DE ALWIS and COMMISSIONER FOR CORRECTIVE SERVICES
[2017] WASAT 17
•20 JANUARY 2017
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: EQUAL OPPORTUNITY ACT 1984 (WA)
CITATION: DE ALWIS and COMMISSIONER FOR CORRECTIVE SERVICES [2017] WASAT 17
MEMBER: JUDGE T SHARP (DEPUTY PRESIDENT)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 20 JANUARY 2017
FILE NO/S: EOA 15 of 2014
BETWEEN: VIJITHA DE ALWIS
Applicant
AND
COMMISSIONER FOR CORRECTIVE SERVICES
Respondent
Catchwords:
Equal opportunity Victimisation following a complaint of unlawful discrimination Victimisation complaint dismissed as lacking in substance Reference of complaint to Tribunal - Application to strike out proceeding Abuse of process
Legislation:
Equal Opportunity Act 1984 (WA), s 67, s 83(1), s 84, s 89, s 89(1), s 90, s 90(2), s 107, s 107(3)
State Administrative Tribunal Act 2004 (WA), s 47, s 47(1), s 60(2)
Result:
Application to strike out part of the proceeding upheld
Applicant ordered to file an amended statement of issues, facts and contentions
Summary of Tribunal's decision:
Mr De Alwis, while he was serving a prison sentence, complained to the Commissioner of Equal Opportunity that he was being unlawfully discriminated against on the ground of his impairment. Mr De Alwis also separately complained to the Commissioner that he had been victimised by the respondent for making his complaint of unlawful discrimination.
The Commissioner dismissed the victimisation complaint on the grounds that it lacked substance. The Commissioner then at the request of Mr De Alwis referred the matter to the Tribunal for an inquiry.
Once Mr De Alwis filed with the Tribunal his statement of issues, facts and contentions in respect of the victimisation complaint, the respondent made a separate application to the Tribunal for an order striking out parts of the victimisation complaint. The basis of that application was that the respondent considered that some of the allegations being made by Mr De Alwis in his statement of issues, facts and contentions were not included in his original complaint to the Commissioner. Accordingly, in the respondent's view, the Commissioner had not investigated those allegations and therefore the Tribunal did not have jurisdiction to inquire into them.
The Tribunal considered the principles to be applied in an application to strike out a proceeding. The Tribunal also considered the allegations made in the original complaint to the Commissioner and compared those with the facts subsequently alleged in the applicant's statement of issues, facts and contentions. The Tribunal found that of the allegations in the applicant's statement of issues, facts and contentions, there were only two complaints which were included in the original complaint and into which the Tribunal could therefore inquire. One was an allegation that Mr De Alwis in November and December 2013 was forced to sign out all of his property, including legal materials. The other was a general allegation of bullying and victimisation.
The other allegations in the statement of issues, facts and contentions were struck out.
In addition, the second of those two remaining complaints, the general allegation of bullying and victimisation, was considered by the Tribunal to be too vague and general and lacking in particulars so that the respondent could not properly respond to it. That part of the complaint was also struck out.
Mr De Alwis was ordered to file an amended statement of issues, facts and contentions, restricted to his complaint that in November and December 2013 he was forced to sign out all of his property, including legal materials.
Category: B
Representation:
Counsel:
Applicant: N/A
Respondent: Mr M Jenkin
Solicitors:
Applicant: N/A
Respondent: State Solicitor's Office
Case(s) referred to in decision(s):
Ambrus and Churches of Christ Homes & Community Services Incorporated [2006] WASAT 141
De Alwis and Commissioner for Corrective Services [2016] WASAT 52
Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326
Laurent and Commissioner of Police [2009] WASAT 254
Li and Edith Cowan University [2013] WASAT 113
McKenzie v McKenzie [1970] 3 All ER 1034
Sanzana and Director General, Disability Services Commission [2011] WASAT 208
Shelton v National Roads and Motorists Association Ltd [2004] FCA 1393
Summerville and Department of Education & Ors [2006] WASAT 174
Winter and Commissioner of Western Australian Police Service [2006] WASAT 87
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
During the time from 2011 until early in 2015, when he was serving a prison sentence at various prisons in Western Australia, the applicant made a number of complaints to the Commissioner for Equal Opportunity (Commissioner). His complaints were about the manner in which he was treated by the respondent while he was in prison.
Of particular relevance to this matter is the complaint made to the Commissioner on 28 March 2013, when the applicant alleged that he had been discriminated against by the respondent on the ground of his impairment (impairment complaint). The Commissioner dismissed the impairment complaint under s 89(1) of the Equal Opportunity Act 1984 (WA) (EO Act) and it was then referred to the Tribunal on 6 November 2013 under s 90(2) of the EO Act. The impairment complaint was finally determined by the Tribunal in 2016; De Alwis and Commissioner for Corrective Services [2016] WASAT 52 (De Alwis).
