IBRAHIM
[2021] WASAT 26
•3 MARCH 2021
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: VEXATIOUS PROCEEDINGS RESTRICTION ACT 2002 (WA)
CITATION: IBRAHIM [2021] WASAT 26
MEMBER: MR D AITKEN, SENIOR MEMBER
HEARD: 18 FEBRUARY 2021
DELIVERED : 3 MARCH 2021
FILE NO/S: VEX 1 of 2021
MATTER: TAREK IBRAHIM
Applicant
Catchwords:
Vexatious Proceedings Restriction Act 2002 (WA) - Applicant a vexatious litigant - Application for leave to institute proceedings in the Tribunal under Retirement Villages Act 1992 (WA) - Application dismissed
Legislation:
Retirement Villages Act 1992 (WA), s 63, s 64(1), s 64(3), s 64(3)(a)(ii), s 65
Vexatious Proceedings Restriction Act 2002 (WA), s 3, s 4, s 4(1), s 4(1)(d), s 5(1), s 6
Result:
Application for leave to commence a proceeding dismissed
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
Solicitors:
| Applicant | : | N/A |
Case(s) referred to in decision(s):
Ibrahim and City of South Perth [2021] WASAT 16
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The applicant in this proceeding, Mr Tarek Ibrahim (Mr Ibrahim), has been determined to be a vexatious litigant under the Vexatious Proceedings Restriction Act 2002 (WA) (Vexatious Proceedings Act).
Mr Ibrahim is subject to an order made pursuant to s 4(1)(d) of the Vexatious Proceedings Act on 7 August 2014, which provides that he is prohibited from instituting any proceedings, as defined in the Vexatious Proceedings Act, unless he first obtains leave of the court or tribunal, as the case requires, under s 6 of the Vexatious Proceedings Act, as was noted by the Tribunal in Ibrahim and City of South Perth [2021] WASAT 16 at [4] and [5].
This proceeding is an application by Mr Ibrahim for leave under s 6(1)(e) of the Vexatious Proceedings Act to institute a proceeding (proposed proceeding) in the Tribunal against Collier Park Retirement Village (Village) under s 64(1) of the Retirement Villages Act 1992 (WA) (Retirement Villages Act).
In the application which would commence the proposed proceeding (proposed application), Mr Ibrahim states that he would seek the following orders:
1.Deleting the date of vacating unit 2/2 Bruce Street (5/2/21).
2.a find (sic) to be made against the [Village].
3.compensation of $30,000 to be paid to me.
Attached to the proposed application is a copy of an order made by the Magistrates Court of Western Australia on 22 January 2021 (Magistrates Court Order), in a proceeding by the City of South Perth as claimant against Mr Ibrahim as defendant, which orders Mr Ibrahim to deliver up vacant possession of Unit 2/2 Bruce Street, Como, Western Australia (the Unit) to City of South Perth with effect from 5.00 pm on 5 February 2021.
The Unit is residential premises in the Village and City of South Perth is the administering body of the Village under the Retirement Villages Act.
Relevant provisions of the Vexatious Proceedings Act
Section 4(1) of the Vexatious Proceedings Act provides:
(1)If a Court is satisfied that -
(a)a person has instituted or conducted vexatious proceedings (whether before or after the commencement of this Act); or
(b)it is likely that the person will institute or conduct vexatious proceedings,
the Court may make either or both of the following orders -
(c)an order staying any proceedings, either as to the whole or part of the proceedings, that have been instituted by that person;
(d)an order prohibiting that person from instituting proceedings, or proceedings of a particular class, without the leave of a court or tribunal, as the case requires under section 6(1).
Section 5(1) of the Vexatious Proceedings Act provides:
Proceedings are not to be instituted in contravention of an order under section 4(1)(d).
Section 6 of the Vexatious Proceedings Act provides:
(1)An application for leave to institute proceedings, or proceedings of a particular class (in this section called the proceedings), that is required by an order under section 4(1)(d) is to be made-
(a)in the case of proceedings in the Supreme Court, to the Supreme Court or a judge; or
(b)in the case of proceedings in the District Court, to the District Court or a District Court judge; or
(c)in the case of proceedings before any other court, to the court; or
[(d) deleted]
(e)in the case of proceedings before a tribunal, to the tribunal,
and is to be accompanied by an affidavit in support of the application.
(2)The court or tribunal to which the application for leave is made may dismiss the application even if the applicant does not appear at a hearing of the application.
(3)The affidavit accompanying the application for leave is to list all the occasions on which the applicant has made an application for leave under subsection (1) and to disclose all facts material to the application, whether supporting or adverse to the application, that are known to the applicant.
(4)Neither the application nor the affidavit are to be served on any other person unless the court or tribunal orders under subsection (6) that they are to be served on another person.
(5)The court or tribunal is to dismiss the application for leave if it considers that -
(a)the affidavit does not disclose everything required by subsection (3) to be disclosed; or
(b)the proceedings are vexatious proceedings; or
(c)there is no prima facie ground for the proceedings.
