Atieh v The State of Western Australia - [2017] WASC 81

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: ATIEH -v- THE STATE OF WESTERN AUSTRALIA [2017] WASC 81

CORAM: LE MIERE J

HEARD: 24 FEBRUARY 2016

DELIVERED : 28 MARCH 2017

FILE NO/S: CIV 3093 of 2016

BETWEEN: MUSTAFA M ATIEH
Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant

FILE NO/S :CIV 3094 of 2016

BETWEEN :MUSTAFA M ATIEH
Plaintiff
AND
DAVID J BASHAM (PD12494)
Defendant

Catchwords:

Applications for leave to issue writ of summons - Turns on own facts

Legislation:

Corruption and Crime Commission Act 2003 (WA), s 33
Criminal Procedure Act 2004 (WA), s 80, s 83(1)
Liquor Control Act 1988 (WA), s 115(7)
The Criminal Code (WA), s 74A(2)(a), s 172(2), s 444(1)(b)

Result:

Applications dismissed

Category: B

Representation:

CIV 3093 of 2016

Counsel:

Plaintiff: In person
Defendant: No appearance

Solicitors:

Plaintiff: In person
Defendant: No appearance

CIV 3094 of 2016

Counsel:

Plaintiff: In person
Defendant: No appearance

Solicitors:

Plaintiff: In person
Defendant: No appearance

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

Nil
LE MIERE J:

Summary

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. For the reasons which follow each application will be dismissed.

Some background

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. The plaintiff applied for leave. 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.

Plaintiff files fresh originating motions

In September 2016 the plaintiff attempted to file originating motions to commence proceedings against the State of Western Australia and Sergeant Basham respectively. The Principal Registrar 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 RSC O 67 r 5. The plaintiff now seeks that leave.

CIV 3093 of 2016 - The State of Western Australia

In CIV 3093 of 2016 commenced by notice of originating motion the plaintiff seeks leave to issue a writ against the State of Western Australia.

CIV 3094 of 2016 - Sergeant Basham

In CIV 3094 of 2016 commenced by notice of originating motion filed 2 December 2016 the plaintiff sought leave to issue a writ against David J Basham, who is or was a sergeant of police at Northam police station.

Hearing on 31 January 2017

Both notices of originating motion came on for hearing before me on 31 January 2017. On that occasion I informed the plaintiff of a number of deficiencies in his 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 others such as claims of racial or religious discrimination were not within the jurisdiction of this court. I adjourned the plaintiff's applications to give him an opportunity to address these matters and put forward any affidavit evidence in support of his claims.

Further affidavits

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.
I will first refer to the plaintiff's allegations and claims in CIV 3094 of 2016 in which he wishes to bring action against the police officers.