The applicant in the meantime, on 14 January 2014, made a further complaint to the Commissioner that, following the making of the impairment complaint to the Commissioner, he was victimised by the respondent (victimisation complaint).
Victimisation complaint
The victimisation complaint made to the Commissioner was contained in a handwritten letter from the applicant to the Commissioner bearing the date 7 January 2014. It is difficult to read in places but, with that qualification, I set out the letter in as full a form as possible, including all original emphasis:
Dear Ma'am,
I note that you have NOT received the several complaints of gross violations of the EO & HR Act and the Anti-discrimination legislation.
An extremely corrupt Asst. Supdt. Of the Prisons - Mr P M Giblett (ASPM) at the Casuarina Prison made a "blanket order" that all the incoming/outgoing mail to me be sent to him - "for his approval"
This was unprecedented. Unusual. Unwarranted. I was targetted [sic]. I was singled out.
It was illegal. It was a gross violation of the provisions of The Public Interest Disclosure Act.
It was also a violation of the Prisons Act Regulations and the relevant Policy Directives (PDs).
Mr Gillett put my whole life under a microscope - to my detriment.
It was criminal conduct - an attempt to perverse the course of justice, a conspiracy to defeat justice.
Destroying evidence
Public Officer refusing to follow the law, refusing to obey lawful orders etc. all punishable under s132, 135, 143 and 176 (if my memory serves me right) of the Criminal Code Act 1913.
He is also liable under the Corruption & Crime Act.
His order - covered the yellow envelopes mail too!
It's a violation of Prisons Act and PD 36.
Suffice to say - that was how my complaints to you were intercepted and destroyed (put thro' his paper shredder!)
He was a law unto himself!
His position was made redundant. He is not there any longer. However, he transferred me to Hakea Prison before he ended his "colourful career" in the Prisons in WA.
At Hakea - too, Mr Luke Thatcher behaves in a similar manner.
I'm not certain whether you'd receive this too!
Please send me copies of all the complaints, letters I've sent you, and your replies etc.
ALL these were removed from me by Mr Giblett. He forced me to sign a "request" to sign out all of my property in the Casuarina Prison - including all the files on all my cases pending in court! THAT was his modus operandi.
Mr Thatcher and his staff uses the same modus operandi!
Mr Thatcher sabotaged even my Family Court cases!
Please acknowledge the receipt of this ASAP. I'd be obliged if you'd please send me a copy of this letter too.
I'm NOT allowed to go to the library. I'm not given a laptop. (I know at least 2 other fellow prisoners who have been given laptops! They are White Caucasian! And Australian. I'm Black, Asian! I do not have 1/3 of the property/legal [indistinct] they have with them in their cells!
I'm confined to a tiny [indistinct] cell with no table, only 1 shelf on the wall and no hot water!
It is designed and crafted to deny me the "space" to have my files!
I've to share this tiny cell - obviously meant for only 1 prisoner with little or no property - with another!
I'm writing this with the aid of the little light from the TV as there's only 1 light in the cell - no bed lamp - and my cellmate is sleeping! (It's 11.00pm).
The brutality with which this REPRISAL - as defined by the Dictionary section (s3) of the Public Interest Discrimination Act - is unprecedented, unsurpassed- simply unbelievable!
Are we in Hitler's Germany? Or Idi Amin's Uganda? Or Sierra Leone, Pol Pot's Cambodia? Or Iraq or Afghanistan? Is this [indistinct]? Or [indistinct] Guantanamo Bay Prison? Am I a Terrorism suspect? I shudder to think WHAT the lot of the lesser mortal is!
Upon receipt of all the material - I'll rewrite all the various complaints on the violations of the anti-discrimination law by the DCS and send you.
Hopefully, they'll not distort the facts and write false reports on these to you and deceive you and mislead you to dismiss my complaint.
Fortunately, the provision to refer it to the SAT is there!
You'll be an important witness for me.
I was locked up and harassed - and assaulted, injured and bullied by Mr Giblett and his men and women - to prevent me from contacting you and from prosecuting my complaints (appeals & cases!) effectively, efficiently or in a timely manner!
No self- respecting Australian must allow this to be done allow this to happen in this great country that gave me asylum 30yrs ago!
We profess to have a well evolved Rule of law here!
Rule of law is the corner-stone of democracy!
Please copy this to:
1.The hon. Minister for Corrective Svcs.
2.The Commissioner DCS.
3Public Interest Disclosure Officer.
4.Public Sector Management Commissioner.
I'm NOT allowed to go to the library! Hence this request. We prisoners can only ph/copy - at the library!
Mr Giblett illegally intercepted and destroyed even my court documents mailed to the Supreme Court and the Court of Appeal!
You can imagine what it is!
I can be contacted at the Hakea Prison.
In haste.
Yours sincerely
V.G. De Alwis.
