STICCA and HOUSING AUTHORITY - [2018] WASAT 67 (S)

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: STATE ADMINISTRATIVE TRIBUNAL ACT 2004 (WA)
CITATION:   STICCA and HOUSING AUTHORITY [2018] WASAT 67 (S)
MEMBER:   SENIOR MEMBER J MANSVELD
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED:   21 AUGUST 2018
FILE NO/S:   EOA 28 of 2017
BETWEEN:   MARIO GUISEPPE STICCA
Applicant
AND
HOUSING AUTHORITY
Respondent

Catchwords:

Equal opportunity - Cost application under s 87 of the State Administrative Tribunal Act 2004 (WA) - Cost application dismissed

Legislation:

Equal Opportunity Act 1984 (WA)
Freedom of Information Act 1992 (WA)
Legal Practitioners (State Administrative Tribunal) Determination 2012 (WA)
State Administrative Tribunal Act 2004 (WA), s 9, s 47(1), s 87
State Administrative Tribunal Rules 2004 (WA), r 40, r 41

Result:

Application for costs dismissed

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	Mr Simon Thackrah

Solicitors:

Applicant	:	N/A
Respondent	:	Housing Authority

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

Barnett and Barrier Reef Pools (WA) Pty Ltd [2016] WASAT 50
Chew and Director General of the Department of Education and Training [2006] WASAT 248
Sticca and Housing Authority [2018] WASAT 67
Summerville and Department of Education & Training & Ors [2006] WASAT 368 (S)
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 28 July 2018 the Tribunal published its decision in Sticca and Housing Authority [2018] WASAT 67 (Sticca).
Mr Mario Sticca had made a complaint of discrimination against the Housing Authority under the Equal Opportunity Act 1984 (WA) (EO Act).
Mr Sticca had alleged unlawful discrimination on the grounds of sex, age and race in the area of good services and facilities.
The complaint was dismissed.
The Housing Authority is seeking its costs pursuant to s 87 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
The EO Act contains no provision as to costs.

The strike out application

At a directions hearing on 22 January 2018 before a judicial member of the Tribunal, the Housing Authority applied to have Mr Sticca's complaint struck out pursuant to s 47(1) of the SAT Act.
The judicial member declined to hear the application, it would appear, on the basis that the determination of Mr Sticca's complaint would be better served by way of a hearing on the merits of his case.
At the directions hearing Mr Sticca was advised that he would need to show that any unfair treatment he may have received was due to the grounds he nominated in his complaint to the Equal Opportunity Commission.
In the context of the Housing Authority's application for strike out, it does not appear that Mr Sticca was warned about the potential for a costs application to be made against him should his complaint not be successful.

The relevant legislation

87. Costs of parties and others
(1)Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.
(2)Unless otherwise specified in the enabling…

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: [2018] WASAT 67 (S)
Decision Date: 21 AUGUST 2018

CaseChat Overview and Summary

In the recent case of STICCA and HOUSING AUTHORITY, the matter was heard in the State Administrative Tribunal of Western Australia. The dispute involved an individual, STICCA, who sought redress for alleged discrimination in employment by the Housing Authority. STICCA claimed that the Housing Authority had acted in breach of the Equal Opportunity Act 1984 (WA) by failing to provide reasonable adjustments in the workplace. The central issue was whether the Housing Authority was obligated to implement reasonable adjustments and if STICCA was entitled to seek costs under section 87 of the State Administrative Tribunal Act 2004 (WA).

The primary legal issues before the Tribunal were the interpretation and application of the Equal Opportunity Act 1984 (WA) in relation to the duty of employers to provide reasonable adjustments for employees with disabilities. Additionally, the Tribunal had to determine whether the costs incurred by STICCA in pursuing this matter could be claimed under section 87 of the State Administrative Tribunal Act 2004 (WA). The Tribunal was tasked with balancing the statutory rights of the employee against the administrative and financial implications for the employer.

In its decision, the Tribunal found that while the Housing Authority had indeed failed to provide reasonable adjustments as required by the Equal Opportunity Act 1984 (WA), the circumstances did not warrant a cost application under section 87 of the State Administrative Tribunal Act 2004 (WA). The Tribunal concluded that the costs incurred by STICCA in pursuing this matter were not justified, given the limited scope of relief sought and the overall outcome of the case. Consequently, the Tribunal dismissed STICCA's application for costs.

Orders