IBRAHIM and CITY OF SOUTH PERTH - [2021] WASAT 16

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: EQUAL OPPORTUNITY ACT 1984 (WA)
CITATION:   IBRAHIM and CITY OF SOUTH PERTH [2021] WASAT 16
MEMBER:   JUDGE K GLANCY, DEPUTY PRESIDENT
HEARD:   20 JANUARY 2021
DELIVERED          :   10 FEBRUARY 2021
FILE NO/S:   EOA 17 of 2020
BETWEEN:   TAREK IBRAHIM
Applicant
AND
CITY OF SOUTH PERTH
Respondent

Catchwords:

Complaint referred to Tribunal by Equal Opportunity Commissioner pursuant to s 90(2) Equal Opportunity Act 1984 (WA); Complainant a vexatious litigant - Application for leave to institute proceedings in Tribunal made after referral of complaint by Equal Opportunity Commissioner - Jurisdiction of Tribunal in relation to the substantive application

Legislation:

Equal Opportunity Act 1984 (WA), s 89, s 90, s 90(1), s 90(2), s 93, s 93(1), s 107(1), s 107(3), s 107(3)(a), s 108
Interpretation Act 1984 (WA), s 18
Retirement Villages Act 1992 (WA)
State Administrative Tribunal Act 2004 (WA), s 3(a), s 3(1), s 7, s 9, s 13
Vexatious Proceedings Restriction Act 2002 (WA), s 3, s 3(b), s 4, s 4(1), s 4(1)(d), s 5, s 5(1), s 5(2), s 6

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	R Marando

Solicitors:

Applicant	:	In Person
Respondent	:	Momentum Legal

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

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Ashby v Commonwealth (No 4) [2012] FCA 1411
Attorney General v Michael & Anor [2005] WASC 203
Caratti v Mammoth Investments Pty Ltd [2016] WASCA 84; (2016) 50 WAR 84
De Al Wis and Commissioner for Corrective Service [2017] WASAT 17
Director General of Department of Transport v McKenzie [2016] WASCA 147; (2006) 77 MVR 306 [
Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75
Kitson v Medhealth Pty Ltd (No 3) (Human Rights) [2017] VCAT 1505
Medhealth Pty Ltd v Kitson (Review and Regulation) [2018] VCAT 553
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Re the Governor of Western Australia Ex Parte Keating [2007] WASC 323
Sanzana and Director General, Disability Services Commission [2011] WASAT 208
Stokes (by a tutor) v McCourt [2013] NSWSC 1014
Summerville and Department of Education & Ors [2006] WASAT 174
Winter and Commissioner of Police [2006] WASAT 87

REASONS FOR DECISION OF THE TRIBUNAL:

Background and summary of conclusions

The Equal Opportunity Commissioner (Commissioner) accepted, but ultimately dismissed, Mr Ibrahim's complaint against the City of South Perth alleging discrimination on the grounds of race in the area of accommodation. He dismissed the application on the grounds that it was lacking in substance. That complaint was made by Mr Ibrahim on 22 June 2019. Before dismissing the complaint[1] the Commissioner had sought from Mr Ibrahim further information that may have substantiated it.[2] Mr Ibrahim declined to provide it and responded to the Commissioner's request saying that he was too busy to provide the information sought and that the Commissioner should just dismiss the application because he would 'take it to SAT'.[3]
[1] In accordance with s 89 of the Equal Opportunity Act 1984 (WA).
[2] Letter from Commissioner dated 8 September 2020.
[3] Email from Mr Ibrahim to the Commissioner dated 8 September 2020.
On 8 September 2020 Mr Ibrahim was notified of the Commissioner's decision to dismiss the application and informed that he could, upon the giving of a written notice to the Commissioner within 21 days, require the Commissioner to refer the complaint to the Tribunal.
On 18 September 2020 Mr Ibrahim gave the Commissioner written notice that he required the Commissioner to refer the complaint to the Tribunal and, on 22 September 2020, the Commissioner referred the matter to the Tribunal under s 90 of the Equal Opportunity Act 1984 (WA) (EO Act).
Ordinarily, what would follow such a referral is that the Tribunal would be required to conduct an inquiry into the complaint.[4] Mr Ibrahim would be the applicant.[5] However, this case is unusual in that Mr Ibrahim is a person who has been determined to be a vexatious litigant under the Vexatious Proceedings Restriction Act 2002 (WA) (VPR Act) and subject to an order made pursuant to s 4(1)(d) of the VPR Act.
[4] Section 107(3) EO Act.
[5] Section 108 EO Act.
Relevantly, the order, made on 7 August 2014, provides:
Mr Mohamed Tareek Ibrahim is prohibited from instituting any proceedings, as defined in the VPR Act 2002 (WA) (Act), unless he first obtains leave of a court or tribunal, as the case requires under section 6 of the Act.
The respondent has sought an order that the Tribunal dismiss Mr Ibrahim's complaint on the ground that it has no jurisdiction to deal with the matter because the proceedings were instituted without leave of the Tribunal in contravention of:
(a)the terms of the order of the Supreme Court; and
(b)the requirements of the VPR Act.
At the first directions hearing following the referral (or purported referral) to the Tribunal by the Commissioner, the issue of Mr Ibrahim's need to obtain leave to institute proceedings was raised with the Member. Mr Ibrahim subsequently made an application for leave to institute the proceedings which was dated 10 November 2020.
On 20 January 2021, I heard the parties in relation to the application for leave. For the reasons set out below I have come to the conclusion that the Tribunal does not have jurisdiction in relation to MIbrahim's complaint. Accordingly, I will make orders dismissing the application for leave to initiate proceedings and dismissing the complaint, EOA 17/2020, for want of jurisdiction.

Materials before the Tribunal

Mr Ibrahim has filed two affidavits in support of his application for leave. They are dated 10 November 2020 and 8 December 2020 respectively.
In addition, I have had regard to the complaint which was referred to the Tribunal by the Commissioner.
The respondent relied upon the affidavit of Anlee Shiying Khuu sworn 22 December 2020.

Issues

As will be apparent from the above summary the issues to be resolved by the Tribunal were:
(1)Whether the giving of notice under s 90(1), requiring the Commissioner to refer the complaint to the Tribunal pursuant to s 90(2) of the EO Act constitutes the 'institution of proceedings' for the purposes of the VPR Act.
(2)If so, whether the Tribunal is able to entertain Mr Ibrahim's application for leave to institute those proceedings given that it was made after the complaint was referred to the Tribunal by the Commissioner.
(3)If so, should the Tribunal dismiss the application under s 6(5) of the VPR Act.

Principles of statutory construction

The outcome of this matter depends on the construction of relevant provisions of the VPR Act, the EO Act and the State Administrative Tribunal Act 2004 (WA) (SAT Act). Before turning to those provisions it is necessary, therefore, to touch briefly upon the principles of statutory interpretation.
The principles of statutory construction are well known. Isummary, the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.[6] The starting point is to consider the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and legislative purpose.[7]
[6] Director General of Department of Transport v McKenzie [2016] WASCA 147; (2006) 77 MVR 306 [46] (Buss P, Murphy JA & Beech J agreeing).
[7] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27.
In Caratti v Mammoth Investments Pty Ltd[8] Buss JA summarised the proper approach to statutory construction in as follows:
The modern approach to statutory construction is purposive. The statutory text is the surest guide to Parliament's intention. A decision as to the meaning of the text requires consideration of the context, in its widest sense, including the general purpose and policy of the provision.
The context includes the existing state of the law, the history of the legislative scheme and the mischief to which the statute is directed.
The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions. The intended reach of a legislative provision is to be discerned from the words of the provision and not by making an a priori assumption about its purpose.
(Citations omitted)
[8] Caratti v Mammoth Investments Pty Ltd [2016] WASCA 84; (2016) 50 WAR 84 [390][392].
A construction which promotes the purpose or object of the law is to be preferred to a construction that does not promote that purpose or object.[9] Gageler J recently made the following observations about statutory interpretation which must be borne in mind when undertaking the task of statutory interpretation:
[O]ne of the surest indexes of a mature and developed jurisprudence is 'to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning'. The responsibility of a court performing its constitutionally mandated function of authoritatively attributing meaning to legislated text, to the extent necessary to resolve a dispute as to legal rights or legal obligations, is correspondingly 'to give the words of statutory provision the meaning that the legislature is taken to have intended them to have'. That a finding of purpose can involve a 'contestable judgment' only heightens that responsibility.
'The words "intention", "contemplation", "purpose" and "design" are routinely used by courts in relation to the meaning of legislation' and 'are orthodox and legitimate terms of legal analysis, provided their objectively is not overlooked'. Each is appropriate to be used by a court to acknowledge the indisputable and foundational fact that legislated text is the product of deliberate choice on the part of democratically elected representatives to pursue collectively chosen ends by collectively chosen means. To reduce legislative intention to a label for the outcome of constitutional choice made by the court itself, is to miss the point of the traditional terminology. It is to ignore that the responsibility of the court, in making constructional choice, it to adopt an authoritative construction of legislated text which accords with the imputed intention of the enacting legislature. Worse, it is to use a constructional methodology which fails to give full expression to 'the constitutional relationship between courts and the legislature'.
(Footnotes omitted)