Commissioner's investigation and decision
Upon receipt of the complaint, one of the Commissioner's officers wrote to the applicant on 5 February 2014 in response to the allegations made by the applicant in his letter of complaint. The applicant was informed that the Commissioner considered that 'there is insufficient information regarding your allegations to commence an investigation into your concerns'. The applicant was asked to provide further detail by 24 February 2014 and was reminded that his complaint could be dismissed as being misconceived or lacking in substance if that information was not provided.
On 12 March 2014, the Commissioner wrote again to the applicant. It can be inferred from the Commissioner's letter that the applicant did not provide the further details previously requested. In that letter, the Commissioner dismissed the complaint as lacking in substance.
On 23 March 2014, the applicant wrote back to the Commissioner. Again, his letter is handwritten and parts of it are difficult to read. I also set out that letter in as full a form as possible, again including all original emphasis:
Dear Ma'am
Complaint by V.G. De Alwis against the DCS
I acknowledge the receipt of your letter recently - informing me of your decision not to take any action and to refer the same to the SAT if I request.
Shortly after I received it, I wrote a reply.
The letter of reply by you, my reply and the whole file was - once again - separated from me at about 1.35pm in the afternoon of Thursday the 20th March 2014!
Please refer my relevant complaint to the State Administrative Tribunal and inform.
Please send me a copy of my complaint & all the correspondence by me, a copy of all the correspondence by the DCS and their response/report to my complaint and a copy of your report etc.
I'm locked up "for an Animal Experiment - details of which are all too hazy!"
I was asked to go to the Infirmary. The moment I was there Mr Wagner SO and Mr Garger Officer, locked me up incommunicado and severely secluded.
I saw a sheet on the door of my "cruel cell". A copy has been denied despite many requests!
I'll write further once I get access to my file.
This is being done to sabotage the Mediation to be held on Thursday next in the matter pending in the SAT re my previous complaint on Impairment Discrimination by Commissr DCS and Mr Gallagher and Ms [indistinct].
Please inform the SAT and Mr Jenkin, the Snr Asst. Solicitor, State Solicitor's Office.
I don't know what more they'll do!
I'm being treated very very cruelly and inhumanely!
I'm in a punishment cell in the Infirmary in the Casuarina Prison (for no offence - wrongdoing committed!)
Yours sincerely
V.G De Alwis
At the request of the applicant, the Commissioner referred the complaint to the Tribunal pursuant to s 90(2) of the EO Act on 24 April 2014.
Proceedings in the Tribunal
The time which has elapsed since the applicant first made the victimisation complaint to the Commissioner is extensive. However, this is consistent with other proceedings in which the applicant has been involved, both in this Tribunal and in the courts.
A brief outline of the delays and interim applications made in this matter can be found in De Alwis at [6] [55] (this matter and the impairment discrimination matter having been largely programmed concurrently).
Although the applicant appeared in person at various stages in this proceeding, he was assisted by his daughter. The applicant's daughter is a legal practitioner but stated, as she did in the impairment complaint, that she did not appear in that capacity before the Tribunal, but rather as support for her father. She explained again that her reasons for this are she was inexperienced in this area of law and that her evidence may be relevant to the determination of this dispute. She continued to claim that she was appearing in the limited role of a McKenzie friend; McKenzie v McKenzie [1970] 3 All ER 1034.
Even though her involvement went beyond the role of a McKenzie friend, and over objection from the respondent on this point, I allowed the applicant's daughter to assist her father in this proceeding.
Due to the applicant's ill health, the applicant's daughter began to appear at directions hearings in his absence. However, she informed the Tribunal that all of the applicant's submissions were his own and that she merely typed and signed (under a power of attorney) those submissions on his behalf.
In early 2016, the parties agreed that this matter should be adjourned pending the outcome of the impairment discrimination matter.
Following the delivery of the decision in De Alwis in May 2016, the matter proceeded to a directions hearing which occurred on 20 July 2016. The purpose of this hearing was to ascertain whether the applicant, in light of the decision in De Alwis, wished to proceed with the victimisation complaint. The applicant at that hearing (through his daughter) informed the Tribunal that he did in fact wish to proceed and programming orders were made for the filing by both parties of statements of issues, facts and contentions.
On 17 August 2016, the applicant filed his statement of issues, facts and contentions and a bundle of documents (which included his witness statement and a witness statement from his daughter).
Application by the respondent to strike out the victimisation complaint
On 30 August 2016, the respondent informed the Tribunal that it intended to apply for an order to strike out the applicant's statement of issues, facts and contentions and dismiss the proceeding. At a subsequent directions hearing on 14 September 2016, the Tribunal ordered the filing of submissions in relation to the strike out application.
The respondent's submissions in support of its strike out application were filed on 28 September 2016, at which point it became apparent that the respondent was in fact seeking to strike out only part of the applicant's claim.