(6)Before the court or tribunal grants an application for leave it is to -
(a)order that a copy of the application and accompanying affidavit be served on -
(i)the person against whom the proceedings are to be instituted; and
(ii)any person who made an application under section 4(2)(c) in relation to the applicant; and
(iii)the Attorney General;
and
(b)give those persons an opportunity to oppose the application for leave.
(7)Leave is not to be granted unless the court or tribunal is satisfied that -
(a)the proceedings are not vexatious proceedings; and
(b)there is a prima facie ground for the proceedings.
(8)The applicant and the persons referred to in subsection (6)(a) are to be given an opportunity to be heard at the hearing of the application for leave.
(9)At the hearing of the application for leave, the court or tribunal may receive as evidence any record of evidence given or affidavit filed in connection with an application for leave mentioned in subsection (3).
(10)The court or tribunal may dispose of the application for leave by -
(a)dismissing the application; or
(b)granting leave to institute the proceedings, subject to such conditions as the court or tribunal thinks fit.
Section 5(1) of the Vexatious Proceedings Act provides that proceedings are not to be instituted in contravention of an order under s 4(1)(d) of the Vexatious Proceedings Act.
Section 6(1)(e) of the Vexatious Proceedings Act provides that an application for leave to institute proceedings that is required by an order under s 4 of the Vexatious Proceedings Act is to be made in the case of proceedings before a tribunal to the tribunal and is to be accompanied by an affidavit in support of the application.
Section 6(3) of the Vexatious Proceedings Act provides that the affidavit accompanying the application for leave is to list all the occasions on which the applicant has made an application for leave under s 6(1) of the Vexatious Proceedings Act and to disclose all facts material to the application, whether supporting or adverse to the application, that are known to the applicant.
Section 6(4) of the Vexatious Proceedings Act provides that neither the application nor the affidavit is to be served on any other person unless the tribunal orders under s 6(6) of the Vexatious Proceedings Act that they are to be served on another person.
Section 6(5) of the Vexatious Proceedings Act provides that the tribunal is to dismiss the application for leave if it considers that the affidavit does not disclose everything required by s 6(3), or the proceedings are vexatious proceedings, or there is no prima facie ground for the proceedings.
Section 6(6) of the Vexatious Proceedings Act provides that before the tribunal grants an application for leave it must order that a copy of the application and accompanying affidavit be served firstly, on the person against whom the proceedings are to be instituted, secondly on any person who made an application under s 4 of the Vexatious Proceedings Act in relation to the applicant and thirdly on the Attorney General and give those persons an opportunity to oppose the application for leave.
Section 6(7) of the Vexatious Proceedings Act provides that leave is not to be granted unless the tribunal is satisfied that the proceedings are not vexatious proceedings and there is a prima facie ground for the proceedings.
Section 6(10) of the Vexatious Proceedings Act provides that the tribunal may dispose of the application for leave by either dismissing the application or granting leave to institute the proceedings, subject to such conditions as the tribunal thinks fit.
The expression 'institute proceedings' is defined in s 3 of the Vexatious Proceedings Act to include the making of an application which may be necessary in a particular case before proceedings can be commenced before the tribunal.
The expression 'vexatious proceedings' is defined in s 3 of the Vexatious Proceedings Act as meaning proceedings which are an abuse of process of the tribunal or instituted to harass or annoy, to cause delay or detriment, or for any other wrongful purpose or instituted or pursued without reasonable ground or conducted in a manner so as to harass or annoy, cause delay or detriment, or achieve any other wrongful purpose.
Section 6 of the Vexatious Proceedings Act provides a two step process, where applications which are clearly lacking in merit or do not meet the requirement of s 6(3) of the Vexatious Proceedings Act can be resolved ex parte, but where relevant third parties have an opportunity to oppose the application in cases that are not dismissed on an ex parte basis under s 6(5) of the Vexatious Proceedings Act.
Hearing and Mr Ibrahim's evidence
A hearing was conducted in this proceeding on 18 February 2021 (the hearing) on an ex parte basis to determine, as the first step, whether the application for leave should be dismissed under s 6(5) of the Vexatious Proceedings Act because:
•Mr Ibrahim's affidavit does not disclose everything required by s 6(3) of the Vexatious Proceedings Act; or
•the proceedings are vexatious proceedings; or
•there is no prima facie ground for the proceedings.
Mr Ibrahim has filed an affidavit sworn on 25 January 2021 in support of the proposed application.