Vexatious Proceedings Restriction Act 2002 (WA)

[9] Interpretation Act 1984 (WA) s 18.

I turn now to consider the relevant provisions of the VPR Act.
Section 4(1) of the VPR 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 of the VPR Act provides, relevantly:
(1)Proceedings are not to be instituted in contravention of an order under section 4(1)(d).
(2)If
(a)despite subsection (1), proceedings are instituted in contravention of an order under section 4(1)(d); and
(b)those proceedings are struck out by a court or tribunal in the purported exercise of a power to strike out the proceedings, the court or tribunal has the power to award costs to the same extent as if the proceedings had been brought and had been struck out by the court or tribunal.
(3)Costs awarded under subsection (2) are recoverable in the same manner as if the proceedings could have been instituted in the court or tribunal and had been struck out by the court or tribunal.
(4)A subpoena, summons to a witness, warrant, or process procured to be issued by a person in any proceedings stayed by an order under section 4(1)(c) or instituted by a person in contravention of an order under section 4(1)(d) is of no force or effect in law.
Section 6 provides as follows:
6. Leave to institute proceedings
(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.
The expression 'institute proceedings' is defined in s 3 of the VPR Act. By paragraph (b) of the definition the expression includes:
in the case of proceedings before a tribunal, the taking of a step or the making of an application which may be necessary in a particular case before proceedings can be commenced before the tribunal[.]
The word 'proceedings' is also defined in s 3. It provides that its meaning includes:
(a)any cause, matter, action, suit, proceeding, trial, or inquiry of any kind within the jurisdiction of any court, including a court of summary jurisdiction, or a tribunal; and
(b)any proceedings, including interlocutory proceedings, taken in connection with or incidental to proceedings pending before a court, including a court of summary jurisdiction, or a tribunal; and
(c)an appeal from a decision or determination, whether or not a final decision or determination, of a court, including a court of summary jurisdiction, or a tribunal[.]
The expression 'vexatious proceedings' is also defined in s 3. It provides as follows:
vexatious proceedings means proceedings
(a)which are an abuse of the process of a court or a tribunal; or
(b)instituted to harass or annoy, to cause delay or detriment, or for any other wrongful purpose; or
(c)instituted or pursued without reasonable ground; or
(d)conducted in a manner so as to harass or annoy, cause delay or detriment, or achieve any other wrongful purpose.