The applicant's responsive submissions were filed on 28 October 2016.
The Tribunal with the agreement of both parties decided that the respondent's strike out application should be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
This is the Tribunal's decision on that application and the Tribunal's reasons.
Legislation
The relevant legislative provisions in this matter are as follows.
EO Act
67. Victimisation
(1)It is unlawful for a person (in this section referred to as the victimiser) to subject, or threaten to subject, another person (in this subsection referred to as the person victimised) to any detriment on the ground that the person victimised
(a)has made, or proposes to make, a complaint under this Act; or
(b)has brought, or proposes to bring, proceedings against the victimiser or any other person under this Act; or
(c)has furnished, or proposes to furnish, any information, or has produced or proposes to produce, any documents to a person exercising or performing any function under this Act; or
(d)has appeared, or proposes to appear, as a witness before the Tribunal in a proceeding commenced under this Act; or
(e)has reasonably asserted, or proposes to assert, any rights of the person victimised or the rights of any other person under this Act; or
(f)has made an allegation that a person has done an act that is unlawful by reason of a provision of Part II, IIAA, IIA, IIB, III, IV, IVA, IVB or IVC,
or on the ground that the victimiser believes that the person victimised has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (f).
(2)Subsection (1)(f) does not apply if it is proved that the allegation was false and was not made in good faith.
(3)Subject to subsection (2), the application or continued application of subsection (1) in a particular case shall not be affected by
(a)the failure of the person victimised to do any proposed act or thing referred to in any of the paragraphs of subsection (1); or
(b)the withdrawal, failure to pursue, or determination of any complaint, proceeding or allegation under this Act.
…
83.Making complaints to Commissioner
(1)A complaint alleging that a person has committed a contravention of this Act, other than a contravention in respect of which a specific penalty is imposed, may be lodged in writing with the Commissioner by
(a)a person on the person's own behalf or on the person's own behalf and the behalf of other persons; or
(b)2 or more persons on their own behalf or on behalf of themselves and other persons; or
(c)a trade union of which a person or persons aggrieved by the alleged contravention is a member or are members on behalf of that person or those persons.
…
84.Investigation of complaints by Commissioner
The Commissioner shall investigate each complaint lodged with the Commissioner under section 83.
…
89. Commissioner may dismiss certain complaints
(1)Where, at any stage of an investigation, the Commissioner is satisfied that a complaint is frivolous, vexatious, misconceived, lacking in substance or relates to an act that is not unlawful by reason of a provision of this Act, the Commissioner may, by notice in writing addressed to the complainant, dismiss the complaint.
(2)The Commissioner shall, in a notice under subsection (1), advise the complainant of
(a) the reason for dismissing the complaint; and
(b) the rights of the complainant under section 90.
90. Commissioner to refer complaint to Tribunal if complainant so requires
(1)Where the Commissioner has given a complainant a notice under section 89, the complainant may, within 21 days after the receipt of that notice, by notice in writing served on the Commissioner, require the Commissioner to refer the complaint to the Tribunal.
(2)On receipt of a notice under subsection (1), the Commissioner shall refer the complaint to the Tribunal together with a report relating to the investigation made by the Commissioner into the complaint.
...
107. Jurisdiction of Tribunal
…
(3)Subject to subsection (3a), the Tribunal shall hold an inquiry into each complaint or matter referred to it under section 90(2), 93(1) or subsection (1).
…
SAT Act
47. Frivolous etc. proceedings, dismissal of etc.
(1)This section applies if the Tribunal believes that a proceeding
(a)is frivolous, vexatious, misconceived or lacking in substance; or
(b)is being used for an improper purpose; or
(c)is otherwise an abuse of process.
(2)If this section applies, the Tribunal may order that the proceeding be dismissed or struck out and make any appropriate orders.
(3)The Tribunal's powers to act under subsection (2) are exercisable only by a legally qualified member.
(4)The Tribunal may act under subsection (2) on the application of a party or on its own initiative.
The strike out application principles to be applied
In considering an application under s 47 of the SAT Act, the Tribunal should assume that all of the factual assertions made by the applicant would be established at the final hearing; Li and Edith Cowan University [2013] WASAT 113 at [35].
The principles to be applied by the Tribunal in order to dismiss or strike out a proceeding prior to the final hearing on the basis that it is misconceived or lacking in substance are analogous to the principles applied by courts to summarily dismiss a proceeding. It must be demonstrated that '[the proceeding] is so obviously untenable that it cannot possibly succeed or is manifestly groundless or … it discloses a case which the [Tribunal] is satisfied cannot succeed'; Ambrus and Churches of Christ Homes & Community Services Incorporated [2006] WASAT 141 at [8].
The term 'misconceived' connotes a misunderstanding of legal principle, while the term 'lacking in substance' connotes an untenable proposition of law or fact; Laurent and Commissioner of Police [2009] WASAT 254 (Laurent) at [23].
