Li v Edith Cowan University [No 2]
[2012] WASCA 210
•22 OCTOBER 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: LI -v- EDITH COWAN UNIVERSITY [No 2] [2012] WASCA 210
CORAM: PULLIN JA
MURPHY JA
HEARD: 12 OCTOBER 2012
DELIVERED : 12 OCTOBER 2012
PUBLISHED : 22 OCTOBER 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
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :NEWNES JA
Citation :LI -v- EDITH COWAN UNIVERSITY [2012] WASCA 142
File No :CACV 34 of 2012
Catchwords:
Practice and procedure - Application for a review of an interlocutory decision of a single judge - Where no error is demonstrated
Practice and procedure - Application for an extension of time in which to apply for a review of a decision of a single judge
Legislation:
Equal Opportunity Act 1984 (WA)
Supreme Court (Court of Appeal) Rules 2005 (WA)
Supreme Court Act 1935 (WA)
Result:
Application for an extension of time to apply for review dismissed
Application for review 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):
Keating v The State of Western Australia [2007] WASCA 98; (2007) 35 WAR 1
Li and Edith Cowan University [2012] WASAT 72
Li v Edith Cowan University [2012] WASCA 142
REASONS OF THE COURT: At the conclusion of the hearing on 12 October 2012, the court ordered that the appellant's application for an extension of time to apply for a review of the decision of Newnes JA should be dismissed, that the application for review should be dismissed and that the appellant should pay the respondent's costs fixed at $400. The court stated that it would publish reasons for those orders later. These are the reasons.
The appellant's application was made under s 61(3) of the Supreme Court Act 1935 (WA). The appellant sought an order to set aside or vary the orders made by Newnes JA on 24 July 2012. The orders Newnes JA made were orders dismissing the appellant's application for relief which the court had no power to grant and that the appellant pay the respondent's costs of $400.
The background to the appeal is as follows. The appellant was formerly employed by the respondent in an academic position. He had been employed for 15 years and had risen to the position of Associate Professor. He was eventually suspended, pending the outcome of a misconduct investigation. This led ultimately to the termination of the appellant's employment on 11 January 2011.
The appellant then lodged various complaints with the Equal Opportunity Commission, alleging that he had been unlawfully discriminated against in the course of the proceedings. The Commissioner for Equal Opportunity concluded that the 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). 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.
The appellant then noticed a website on which he said material defamatory about him was being published. He brought an application before Newnes JA, seeking an:
(a)order of removing the defamatory info about me from the [named website];
(b)order of making a public apology by [the respondent]; and
(c)order of compensation for damage done by [the respondent] [sic].
Newnes JA pointed out that the application was misconceived and the Court of Appeal had no power to grant such relief and dismissed the application.
Rule 8 of the Supreme Court (Court of Appeal) Rules 2005 (WA) requires an application for the review of a decision of a single judge to be made within five days of the order. The appellant was in court when the order was made by Newnes JA on 24 July 2012. The application for review was not filed until 30 August 2012. The appellant applies for an extension of time to seek the review. An extension of time will not be granted if the application for review has no merit.
An appellant must demonstrate error in the decision under review before the Court of Appeal will set it aside: Keating v The State of Western Australia [2007] WASCA 98; (2007) 35 WAR 1 [21]. The appellant has not demonstrated error and the application for review therefore has no merit. The decision of Newnes JA was correct, for the reasons given: see Li v Edith Cowan University [2012] WASCA 142.
As a result, the application for an extension of time was dismissed along with the application for review.
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