MORISON V STATE TRANSIT AUTHORITY OF NEW SOUTH WALES [1990] NSWCA 128

MORISON V STATE TRANSIT AUTHORITY OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE JA 29 October 1990, 29 October 1990 [1990] NSWCA 128

KEY WORDS: APPEAL — DISMISSAL — FRIVOLOUS OR VEXATIOUS — ABUSE OF PROCESS — NO REASONABLE GROUNDS

Clarke JA This is an application for the dismissal of an appeal on the ground that it is frivolous or vexatious, that it is an abuse of the process of the Court and that no reasonable grounds of appeal are disclosed in the notice of appeal. It goes without saying that an order in favour of the applicant would only be made in a case in which it is absolutely clear that the appeal is frivolous.

The incident which gave rise to the present application occurred on 27 July 1983 and as a result of that incident the claimant dismissed the opponent from its service. The opponent appealed, as he was entitled to do, from that decision.

His appeal was heard by the Transport Appeals Board on 20 September 1983. That Board conditionally mitigated the penalty of dismissal imposed by the Authority. It ordered that the plaintiff be suspended without pay for a period of six months commencing 11 August 1983, during which period he should take every opportunity to seek professional help.

The Board further ordered that at the conclusion of the suspension period the opponent was to be - "eligible for restoration to the services of the Urban Transit Authority in some position appropriate to his demonstrated skills, aptitude and abilities with the exception of bus operation and clearly subject to the Urban Transit Authority being satisfied that he - that is the opponent - has been able to adjust his problems and has been able to accommodate to a cooperative group working situation. That will be a matter for decision by the Authority."

It would appear that the opponent did not resume employment with the claimant but many years later, in 1989, he lodged proceedings in the Supreme Court challenging the order of the Board. He contended that that order was vitiated by legal error.