The expression 'abuse of process' has an acquired legal meaning and is used in s 47 of the SAT Act in that sense; Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326 at [34].
Section 47 of the SAT Act so far as it relates to the power of the Tribunal to strike out a proceeding is capable of application to both a proceeding as whole and particular parts of a proceeding; Laurent at [25] [28].
The documents on which the Tribunal is relying
Although there have been numerous interim applications and supporting affidavits filed in this matter, for clarity, the documents on which I am relying to determine the strike out application are as follows:
•the referral from the Commissioner dated 29 April 2014, together with the report of the Commissioner's investigation which accompanied the referral;
•witness statements of the applicant and his daughter both dated 17 August 2016;
•the applicant's statement of issues, facts and contentions dated 17 August 2016 in respect of the victimisation complaint;
•the respondent's submissions on the strike out application dated 28 September 2016; and
•the applicant's responsive submissions dated 28 October 2016.
The factual assertions of the applicant
In his statement of issues, facts and contentions, the applicant says that he was in the respondent's care from 11 April 2011 to at least 4 January 2015 as a prisoner at Casuarina Prison, Hakea Prison and Acacia Prison.
At the relevant time, the applicant was almost 70 years old with a number of health issues including diabetes, heart disease, arthritis and terminal bowel cancer.
The applicant made the impairment complaint in March 2013.
Unsurprisingly, none of these facts are disputed by the respondent.
The applicant continues by saying that, from that time onwards, he was 'harassed, bullied and ordered not to file any legal proceedings'; applicant's statement of issues, facts and contentions at paragraph 6.
The applicant then goes on to specify the conduct of the respondent that gives rise to that allegation and it is at this point that I am unclear as to exactly what facts the applicant is asserting. From the applicant's statement of issues, facts and contentions, when read with the witness statements from the applicant and from his daughter, I had understood the applicant's factual assertions to be as follows:
a)On 14 June 2013, the applicant sought and was refused access to the library and subsequently placed in isolation.
b)On or about 26 June 2013, the applicant was told by Assistant Superintendent Giblett that he had to clear his cell of all legal materials and papers and was placed in isolation when he failed to do so.
c)Following an order made by the Tribunal (constituted by then Senior Member Taylor) that the applicant be provided with his cell placement summary, the applicant was locked in a maximum security unit in Casuarina Prison, transferred to Hakea Prison and placed in a cell with smoking prisoners, before being placed in a cell with a dangerous offender. The applicant was often locked in isolation.
d)Some prison officers broke his files and he was required to carry papers in plastic bags. The applicant also received 'regular threats in attempts to preclude [him] from proceeding with any complaints'. The applicant was also handcuffed 'very aggressively and painfully'.
e)The applicant was 'paraded' through the prison by a group of officers who 'called out that this was what would happen to any prisoner daring to file a complaint or seek legal assistance'.
f)On 8 August 2013, the applicant's daughter was prohibited from assisting him.
g)In November and December 2013, the applicant was forced to sign out all of his property, including legal materials.
h)On 8 January 2014, a 'blanket order' was issued by Assistant Superintendent Giblett that the applicant was not permitted to receive legal materials or assistance.
i)All the applicant's legal files and materials were damaged or destroyed.
j)The applicant was often physically and verbally abused by prison officers, and harassed by Assistant Superintendent Giblett.
k)The applicant was generally teased, bullied, threatened and harassed for commencing legal action.
This is also the respondent's understanding of what facts are being asserted by the applicant (respondent's submissions on the strike out application at paragraph 16) and the respondent says that the Tribunal should assume these facts for the purpose of the strike out application.
While the applicant does not expressly contest the respondent's version of the asserted facts, in his responsive submissions dated 28 October 2016 at paragraph 23, the applicant sets out what I am taking to be the applicant's factual assertions in the victimisation complaint. I am therefore proceeding, for the purpose of the strike out application, on the basis that these are the facts that would be established at the final hearing of the victimisation complaint:
a)After the applicant commenced proceedings before the Tribunal in March 2013 (the impairment complaint) the violence and aggression towards him by the respondent escalated.
b)The applicant's files were broken, papers ripped and placed in plastic bags.
c)The applicant was placed in isolation for seeking to go to the library and having a messy cell when he was preparing for proceedings before the Tribunal.
d)Prison officers 'that were involved in proceedings EOA 51/2013 [the impairment complaint] were also subsequently provided unfavourable/dishonest evidence in civil proceedings and displayed malice towards the applicant in evidentiary material filed'.
e)The applicant's daughter's official visitor status was unreasonably revoked, contrary to the law and she was not permitted to assist him with legal matters.
f)The applicant was locked in unit 1 at Casuarina Prison for an extended period and threatened, bullied and harassed.
g)In November and December 2013, the applicant was forced to sign out all his legal materials and property.
h)The applicant was not permitted to send or receive legal materials.
