's written submissions, it appears that the appellant's complaints about the Tribunal's decision include: that the appellant was not permitted to use a Mandarin interpreter in the hearing before the Tribunal; that in reaching its conclusion the Tribunal made a number of errors of fact; that the Tribunal failed to take into account relevant evidence, including that the appellant was suffering from a severe psychiatric condition at the time he was dismissed; and that the Tribunal treated the appellant's application as having been made under s 66B of the Equal Opportunity Act (dealing with discrimination against employees) whereas it was made under s 66A (dealing with discrimination on the ground of impairment).
(Page 4)
6 The appellant seeks the following orders on the appeal:
1. Apology from [the respondent];
2. Reinstatement to my former position at the [respondent];
3. Compensation for my loss.
7 The current application is concerned with a different matter. To explain that application, it is necessary to turn first to the supporting affidavit of the appellant. Again, it is not entirely easy to follow. The text simply refers to an annexure to the affidavit. The annexure is in two parts. The first part consists of a statement by the appellant alleging discrimination and victimisation by the respondent and an assertion that the respondent has downloaded onto a website material which is defamatory of the appellant. Below that is a picture of a computer screen on which the website is shown. Apart from the heading of the website, it is so indistinct as to be indecipherable. The second part of the annexure, however, is a photocopy of the website. It appears to have been obtained from an internet search carried out on 6 June 2012. The website has a photograph of the appellant and contains a short description of the appellant's dispute with the respondent and of earlier proceedings in Fair Work Australia in relation to the matter. The appellant says that it is a 'distorted and twisted' version of events.
8 I should say that there is no obvious connection between the website and the respondent and there is nothing to indicate why the appellant believes that the respondent is responsible for the publication on the website. On the hearing of this application, the appellant suggested that the connection was to be found in the photograph, which he said was held by the human resources department of the respondent.
9 In the application, the appellant seeks the following relief in respect of the alleged defamation:
1. Order of removing the defamatory info about me from the [named website];
2. Order of making a public apology by [the respondent];
3. Order of compensation for damage done by [the respondent]. [sic]
10 The application is misconceived. The Court of Appeal has no power to grant such relief. What the appellant seeks are not interim orders in the appeal. An 'interim order' in an appeal is defined in r 3 of the Supreme Court (Court of Appeal) Rules 2005 (WA). Putting aside a number of
(Page 5)
- specific meanings, it means 'any other order that the Court of Appeal may make before the appeal is concluded ….' The orders that the court may make before an appeal is concluded are orders that the court has power to make in connection with the appeal. The orders the appellant seeks are unrelated to the appeal. They are primary relief in respect of an entirely different issue, namely, the alleged defamation of the appellant by the publication on the website.
11 If the appellant wishes to take legal action in respect of the alleged defamation, that can only be done by way of fresh originating proceedings. In saying that I should not, however, be taken as encouraging such a course, which, if it is to be undertaken, should be undertaken only after legal advice has been obtained on the merits and the appellant has a clear understanding of the time, costs and risks involved. Nor should I be understood as indicating any view on the merits. I am not in a position to express any view and, in any event, it would be quite inappropriate to do so.
12 It was for those reasons that I dismissed the application