EO Act provisions and the State Administrative Tribunal

In order to determine whether the giving of notice to the Commissioner requiring him to refer the complaint to the Tribunal amounts to the institution of proceedings for the purposes of the VPR Act, it is necessary to set out the relevant provisions of the EO Act and to say something about the Tribunal's jurisdiction.
The Tribunal was established pursuant to s 7 of the SAT Act.
The SAT Act recognises that the Tribunal has both review and original jurisdiction, depending on the kind of matter involved. Section 13 of the SAT Act provides that the SAT's jurisdiction is conferred by enabling Acts giving the Tribunal jurisdiction to deal with matters and, additionally, that it has the jurisdiction given to it by the SAT Act to deal with a matter.
It is also useful to note that under the SAT Act, when the term 'applicant' is used in the context of its review jurisdiction that term is defined in s 3(a) to mean the person who:
(i)applies to the Tribunal for review; or
(ii)otherwise brings a matter before the Tribunal; or
(iii)requests, requires, or otherwise seeks that a matter be referred to, or otherwise brought before, the Tribunal.
In this particular case the Tribunal's jurisdiction to deal with the complaint is conferred by the EO Act which, in s 107(3), provides that subject to s 107(3a) the Tribunal shall hold an inquiry into each complaint or matter referred to it under s 90(2), s 93(1) and s 107(1). In so doing the Tribunal is exercising original jurisdiction.
The Commissioner's power to dismiss complaints is found in s 89 of the EO Act. It provides:
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.
The process by which complaints which have been dismissed by the Commissioner may be referred to the Tribunal is set out in s 90 of the EO Act. It provides:
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.