In his affidavit, Mr Ibrahim deposes that he made an application under the 'Residential Tenancy Act' against an owner and real estate agent of a property he was renting. Mr Ibrahim does not state that that proceeding was in the Magistrates Court, but he refers to hearings before two magistrates, from which the Tribunal infers that the proceeding was in the Magistrates Court. Mr Ibrahim states that he does not remember exactly what he requested in that proceeding, but his recollection is that he requested a reduction of rent, the cost of the rent of a storage facility for a few months and a reduction of rent based on the time which items in the property were not fixed. Mr Ibrahim states that the first requested order was refused or dismissed by the Court and the other two items were to be addressed in a trial, but the matter disappeared altogether and there were no further hearings. Mr Ibrahim does not identify when that application was made, or the matter number ascribed to it by the Court, or the names of the other parties to the application, or the address of the property.
In his affidavit, Mr Ibrahim also deposes that he made an application in the Magistrates Court to recover the amount of $292 he had paid to a solicitor's office which failed to give him any legal advice in relation to a minor case claim. Mr Ibrahim states that the magistrate was quick to dismiss the case, but he has not identified when that application was made, or the matter number ascribed to it by the Court, or the name of the other party to the application.
During the hearing, the Tribunal referred to the Magistrates Court Order and made the point to Mr Ibrahim that the Tribunal does not have jurisdiction to make any order regarding the Magistrates Court Order. In response to that point Mr Ibrahim stated:
Yes, well, what I understood - that section 64 in general can prevent Collier Park Retirement Village from removing me. That the SAT can interfere into - in the decision of the retirement village to stop the operation of their order to remove me from the village.
…
there was some issues regarding noise and parking from other neighbours. And I tried to address that with the administration. That's when the administration start to turn against me.
That's exactly what section 64 is talking about. They have taken my complaint about other people's behaviour and start to penalise me[.] (ts 6, 18 February 2021)
During the hearing Mr Ibrahim also stated that he had vacated the Unit.
Consideration
Section 6(3) of the Vexatious Proceedings Act requires that the affidavit which accompanies an application for leave under s 6(1) of the Vexatious Proceedings Act must disclose all facts material to the application, whether supporting or adverse to the application, that are known to the applicant.
As the person who commenced the actions referred to in his affidavit, the information regarding the dates on which those applications were made, the matter numbers ascribed by the Magistrates Court and the names of the respondents to those applications must be within Mr Ibrahim's knowledge, but he has not disclosed those details in his affidavit.
The Tribunal, therefore, finds that Mr Ibrahim's affidavit does not meet the requirements of s 6(3) of the Vexatious Proceedings Act and, accordingly, the Tribunal must dismiss the application for leave to institute proceedings under s 6(5)(a) of the Vexatious Proceedings Act.
There is a further basis, under s 6(5)(c) of the Vexatious Proceedings Act, on which the Tribunal must dismiss this application for leave to institute the proposed proceeding, which is that there is no prima facie ground for the proposed proceeding for the following reasons.
In the grounds of the proposed application Mr Ibrahim refers to s 64(1), s 64(3) and s 65 of the Retirement Villages Act. The Tribunal will therefore consider each of these provisions and whether they might provide a prima facie ground for the proposed application.
Section 64(1) of the Retirement Villages Act provides that the Tribunal may suspend the operation of an order fixing a date by which a resident of a retirement village must vacate residential premises occupied by the resident. However, that power can only be exercised in respect of an order made by the Tribunal under s 63 of the Retirement Villages Act, not an order made by a Court. The Tribunal has no jurisdiction to deal with an order made by a Court, such as the Magistrates Court Order, nor a decision made by an administering body of a retirement village, such as the decision of the City of South Perth, to which Mr Ibrahim referred during the hearing, not to allow him to continue living in the Unit.
Section 64(3)(a)(ii) of the Retirement Villages Act provides that the Tribunal may refuse to make an order terminating a residence contract for the occupation of residential premises in a retirement village if the Tribunal is satisfied that the administering body was wholly or partly motivated to seek the termination of the residence contract by the fact that the resident had complained to a governmental authority or had taken some other action to secure or enforce his or her rights as a resident. During the hearing Mr Ibrahim stated that, because he had complained about the behaviour of other residents in the Village, City of South Perth (as the administering body) turned against him and started to penalise him (see [25] above). However, the City of South Perth is not seeking an order from the Tribunal terminating any residence contract between it and Mr Ibrahim and, therefore, Mr Ibrahim's attempted reliance on s 64(3) of the Retirement Villages Act in respect of the proposed application is misconceived.
Section 65 of the Retirement Villages Act does not give any power to the Tribunal and, therefore, cannot be a ground for a proceeding being commenced in the Tribunal.
Conclusion
For the reasons which have been given, the Tribunal will make an order that the applicant's application for leave to commence a proceeding under the Retirement Villages Act against the Village is dismissed under s 6(5) of the Vexatious Proceedings Act.
Order
The Tribunal makes the following order:
1.The applicant's application for leave to commence a proceeding under the Retirement Villages Act 1992 (WA) is dismissed under s 6(5) of the Vexatious Proceedings Restriction Act 2002 (WA).
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR D AITKEN, SENIOR MEMBER
3 MARCH 2021
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