Grounds for the strike out application by the respondent and orders sought
The basis of the respondent's strike out application is, substantially, that the applicant's claims, as revealed by his statement of issues, facts and contentions and his witness statement and that of his daughter, include allegations that were not part of the victimisation complaint to the Commissioner. The respondent says that the only allegations into which the Tribunal has jurisdiction to inquire are the allegations made by the applicant in his original complaint.
The respondent considers that the original complaint from the applicant to the Commissioner discloses the following factual allegations:
a)Mr P M Giblett, Assistant Superintendent of Prisons at Casuarina Prison, made a 'blanket order' that all incoming and outgoing mail was to be sent to him for his approval. The applicant was 'targeted' and 'singled out' by this conduct.
b)This conduct of Mr Giblett was also illegal and constituted a 'violation' of various legislation and policies.
c)The conduct of Mr Giblett also constituted criminal conduct (examples of which are given).
d)Mr Giblett is also liable under the 'Corruption & Crime Act'.
e)Since the applicant's transfer to Hakea Prison, Mr Luke Thatcher has behaved in a similar manner to Mr Giblett.
f)Mr Giblett forced the applicant to sign a 'request' to sign out all of his property at Casuarina Prison (including all the files on the applicant's cases pending in court). Mr Thatcher and his staff use the same 'modus operandi'.
g)The applicant is not allowed to go to the library and has not been given a laptop, whereas two other prisoners, who are white, Caucasian and Australian, have been given laptops. The applicant also has less than one third of the property/legal material that these prisoners have in their cells.
h)The conditions in the applicant's cell are uncomfortable. This has been 'designed and crafted' to deny the applicant the space to have his files.
i)This 'reprisal' is 'unprecedented', 'unsurpassable' and 'simply unbelievable'.
j)The applicant was 'locked up and harassed and assaulted, injured and bullied by Mr Giblett and his men and women to prevent [the applicant] from contacting [the Commissioner] and from prosecuting [his] complaints (appeals & cases) effectively, efficiently or in a timely manner'.
k)Mr Giblett 'illegally intercepted and destroyed' his court documents mailed to the Supreme Court and the Court of Appeal.
The respondent compares this with what it considers is now being alleged by the applicant and concludes that there is only one allegation that the Tribunal should inquire into, namely the allegation that, in November and December 2013, the applicant was forced to sign out all of his property, including legal materials.
The respondent accepts that the general allegation in the applicant's statement that the applicant was bullied and harassed was also included in the applicant's original complaint to the Commissioner. However, the respondent considers that this should be struck out on the grounds that it is too vague and general and lacks particulars so that the respondent is unable to properly respond to it. As such, the allegation is embarrassing and so constitutes an abuse of process.
The respondent seeks orders that the parties file amended statements of issues, facts and contentions, which specifically relate and are restricted to the allegation that in November and December 2013, the applicant was forced to sign out all of his property, including legal materials.
The applicant's response to the strike out application
The applicant maintains that the Tribunal has jurisdiction to inquire into the entirety of his claim, but also seeks an opportunity to file an amended statement of issues, facts and contention 'as necessary'.
The applicant accepts that in both Sanzana and Director General, Disability Services Commission [2011] WASAT 208 (Sanzana) and Winter and Commissioner of Western Australian Police Service [2006] WASAT 87, the Tribunal found that it only has jurisdiction over matters referred to it by the Commissioner. However, the applicant says that both of these cases can be distinguished from the present case as they relate to circumstances where the original complaint did not contain any reference to the relevant facts. In this case, the applicant says that his original complaint raised the matter of his victimisation sufficiently, in light of the circumstances and the resources available to him. The applicant says that his witness statement and statement of issues, facts and contentions simply provide context to his original claim.
However, if the Tribunal considers that the applicant failed to particularise his complaints to the Commissioner, then this is related to the circumstances of his incarceration and, in particular, to the respondent's successful attempts to victimise him and preclude judicial review. He says that in the present matter he has not made multiple applications for review of the issue of his victimisation, despite the fact that it was continuing.
The applicant considers that his subsequent documentation detailing the complaint is comprehensive and outlines his victimisation in detail, and that if further detail of specific issues for the purposes of this application is necessary, then the applicant should be afforded the opportunity to provide such particulars.
The applicant points out that, if the Tribunal finds that it does not have jurisdiction to determine part of the applicant's claim on the basis that this is insufficiently detailed in his original complaint, then this would render the matter incapable of further review in circumstances where, he says, there is prima facie evidence of victimisation.
The applicant further says that the respondent has failed to particularise the specific objections to his legal application and has not previously afforded him an opportunity to amend his legal application as necessary.
In relation to the respondent's claim that the applicant's application is lacking in substance, he says that it is unclear which proposition of law or fact in this matter is untenable, particularly as the respondent has accepted a part of the application. He reiterates that his evidence prima facie establishes his claim.