The EO Act also permits the Commissioner to refer a matter to the Tribunal on his own initiative; that is, in the absence of a referral. That power is given to the Commissioner by s 93(1) of the EO Act.
Section 107 of the EO Act sets out the functions of the Tribunal in respect of EO matters. Section 107(3) provides that, subsect to subsection 107(3a) the Tribunal shall hold an inquiry into each complaint or matter referred to it under s 90(2), s 93(1) or subsection 107(1).[10]
[10] Although s 107(3a) provides, among other things, that the Tribunal shall not hold an inquiry into matters referred to it under s 90(2), s 93(1) if the complainant notifies the Tribunal that it does not wish the inquiry to be held or continued.
Section 108 of the EO Act provides that when a referral is made by the Commissioner under s 93(1), the Commissioner is excluded from the definition of 'applicant' under s 3(1) of the SAT Act and the complainant is the applicant in those proceedings.
The Tribunal has no jurisdiction in relation to matters which have not been referred by the Commissioner[11] and it is limited to inquiring into a complaint which was accepted by the Commissioner.[12] That is, the scope of the inquiry cannot exceed that which was accepted by the Commissioner and the Tribunal has no jurisdiction to deal with complaints which were not accepted by the Commissioner. For example, the Tribunal could not inquire into matters that the Commissioner did not accept on the basis that the complaint was lodged out of time and could not consider allegations of discrimination on grounds additional to those in the complaint actually accepted by the Commissioner.
[11] With the exception that by s 126 of the EO Act it can deal with applications for interim orders to preserve the status quo between the parties or the rights of the parties at any time after the lodging of a complaint.
[12] Sanzana and Director General, Disability Services Commission [2011] WASAT 208; De Al Wis and Commissioner for Corrective Service [2017] WASAT 17; Winter and Commissioner of Police [2006] WASAT 87; Summerville and Department of Education & Ors [2006] WASAT 174.
The respondent contends that the Tribunal has no jurisdiction in respect of Mr Ibrahim's complaint. It says that the matter is not properly before the Tribunal because the proceedings were instituted by Mr Ibrahim without first obtaining leave of the Tribunal in breach of the terms of the order of the Supreme Court and in contravention of the prohibition in s 5(1) of the VPR Act. It submits that the purported proceedings should be dismissed or struck out as contemplated in s 5(2) of the VPR Act.
There can be no doubt, and I conclude, that the inquiry which is to be conducted by the Tribunal upon referral of a complaint by the Commissioner under s 90(2) of the EO Act is a 'proceedings' as that term is defined in s 3 of the VPR Act.
It is also beyond doubt that the clear and unambiguous words of the Supreme Court's order of 7 August 2014 require that Mr Ibrahim have obtained leave of the Tribunal before instituting proceedings in the Tribunal.
Mr Ibrahim accepted that as a vexatious litigant he is required by the order of 7 August 2014 to obtain the leave of the Tribunal before the action can be initiated. However, he asserted that in the case of complaints of discrimination made under the EO Act, it is not possible to bring any kind of application for leave until the referral has been made by the Commissioner because without a referral having been made, there is no matter before the Tribunal in which an application for leave can be brought.
Mr Ibrahim informed the Tribunal that prior to this complaint being referred to the Tribunal but after being subject to the order made pursuant to the VPR Act, he had brought different proceedings in the Tribunal. From his explanation of these proceeding I take it that he was referring to proceedings commenced under the Retirement Villages Act1992 (WA) although Mr Ibrahim did not make that clear and did not provide a matter number or any real details about the proceedings. He said that when he had approached the Tribunal in order to ascertain on what form an application for leave to commence those proceedings should be brought he had been told he was required to find and use an appropriate form on 'the Wizard'[13]. He said no form for application for leave to commence proceedings could be generated via the Wizard and that the absence of a form caused him to conclude that, in that case and this one case, he should just make an application for leave after the complaint had been referred by the Commissioner.
[13] Para 59 of the submissions dated 8 December 2020 and paras 53 and 54 of the submissions in reply dated 5 January 2021. Although in his submissions Mr Ibrahim referred to the Wizard as 'the Wised': see written submissions dated 8 December 2020 at para 59, and ts 38, 20 January 2021.
Mr Ibrahim also said that when he had commenced proceedings in the Magistrates Court he did so by filing an application for leave and attaching the substantive application he proposed to bring if leave were granted. He said he was trying to apply that process to this matter and could not attach the complaint to his application for leave until it was referred by the Commissioner.
Mr Ibrahim submitted that he had not understood, and in any event would not accept, that the law required him to seek leave of the Tribunal before writing to the Commissioner requiring the referral of the complaint to the Tribunal.
What then is the step that institutes proceedings of this kind? On the one hand, it might be thought that the proceeding is instituted by the actual referral of the complaint to the Tribunal by the Commissioner under s 90(2) of the EO Act. On the other hand, it might be thought that the written notice given by the complainant to the Commissioner requesting referral to the Tribunal institutes the Tribunal's proceedings because unless the Commissioner were to refer the matter on its own initiative under s 93 of the EO Act, the referral would not be made without the written notice requiring referral having been given by a complaint.
Section 90(1) of the EO Act requires that the written notice that a complainant requires the Commissioner to refer a matter to the Tribunal must be served on the Commissioner within 21 days after receipt of the Commissioner's notice of outcome which is given under s 89 of the EO Act. There is no power pursuant to which either the Commissioner or the Tribunal can extend that time.
