Atieh v The State of Western Australia
[2017] WASCA 116
•22 JUNE 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ATIEH -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 116
CORAM: MURPHY JA
MITCHELL JA
HEARD: 22 JUNE 2017
DELIVERED : 22 JUNE 2017
FILE NO/S: CACV 35 of 2017
BETWEEN: MUSTAFA M ATIEH
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S :CACV 36 of 2017
BETWEEN :MUSTAFA M ATIEH
Appellant
AND
DAVID J BASHAM
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :LE MIERE J
Citation :ATIEH -v- THE STATE OF WESTERN AUSTRALIA [2017] WASC 81
File No :CIV 3093 of 2016, CIV 3094 of 2016
Catchwords:
Practice and procedure - Hearing to show cause - Whether any grounds have reasonable prospect of succeeding pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA) - Whether appeal to be dismissed pursuant to r 43(2)(g)(ii) of the Supreme Court (Court of Appeal) Rules 2005 (WA) for failure to comply with the rules - Turns on own facts
Legislation:
Supreme Court (Court of Appeal) Rules 2005 (WA), r 32, r 43(2)(g)(i), r 43(2)(g)(ii)
Result:
Appeals dismissed
Category: B
Representation:
CACV 35 of 2017
Counsel:
Appellant: In person
Respondent: Ms R Young
Solicitors:
Appellant: In person
Respondent: State Solicitor for Western Australia
CACV 36 of 2017
Counsel:
Appellant: In person
Respondent: Ms R Young
Solicitors:
Appellant: In person
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Atieh v Basham [2017] WASC 81
REASONS OF THE COURT: These matters came before the court today by way of two Registrar's notices to attend, both dated 17 May 2017. The purpose of the hearing was for the appellant, Mr Atieh, to show cause, in each matter, as to why the appeal should not be dismissed pursuant to r 43(2)(g)(i) or r 43(2)(g)(ii) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Rules).
Having heard Mr Atieh, we dismissed each of the appeals and said we would publish reasons. These are our reasons.
Background to both matters and the primary decision
Both appeals are against the decision of Le Miere J in Atieh v Basham,[1] delivered 28 March 2017, in which his Honour dismissed originating motions filed by the appellant (Mr Atieh) in CIV 3093 of 2016 and CIV 3094 of 2016. In the hearing before Le Miere J, Mr Atieh appeared in person and there was no appearance by any defendant.
[1] Atieh v Basham [2017] WASC 81.
Justice Le Miere summarised both matters as follows:[2]
In these matters the plaintiff seeks leave pursuant to O 67 r 5 of the Supreme Court Rules 1971 (WA) (RSC) to issue a writ of summons against the State of Western Australia and David J Basham, at the time a sergeant at Northam police station, respectively.
[2] Atieh [1].
The procedural background leading up to the proceedings before Le Miere J were summarised by Le Miere J as follows:[3]
The plaintiff, Mr Atieh feels aggrieved by the actions of a number of public authorities over a number of years. The plaintiff is particularly aggrieved by the actions or inactions of police officers at Northam police station following an incident at the plaintiff's kebab shop in Northam on 27 September 2014. In 2015 the plaintiff tried to issue a writ against the government of Western Australia and the police in Northam in proceedings numbered CIV 2849 of 2015 and CIV 2850 of 2015. The Principal Registrar considered the proposed writs to be an abuse of process and determined that the writs could not be filed without leave of a judge being first obtained pursuant to RSC O 67 r 5. I dismissed the applications on a number of grounds including the following. First, the parties against whom the plaintiff wished to bring the action, that is the Western Australian government and the police in Northam, are not legal entities against whom action may be brought. Secondly, the plaintiff's application failed to disclose facts which might give rise to a cause of action against the State of Western Australia or police officers. Thirdly, the plaintiff had not adduced evidence in admissible form of any facts which might found a cause of action.
[3] Atieh [2].
After Le Miere J dismissed the earlier applications, Mr Atieh attempted to file fresh originating motions to commence proceedings against the State of Western Australia and Sergeant Basham. The principal registrar then decided that the originating motions appeared to be an abuse of process and determined that the motions could not be filed without leave of a judge being first obtained pursuant to O 67 r 5 of the Rules. The hearing before Le Miere J was concerned with Mr Atieh's applications for that leave.[4] The matter of CIV 3093 of 2016 concerned Mr Atieh's application for leave to issue a writ against the State. The matter of CIV 3094 of 2016 concerned Mr Atieh's application for leave to issue a writ against a police officer, Sergeant Basham.
[4] Atieh [3].
A hearing was held on 31 January 2017 before Le Miere J. Justice Le Miere informed Mr Atieh of various deficiencies with both applications, including that the plaintiff had not identified with particularity his proposed causes of action, there was insufficient evidence adduced to show that any proposed action had any reasonable prospect of success, some of his claims were statute barred if they did give rise to any cause of action, and other claims, such as claims of racial or religious discrimination, were not within the jurisdiction of the Supreme Court. Justice Le Miere adjourned Mr Atieh's applications to give Mr Atieh an opportunity to address these deficiencies.[5]
[5] Atieh [6].