The applicant notes the respondent's claim that the application is embarrassing or an abuse of process. The applicant says that a definition of an embarrassing pleading can be found in a decision which I understand is Shelton v National Roads and Motorists Association Ltd [2004] FCA 1393 (Shelton). An embarrassing pleading includes 'a pleading that is susceptible to various meanings, or contains inconsistent allegations, or in which alternatives are confusingly intermixed, or in which irrelevant allegations are made that tend to increase expense'; Shelton at [18]. The applicant says that his statement of issues, facts and contentions does not fit this description. The applicant makes the following points:
a)The applicant is not seeking to relitigate matters previously determined.
b)The applicant's claim is a series of facts he seeks to rely on, and is not formulated as legal pleadings.
c)Certain facts are presented to contextualise the applicant's claim of victimisation.
d)No 'improper purpose' on the part of the applicant has been identified by the respondent. The applicant's cause of action is genuine, in that he is sincerely seeking review of his victimisation. He is not engaged in this matter for pecuniary benefit.
In relation to the respondent's claim that the applicant's general allegation of harassment and bullying is nonspecific, he contends that his original 11 page letter to the Commissioner in January 2014 was detailed and his complaints were subsequently particularised in August 2016.
Finally, the applicant says that any application to dismiss a proceeding should be approached with caution. The applicant says that it is not possible to say without doubt that there is no question to be tried or that there is no reasonable prospect of success and that it is inappropriate to dismiss even a part of this matter because of the following circumstances:
a)Although both the applicant and his daughter have legal training, they are unfamiliar with this jurisdiction.
b)The applicant is 70 years old with a number of health conditions, which mean that he is clearly unable to precisely set out his claim in writing.
c)The applicant's daughter terminated her employment as a family lawyer to assist the applicant with this case.
d)The application was made under restrictive conditions, while the applicant was in confinement.
e)Both the applicant and his daughter are functioning under extreme difficulty with limited resources.
f)Accordingly, the standard principles that apply to selfrepresented litigants should, the applicant says, apply in this case.
Tribunal's findings
Can the Tribunal under s 107 of the EO Act hold an inquiry into all of the allegations contained in the applicant's statement?
In summary, the EO Act relevantly provides that a complaint about a contravention of the EO Act is to be lodged with the Commissioner; s 83(1). The Commissioner must then investigate that complaint; s 84. If the Commissioner dismisses the complaint under s 89, the complainant may require the Commissioner to refer the complaint to the Tribunal and the Commissioner must do so; s 90. The Tribunal must then hold an inquiry into that complaint; s 107(3).
As I noted in De Alwis at [73]:
The jurisdiction of the Tribunal, which is created by s 107 of the EO Act, derives from referrals by the Commissioner or referrals by the relevant Minister. The Tribunal's jurisdiction is limited to the complaint referred to it by the Commissioner and does not extend to allegations that are not in the original complaint lodged with the Commissioner; Summerville and Department of Education & Ors [2006] WASAT 174 at [11] [12].
The Tribunal held in Summerville and Department of Education & Ors [2006] WASAT 174 at [12]:
While [the issue of whether the applicant has raised issues before the Tribunal which go beyond the complaint determined by the Commissioner for Equal Opportunity] is a preliminary point, it is an important one as the Tribunal in equal opportunity matters does not have a roving commission to consider fresh complaints. If a person has fresh complaints, they must be referred to the Commissioner and dealt with in accordance with the requirements of the Equal Opportunity Act 1984.
I see no reason to depart from this view.
Clearly it is a statutory function of the Commissioner under the EO Act to receive and investigate complaints at first instance. For the Tribunal to investigate a complaint which has not yet been considered by the Commissioner would be to usurp that statutory function. In my view, the Tribunal has no power to hold an inquiry in respect of any such a complaint.
Further, after the Commissioner has referred a complaint to the Tribunal and the complainant during the course of the subsequent proceeding then seeks to include new factual allegations, then obviously the Commissioner could not have investigated those allegations to any extent. Again, in my view, the Tribunal's jurisdiction is not enlivened in respect of those allegations. Any factual allegations not included in the complaint to the Commission cannot be considered by the Tribunal: see Sanzana at [20].
It is therefore necessary to consider the allegations contained in the original complaint to the Commissioner in the light of the factual allegations which the applicant is now making.
I have already set out in full the applicant's original complaint in his letter to the Commissioner dated 7 January 2014. I agree with and adopt the respondent's summary of the allegations contained in that complaint as set out earlier in these reasons at [38].
Comparing those allegations with the facts now asserted by the applicant set out at [36], I also agree with the respondent's conclusion that there are only two allegations now being made against the respondent which were contained in the initial complaint to the Commissioner. Those allegations are that:
a)in November and December 2013 the applicant was forced to sign out all of his property, including legal materials; and
b)the applicant was harassed and bullied (or similar) by Assistant Superintendent Giblett and other prison officers.