CIV 3094 of 2016

The plaintiff's account of what happened on 27 September 2014 is summarised in a letter of 5 January 2016 to the Ombudsman:
1.On September the 27^th, 2014, (Friday) I was at my business ‑ 'Northam Kebabs' located at 80 Fitzgerald Street Northam.
2.At approximately 8pm, two men came from the 'Northam Tavern' across the road and entered my shop. They were dressed in black. I had noticed them outside the Northam Tavern with 6 ‑ 8 people previously. All in the group were dressed in black. I had never seen them before and did not know them.
3.The man who I have come to believe is 'Jason Hodgkinson', asked me immediately, 'Are you a Muslim'. I replied, 'Yes'. He immediately said 'We are gonna kill you!' Then he added, 'Go back to your own fucking country!' He continuously abused me with the 'F' word.
4.I answered back at him, 'Do not threaten me in front of my children!' He said, 'We will kill you in front of your children!'
5.He poured a drink all over the counter and pulled down a set of plastic strips from the main door of the shop designed to keep flies out.
6.My children were right next to the counter in full view of the man. He was quite aware they were there … My daughter … has completed a video statement which is included in this package.
7.I called my children in Arabic to gather their things and be prepared to get in the car. I feared for the safety of my children more than myself. I was also concerned they were being traumatized by the event. The men were large, all dressed in black and highly aggressive. I was in a semi‑state of shock at this point.
8.I asked the men out of the shop and quickly got my three children into the car.
9.The two men stepped in front of me and prevented me getting into my car. They again repeated, 'We will kill you in front of your kids!' I asked them to please let me get my kids home and then I would return so they can kill me. They said, 'No! We will kill you in front of your kids!' They repeatedly shouted abuse and told me to get out of the country.
10.I pushed past them and got into the car and locked the door. I drove fast to the police station. There were at least 10 people who witnessed these events in front of my kebab shop and the Northam Tavern.
11.At this time my daughter … was crying in the car and my two young boys were very upset.
12.After I reported the event to police I drove my children home and went immediately back to my kebab shop.
13.The man in question who we believe to be 'Jason Hodgkinson', was arrested by Northam police at approximately 9pm outside the front of the Northam Tavern. About three police cars came. A female police officer told me to go back into the shop and she took a statement from me. I think her last name was 'McAdam'. (not sure about the name) She … gave me a incident report number, but I lost it.
14.He resisted police quite stubbornly.
15.When police had moved on the crowd and arrested the man, a Northam police officer whose name I cannot remember stated that the man was facing, 'three very serious charges.' The same police officer asked me if I was happy with the police dealing with the event and I said I was - meaning I was happy he was arrested and would be charged with three very serious charges including 'threat to kill' which had many 'aggravating factors' attached to it.
16.A female police officer assured that police would also take a statement from my … daughter as to what happened. This interview never took place.
17.When I had not heard from Northam Police about interviewing my daughter I rang them and asked what was going on, and I also asked what the man had been charged with. Police appeared to have no idea what was going on and there was no 'incident report number' on the police computer system. I became very suspicious things were being covered up and I began recording my dealings with police.
18.I went to see the Northam police on twelve (12) separate occasions and was run in circles. … I was repeatedly told that no incident report existed for September 27^th, 2014. Then I was told the officer in charge was on holidays. I was told repeatedly I would be rung by various police, including senior staff, but I was never contacted.
The papers produced by the plaintiff include a police incident report to the following effect. At about 9.30 pm on 27 September 2014 police attended the Northam Tavern and the kebab shop opposite in relation to a racial vilification complaint by the kebab shop owner. The kebab shop owner identified two persons of interest and both of them were spoken to by police. Both persons of interest were instructed not to enter the Northam Tavern. The first person of interest was issued a move on order and instructed to leave the area. The second person of interest (POI) was in the process of being issued a move on order when he re‑entered the tavern. He was arrested. He resisted police. He was placed in the police vehicle where he behaved in a disorderly fashion. At the police station the POI continued to be abusive, non‑compliant and agitated. The POI was released and told to leave the police station. The POI continued to yell and abuse police. He was arrested for disorderly behaviour. A statement of material facts and brief jacket included in the papers disclose that the POI was charged and convicted of the offences of re‑entering premises after being required to leave contrary to Liquor Control Act 1988 (WA) s 115(7), obstructing police officers contrary to Criminal Code (WA) s 172(2), disorderly behaviour in a public place contrary to Criminal Code s 74A(2)(a) and wilfully and unlawfully damaging property contrary to Criminal Code s 444(1)(b). The POI was sentenced to fines of $300, $600, $600 and $750 in respect of each offence respectively.
The plaintiff complained to the Corruption and Crime Commission about Western Australia Police. The Commission assessed the complaint and pursuant to s 33 of the Corruption and Crime Commission Act 2003 (WA) referred to WA Police for investigatory or other action the allegation that Northam police officers failed to investigate a threat to kill and racial vilification against the plaintiff at his place of business.
It appears from the letter of 13 February 2015 from the Wheatbelt District Police Office District Superintendent to the plaintiff that Police Complaints investigated the plaintiff's complaint that Northam police officers failed to investigate a threat to kill and an act of vilification against the plaintiff. The letter states that all matters raised concerning the actions of police have been investigated and are considered resolved. The police informed the plaintiff that should he not be satisfied with the outcome of his complaint he could raise his concerns with the Crime and Corruption Commission.
Meanwhile, the plaintiff had complained to the Ombudsman Western Australia. By letter of 5 February 2015 the Ombudsman informed the plaintiff that it was appropriate for WA Police to investigate the plaintiff's complaint and the Ombudsman had closed its file on the plaintiff's complaint.
The plaintiff has also complained to the Australian Human Rights Commission that the police failed to properly investigate this incident. None of the plaintiff's complaints have been resolved to his satisfaction.
The indorsement of claim attached to the plaintiff's affidavit said that his claim is:
1.To Act and charge the tow [sic] offenders who attacked me on (27 of September 2014).
2.Full investigation about the falls [sic] charges on my record, and to clear my name from all the falls [sic] charges.
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 of unlawfully obtained property [sic].
D.437430/2016 failed to return an expired number plate within 3 months of the expiry of the licence.
3.To pay the amount of $1,000000.00 (1 million) dollars as compensation for all the suffering my family and myself has to go through from the time of the incident until now.
4.Interest pursuant to s32 of the Supreme Court ACT at the Rate of 6% per annum From the Lodgement day 2017 to Trial.
This court cannot charge and prosecute the two alleged offenders who the plaintiff says attacked him on 27 September 2014. The court does not have power to charge or prosecute people for criminal offences on its own motion. Under the adversarial system of justice practised in Australia the Director of Public Prosecutions institutes and prosecutes charges for indictable offences and police or authorised persons institute and prosecute charges for summary offences. The role of the court is to hear and determine the charges not to institute or prosecute them. The court does not have power to give the plaintiff leave to prosecute alleged offenders. Section 83(1) of the Criminal Procedure Act 2004 (WA) provides that a prosecution in a superior court against a person for an indictable offence may only be commenced by an authorised officer acting in the course of his or her duties. Section 80 provides that the following are authorised officers: the Attorney General, the Solicitor‑General, the State Solicitor, the DPP, a member of the DPP's staff appointed in writing by the DPP as an authorised officer and a person appointed under s 182 to prosecute indictable offences who is acting in accordance with the terms of the appointment.
In short, the plaintiff is not an authorised person and cannot commence prosecutions for indictable offences.
The court does not have power to investigate charges on the plaintiff's record or to clear his name from any false charges. The court is not an investigative body.
The plaintiff wishes to claim $1 million as compensation for all the suffering his family and himself have gone through from the time of the incident until now. The plaintiff's claim is not for assault. He does not seek to sue the people who allegedly attacked him. His claim is against Sergeant Basham and other police officers. However, neither the proposed indorsement of claim nor the plaintiff's affidavit identifies a cause of action known to the law which the plaintiff wishes to pursue against Sergeant Basham or any other police officer or evidence supporting any such cause of action.

CIV 3093 of 2016 - State of Western Australia

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.
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.

Conclusion

I accept that the plaintiff is sincere in his conviction that he is the victim of injustice. He believes that he and his family have been the victims of corruption and discrimination. However, it is not the function of the court to investigate complaints of corruption, discrimination or other human rights abuses or complaints. The function of the court is to try and determine defined causes of action known to the law. The evidence advanced by the plaintiff does not sufficiently identify or adduce evidence in support of any cause of action known to the law. Each application for leave to issue a writ must be dismissed.