After this, the judge noted that Mr Atieh filed further affidavits:[6]
On 20 February 2017 the plaintiff filed a further affidavit in each motion. The affidavit in CIV 3093 of 2016 states that it consists of a proposed indorsement of claim and 52 pages of supporting documents. The affidavit in CIV 3094 of 2016 commenced by listing 13 police officers whom the plaintiff wishes to sue in addition to Sergeant Basham. The affidavit contains a proposed indorsement of claim and states that there are 19 pages of a statement of evidence and a further 279 pages of evidence.
[6] Atieh [7].
The judge also set out in detail Mr Atieh's account of the incident on 27 September 2014, and the contents of a police incident report in relation to the incident which Mr Atieh produced.[7] In general terms, Mr Atieh's account of the incident was as follows.
[7] Atieh [9] - [10].
Two men, previously unknown to Mr Atieh, entered Mr Atieh's kebab shop and, according to Mr Atieh, threatened to kill Mr Atieh because Mr Atieh was a Muslim. Mr Atieh's children were present at the time the threats were made. He reported the matters to the police. Mr Atieh says that he was told that one of the two men would face serious charges. However, Mr Atieh states that he later believed that the matter was being covered up by the police.
The judge noted that Mr Atieh complained to the Corruption and Crime Commission, the Western Australian Police, the Ombudsman and the Australian Human Rights Commission, however, none of the complaints were resolved to Mr Atieh's satisfaction.[8]
[8] Atieh [11] - [14].
Mr Atieh's proposed indorsement of claim in the matter of CIV 3094 of 2016 was to the effect that he wanted the court:
(a)to charge the two offenders who were involved in the incident at the kebab shop;
(b)to investigate allegedly false charges on Mr Atieh's own record (covering four specified offences, including possession of stolen or unlawfully obtained property) and to clear Mr Atieh's name; and
(c)to award him $1 million in compensation, plus interest.[9]
[9] Atieh [15].
Justice Le Mere found, in essence, that the court cannot charge and prosecute the two alleged offenders, and that Mr Atieh was not a person who was authorised to commence prosecutions of indictable offences.[10] Nor did the court have power to investigate charges on Mr Atieh's record or clear his name of any false charges. As for the claim for damages, neither the proposed indorsement of claim, nor the affidavit material, disclosed any cause of action known to the law against Sergeant Basham, or, for that matter, the other police officers referred to in the affidavit material. Accordingly, the application in CIV 3094 of 2016 was dismissed.
[10] Atieh [16].
In relation to the matter of CIV 3093 of 2016, Le Miere J summarised Mr Atieh's proposed indorsement of claim as follows:[11]
The plaintiff's proposed indorsement of claim says that the Department of Transport accused him of mental illness without any supporting document or psychologist's report. The indorsement of claim goes on to say that CASA stopped the plaintiff from training as a pilot relying upon reports from the Department of Transport. The indorsement further refers to false accusations of assault and entries on his criminal record for things he did not do. The indorsement goes on to refer to harassment by the Shire of Merredin and harassment and corruption from the Shire of Northam.
[11] Atieh [20].
The judge continued:[12]
The plaintiff annexes to his affidavit a Medical Assessment Certificate, Fitness to Drive which states that the plaintiff suffers from 'mental/physical' and that the Department of Transport has reason to believe that the following background information may be of some assistance: 'Requires medical re-assessment for the renewal of the licence'. There are subsequent certificates to a similar effect.
The plaintiff's application does not disclose any cause of action known to the law against the State of Western Australia or evidence in support of any such cause of action.
[12] Atieh [21] - [22].
The appeals to this court
The appeal in CACV 35 of 2017 purports to be an appeal against the decision of Le Miere J regarding the dismissal of the originating summons against the State in CIV 3093 of 2016. The appeal in CACV 36 of 2017 purports to relate to the dismissal of the originating summons in CIV 3094 of 2016.
Appellant's case in CACV 35 of 2017
There appears to be 23 grounds of appeal. The main points asserted in these grounds of appeal may be summarised as follows:
1.Mr Atieh is a victim of a racially fuelled crime.
2.There is proof that the offenders in the incident at the kebab shop caused Mr Atieh financial loss and psychiatric harm. The incident and accusations of mental illness also caused Mr Atieh to delay his education as a pilot and thus had an effect on Mr Atieh's future employment prospects. It is also claimed that his family suffered psychiatric harm and that the events caused his separation with his wife.
3.The police, the magistrate and the court system are all affected by corruption, as may be some government departments.
4.Mr Atieh has been falsely accused of crimes and falsely charged in respect of those crimes.
5.The judge did not pay proper regard to the 52‑page affidavit filed by Mr Atieh.
6.The judge erred in dismissing his case without trial.
7.The judge erred in not allowing the admission of evidence relating to the presence of discrimination and to the claimed financial loss and psychiatric harm.
In his submissions, Mr Atieh states that it is unjust for him to be prevented from lodging claims in relations to incidents that occurred more than six years ago. He states that he is suffering the psychological impact of the incidents, and that the incidents related to continuing acts. He refers in particular to a Department of Transport form, which he says 'accused me of mental illness'.[13]
[13] Appellant's submissions, par 4.