The remaining allegations set out or referred to in the applicant's statement of issues, facts and contentions are not part of what was originally complained about and therefore are beyond the Tribunal's jurisdiction to inquire into. I consider that they should be struck out under s 47 of the SAT Act as an abuse of process.
Should the allegation of bullying and harassment also be struck out as an abuse of process?
I now turn to the respondent's submission that the applicant's allegation that he was harassed and bullied (or similar) by Assistant Superintendent Giblett and other prison officers should also be struck out because it is embarrassing and so constitutes an abuse of process.
The respondent submits that the applicant's letter to the Commission dated 7 January 2014, which sets out his general allegation of bullying and harassment, is vague and general and lacking in particulars. It does not sufficiently particularise his complaint of general harassment and bullying and, if this matter were to proceed to final hearing, the respondent would be prejudiced.
The applicant on this point repeats his contention that the allegation of general bullying is sufficiently particularised in his original complaint to the Commissioner. However, he says that, even if his general allegation of harassment and bullying is not sufficiently specific, this does not constitute an abuse of process.
I disagree with the applicant that the general allegation of bullying is sufficiently particularised in the applicant's original complaint to the Commissioner.
I note that the Commissioner shares this view. As I have already mentioned, when the Commissioner received the applicant's complaint, which was on or around 14 January 2014, one of her conciliation officers wrote back to the applicant informing him that 'there is insufficient information [in your complaint] regarding your allegations to commence an investigation into your concerns'. She asked the applicant to identify the incidents of victimisation in chronological order (key dates, what happened, when and where did it happen including which prison) and explain why the applicant believes that it is victimisation. The Commissioner cautioned the applicant that unless he provided that information, the Commissioner may dismiss his complaint under s 89 of the EO Act.
The Commissioner requested that the applicant provide that information in writing by 24 February 2014.
The Commissioner then wrote again to the applicant on 12 March 2014 and, as I have already said, it can be inferred from the terms of that letter that the applicant did not provide that information. Had the applicant done so, the situation in which he finds himself now would not have arisen.
The Commissioner said in that letter that she had considered all the material regarding the applicant's complaint of victimisation and after considering it she had decided that the complaint of victimisation was lacking in substance and dismissed it. She asked whether the applicant wished the matter to be referred to the Tribunal under s 90 of the EO Act and it was only in response to that letter, on 23 March 2014, that the applicant wrote back to the Commissioner.
That might have been a further opportunity for the applicant to provide the details requested by the Commissioner, if necessary by way of a new complaint, given that the original complaint had by this time been dismissed. However, the applicant again chose not to do so. Instead, he requested the Commissioner to refer to the matter to the Tribunal. He made mention of the difficulties he had been experiencing in contacting the Commissioner, but only in the context of how he had tried to exercise his right to have the matter referred to the Tribunal, not in the context of his failure to provide the further information requested by the Commissioner.
I have considered whether, in fairness to the applicant, I should allow the applicant to amend his statement of issues, facts and contentions to include further details of the bullying and victimisation. However, I have decided not to do so. To allow the applicant to amend his statement of issues, facts and contentions in this way and at this point in the proceeding would be tantamount to allowing the applicant to expand his original complaint to the Commissioner. As I have already concluded, the detailed allegations of bullying and harassment would not have been investigated by the Commissioner and therefore the Tribunal would have no jurisdiction to hear them.
I have therefore determined that the general allegation of bullying and victimisation should also be struck out on the basis that it is embarrassing and constitutes an abuse of process in that the respondent is unable to respond properly to it.
Conclusion
I have considered whether it is possible to strike out the objectionable parts of the applicant's statement of issues, facts and contentions and I have concluded that it is not. Accordingly, the Tribunal's orders will be that the applicant's statement of issues, facts and contentions is struck out in its entirety and leave be given to the applicant to file an amended statement of issues, facts and contentions limited to the allegation that the applicant in November and December 2013 was forced to sign out all of his property, including legal materials.
Orders
1.Pursuant to s 47(1) of the State Administrative Tribunal Act 2004 (WA), the applicant's statement of issues, facts and contentions filed on 17 August 2016 is struck out as an abuse of process.
2.Within 28 days, the applicant is to file and serve an amended statement of issues, facts and contentions, limited to his allegation that in November and December 2013 the applicant was forced to sign out all of his property, including legal materials, failing which the proceeding will stand dismissed.
3.Within 28 days of service of the applicant's amended statement of issues, facts and contentions, the respondent is to file and serve a statement of issues facts and contentions which it says arise in this proceeding.
4.The proceeding is adjourned to a further directions hearing at 10 am on 20 March 2017 in order to program the matter to a final hearing.
I certify that this and the preceding [73] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE T SHARP, DEPUTY PRESIDENT
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