LI -v- EDITH COWAN UNIVERSITY [No 3] [2013] WASCA 277

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASCA 277
Court:	THE COURT OF APPEAL (WA)	Published:	05/12/2013
Case No:	CACV:34/2012	Heard:	10 OCTOBER 2013
Coram:	PULLIN JA NEWNES JA MURPHY JA	Delivered:	10/10/13
No of pages:	18	Judgment Part:	1 of 1
Result:	Leave to appeal refused Appeal dismissed
Category:	B
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Parties:	DONGGUANG LI EDITH COWAN UNIVERSITY
Catchwords:	Equal opportunity Indirect discrimination on the ground of impairment Appeal from decision of State Administrative Tribunal Whether grounds of appeal raise questions of law Turns on own facts
Legislation:	Equal Opportunity Act 1984 (WA), s 66A(3), s 66B(2)(c), s 66B(2)(d)
Case References:	Li and Edith Cowan University [2012] WASAT 72 Li v Edith Cowan University [2012] FWA 1887 Lourey v Legal Profession Complaints Committee [2012] WASCA 112 Oldfield v Secretary, Department of Primary Industry (1988) 78 ALR 718 Paridis v Settlement Agents Supervisory Board [2007] WASCA 97 Summerville and Department of Education [2006] WASAT 174 SZJZS v Minister for Immigration & Citizenship [2008] FCA 789

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : LI -v- EDITH COWAN UNIVERSITY [No 3] [2013] WASCA 277 CORAM : PULLIN JA

NEWNES JA

MURPHY JA

HEARD : 10 OCTOBER 2013 DELIVERED : 10 OCTOBER 2013 PUBLISHED : 5 DECEMBER 2013 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:

Equal opportunity - Indirect discrimination on the ground of impairment - Appeal from decision of State Administrative Tribunal - Whether grounds of appeal raise questions of law - Turns on own facts

Legislation:

Equal Opportunity Act 1984 (WA), s 66A(3), s 66B(2)(c), s 66B(2)(d)

Result:

Leave to appeal refused

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : No appearance

Respondent : Mr H H Jackson

Solicitors:

Appellant : No appearance

Respondent : Office of Legal Services, Edith Cowan University

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

Li and Edith Cowan University [2012] WASAT 72
Li v Edith Cowan University [2012] FWA 1887
Lourey v Legal Profession Complaints Committee [2012] WASCA 112
Oldfield v Secretary, Department of Primary Industry (1988) 78 ALR 718
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97
Summerville and Department of Education [2006] WASAT 174
SZJZS v Minister for Immigration & Citizenship [2008] FCA 789

REASONS OF THE COURT

Introduction

1 The appellant had been employed by Edith Cowan University (ECU or the respondent) for approximately 15 years in an academic position. The appellant lodged complaints with the Commissioner for Equal Opportunity (Commissioner), claiming that he had been the subject of indirect discrimination on the ground of impairment by various office bearers of the respondent in late 2010 to early 2011. The Commissioner dismissed the appellant's…

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] WASCA 277
Decision Date: 5 DECEMBER 2013

CaseChat Overview and Summary

In Li v Edith Cowan University [No 3], the plaintiff, Ms Li, appealed against a decision of the State Administrative Tribunal (SAT) which had dismissed her complaint of indirect discrimination on the grounds of impairment. The dispute centred on the university's conduct in relation to the plaintiff's application to study a particular course. The appeal was heard in the Supreme Court of Western Australia.

The legal issues that the court was required to determine included whether the grounds of appeal raised questions of law, and if so, whether the appeal should be allowed. The core issue was whether the SAT had correctly applied the relevant provisions of the Equal Opportunity Act 1984 (WA) in finding that the university's conduct did not constitute indirect discrimination. The court needed to consider the nature of the university's actions and whether these actions had the effect of disadvantaging the plaintiff because of her impairment.

The Supreme Court held that the appeal did not raise any questions of law that warranted further consideration. The court found that the SAT had properly applied the law and made its decision based on the facts of the case. The court noted that the SAT's findings regarding the university's conduct and the effect of those actions were within its jurisdiction and that there was no error in its application of the law. Consequently, the court dismissed the appeal and refused leave to appeal.

Orders

Orders of the court

Leave to appeal refused

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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