As to the lack of evidence, Mr Atieh states that other documents and evidence will be provided during any trial that may be ordered.
Mr Atieh submits that reports and records stating that he had a mental illness prevented Mr Atieh from being educated as a pilot and caused him other loss.
In CACV 35 of 2017, Mr Atieh seeks orders to the following effect:
1.To grant Mr Atieh a fair trial, having regard to Mr Atieh's disability and the fact that Mr Atieh is self‑represented and that English is Mr Atieh's second language.
2.To pay $3 million as compensation for the loss and suffering endured by Mr Atieh and his family.
3.Interest pursuant to s 32 of the Supreme Court Act 1935 (WA) at the rate of 6% per annum.
In his draft chronology, Mr Atieh also details numerous complaints over many years going back to 1997, including complaints regarding Claremont College of Art and Design, the police, the City of Wanneroo, Centrelink, the Department of Transport, Civil Aviation Safety Authority (CASA), Merredin local government and the government of Western Australia.
Mr Atieh submits that he believes that he is caught up in a conspiracy by the authorities to disrupt his life because he is a Muslim.
Appellant's case in CACV 36 of 2017
There are nine grounds of appeal, which contain assertions to the following effect:
1.The judge erred in dismissing the case without trial and without allowing for cross-examination of the offenders.
2.The judge erred by not accepting strong evidence against the police which indicated that the police had covered up a crime.
3.The judge covered up the wrongs of the police officers.
4.The judge failed to afford Mr Atieh justice by dismissing the case without trial and by covering up the wrongs of the police officers.
5.There is evidence to show that the judge intended to cover up the wrongs of the police officers, who themselves were covering up a 'crime against little kids'.
6.On three previous occasions, Mr Atieh has applied to the Supreme Court, and each time there has been 'strong evidence' of the court covering up the wrongs of the police officers.
7.The police have admitted 'in some of the evidence' to committing the crimes that Mr Atieh has accused them of committing.
8.It was a miscarriage of justice for the judge not to allow a trial.
9.Mr Atieh provided the judge with sufficient evidence to support his claims.
In his submissions, Mr Atieh refers to the criminal law as it relates to threats to kill, damage to property, attempting to pervert the course of justice, conspiring to pervert the course of justice, threatening witnesses, fabricating evidence, destroying evidence, commencing false prosecution, corruption, racial harassment, accessories and attempts.
In his submissions, Mr Atieh also reiterates his contention that the police were involved in covering up a crime and in laying false charges against him. Mr Atieh also says that he has suffered financial loss and that he and his family have also suffered psychological harm as a result of the actions of the police.
Mr Atieh also included a chronology relating to his interactions with the police since the incident at his kebab shop.
Mr Atieh included a letter in his appellant's case, which explained that he was self‑represented, he has a disability, English was his second language, and that he would find it much easier to explain himself orally in court. The letter also explained that if the matter where to go to trial, about half of all the material that he would seek to rely upon was contained in his affidavit that he has sworn in support of the matter.
In CACV 36 of 2017, Mr Atieh seeks orders to the following effect:
1.Charges be laid against the two offenders who attacked him on 27 September 2014.
2.There be a full investigation about the false charges on Mr Atieh's record, and for Mr Atieh to be cleared of all false charges, being:
(a)case no 2392175/2013: disorderly behaviour in public;
(b)case no 137849/2016: breach of violence restraining order;
(c)case no 242744/2016: possession of stolen or unlawfully obtained property.
(d)case no 437430/2016: failure to return an expired number plate within three months of the expiry of the licence.
3.The payment of $1 million as compensation for all the suffering endured by Mr Atieh and his family since the incident on 27 September 2014.
4.Interest pursuant to s 32 of the Supreme Court Act 1935 (WA) at the rate of 6% per annum.
Disposition
Making full allowance for the fact that Mr Atieh is a litigant in person, it is nevertheless apparent on the face of the materials filed in each appeal that none of the grounds of appeal has a reasonable prospect of succeeding. In summary, the grounds (and submissions said to be in support of the grounds) do not disclose any error of law or fact in the judge's reasoning in the primary decision. Also, the materials in CACV 35 of 2017 contain a range of vague and disparate allegations for which the State of Western Australia could not conceivably be liable, including:
(a)complaints against the Claremont College of Art and Design that Mr Atieh's 'marks and efforts had been rewarded to someone else' in 1997;
(b)complaints about his failures in legal proceedings in 2001 against the City of Wanneroo, and against CASA in 2011; and
(c)complaints about cessation of Centrelink payments whilst he was in the United States of America in 2006.
Also, none of the materials in the appeals arguably supports orders in the terms sought by Mr Atieh in the appeals.
Further, in each appeal, and again making full allowance for the fact that Mr Atieh is a litigant in person and that English is his second language, the appellant's case is so deficient in form and content that there has been a complete failure by Mr Atieh to comply with pt 5 r 32 of the Rules.
For these reasons, each of the appeals were dismissed pursuant to pt 5 r 43(2)(g)(i) and, or alternatively, r 43(2)(g)(ii) of the Rules.