- 2 Any application to dismiss or strike out a proceeding in the Tribunal should be approached with a great deal of caution. That will be all the more so when a party whose case is the subject of an application under s 47 is self-represented, does not have the benefit of legal representation or legal training and may have difficulty in precisely setting out their claim in writing.
- 3 Nothing in s 47 of the SAT Act contains a temporal restriction on when an application under that section may be made or considered. Plainly, as in this case, an application may be made at an interlocutory stage, but it may also be made in the course of the substantive hearing of a proceeding. The power in s 47 should be exercised particularly cautiously if an application for its exercise is made prior to the substantive hearing of an applicant's case.
- 4 When, as in the present case, an application is made at an interlocutory stage, the Tribunal should assume that all of the factual assertions made by an applicant will be made out and consider, from that perspective, whether the proceeding is frivolous, vexatious, misconceived or lacking in substance. Even then, however, caution should be applied in the exercise of the power in s 47. If there is a serious question of fact to be determined, that factor may render it inappropriate to dismiss the proceeding pursuant to s 47 of the SAT Act.
- 5 In relation to its exercise at the interlocutory stage, the power in s 47 of the SAT Act has been viewed as analogous to the powers of courts to summarily dismiss a proceeding when the pleadings fail to disclose any reasonable cause of action.
The decision to dismiss an application as lacking in substance is one that should only be taken after very careful consideration of the case and where it is clear that there is no realistic prospect of success of an application. While the Tribunal may be conscious of an applicant's desire to air their grievance so that they can be fully ventilated and any witnesses the applicant wants heard can be called, to permit proceedings to continue on the basis of very broad allegations where there is no prospect of success creates a substantial prejudice to the respondent; see Ambrus and Churches of Christ Homes & Community Services Incorporated [2006] WASAT 141 at [44] - [45].
[65] A complaint is misconceived or lacking in substance where the complainant has no arguable case in fact or law which should be allowed to be resolved at a full hearing; see Cocks Macnish & Anor v Biundo [2004] WASCA 194 at [30] and at [79].
The term 'misconceived' connotes a misunderstanding of legal principle while the term 'lacking in substance' connotes an untenable proposition of law or fact; see Laurent at [23].
12. In Re Rules of the Supreme Court 1971 (WA); Ex parte Gates [2018] WASC 213, Justice Vaughan undertook a comprehensive review of the meaning of each of the terms 'abuse
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