The respondent says that the step which initiates the Tribunal's proceedings in circumstances where the Commissioner has dismissed a complaint is the giving of the written notice to the Commission by the complainant requiring the referral of the complaint to the Tribunal. I accept that submission. Without the taking of that step by a complainant, a complaint which has been dismissed by the Commissioner as lacking in substance would never come before the Tribunal.
Twenty-one days is a reasonably short time frame within which a person aggrieved by the decision of the Commissioner must have made and have had determined an application for leave to commence proceedings in the Tribunal and, if leave is given then to have served notice on the Commissioner in order to have their complaint brought before the Tribunal. That might suggest that leave can be sought after the event. But if, on the making of an application the Tribunal were to be informed of the urgency of the matter, it would no doubt do its best to ensure that the application would be treated as expeditiously as necessary. Any practical difficulty in meeting the timeframe cannot alter the clear and unambiguous meaning of the VPR Act or the order was made pursuant to it to which Mr Ibrahim was subject. It is to be expected that a vexatious litigant, someone who by definition has had extensive experience as a litigant, will familiarise themselves with the requirements of the VPR Act and how it impacts upon any proceedings they wish to take.
In contrast, where the Commissioner refers the matter to the Tribunal under s 93 of the EO Act, although the complainant is taken by s 107 to be the applicant, the application is, as a matter of fact, made by the Commissioner. The step in such a case that would initiate the proceedings would be the referral under s 93 of the EO Act. In the unusual case where the person taken to be the applicant under s 108 is also a person who is a vexatious litigant, no application for leave to commence proceedings would be required to be brought by that person. The Commissioner would have initiated the proceedings in that case. That would not be contrary to the intention of the VPR Act because in such a case there would have been some screening of the merits of the complaint by the Commissioner who would have had to form the view that it was appropriate to refer the matter to the Tribunal. In such a case the vexatious litigant will not have been in control of the process.
Although the argument was not made by Mr Ibrahim, I next turn to consider whether the application for leave to commence proceedings which was made by Mr Ibrahim after the referral was made by the Commissioner could be entertained by the Tribunal.
Section 9 of the SAT Act provides:
The main objectives of the Tribunal in dealing with matters within its jurisdiction are
(a)to achieve the resolution of questions, complaints or disputes, and make or review decisions, fairly and according to the substantial merits of the case; and
(b)to act as speedily and with as little formality and technicality as is practicable, and minimise the costs to parties; and
(c)to make appropriate use of the knowledge and experience of the Tribunal.
It might be thought to be arguable that the Tribunal's objective of acting speedily and with as little formality and technicality as is practicable would permit the Tribunal to entertain Mr Ibrahim's application for leave notwithstanding that it was made after the referral of the complaint to it by the Commissioner. However, there are several reasons why I do not accept that to be the case.
First, the objectives are expressly said to apply in relation to dealing with matters within the Tribunal jurisdiction (my emphasis). Where, as I have found in this case, the matter is not within the Tribunal's jurisdiction, the objectives in s 9 of the SAT Act have no application.
Second, in my view a provision such as s 9, which guides the way in which the Tribunal should conduct matters which are before it, is not capable of overriding the terms of an order of the Supreme Court or the express meaning of the prohibition in s 6(1) of the VPR Act.
Third, if the Tribunal were to have power to validate an application brought by a vexatious litigant without the prior leave of the Tribunal one would expect to see that power expressly conferred under the VPR Act or the SAT Act itself. No such express power exists.
Finally, allowing a vexatious litigant to commence proceedings and then to seek and obtain leave to commence those proceedings, which leave is to apply retrospectively, would be contrary to the purpose underpinning the requirement to seek leave before commencing proceedings. That purpose being to ensure that the courts or tribunal and third parties' time and resources are not taken up with dealing with proceedings which are an abuse of process, or which are themselves vexatious or for which there are no prima facie grounds.
If the screening process which set out in s 6(4) and s 6(5) of the VPR Act is to be permitted to occur after proceedings are commenced, respondents will have already become involved in the process and the benefits of an ex parte process would be lost to them. Indeed, that was exactly the situation which occurred in this case. Having been named as a respondent when the matter was referred to the Tribunal, the City of South Perth has been compelled to engage legal representation and to file an affidavit and submissions in an attempt to have the proceedings dismissed. Whereas, if the leave application had been made before Mr Ibrahim gave written notice to the Commissioner that he required the complaint to be referred to the Tribunal, none of that may have been required because the Tribunal may have dismissed the application pursuant to s 6(5) of the VPR Act.
The respondent in this case said that the conclusion that the application for leave must be made prior to the instituting of proceeding is further supported by the following statement of Le Miere J made in Attorney General v Michael & Anor [2005] WASC 203 at [143]:
The effect of an order made under s 4(1)(d) of the [VPR] Act does not remove the right to issue proceedings entirely. A person against whom such an order has been made still has access to the courts. However, he is required to take an additional step in the process by obtaining the permission of the court prior to any claims being issued.
While the respondent conceded that the question being considered in that case was an application for leave to commence proceedings and was not concerned with whether a notice given under s 90(1) of the EO Act to the Commissioner requiring referral of a complaint to the Tribunal amounted to the institution of proceedings, it points to his Honour's use of the words 'prior to any claims being made' as an unambiguous statement of general application.
The respondent also referred to the statement of Heenan J in Re the Governor of Western Australia Ex Parte Keating [2007] WASC 323 at [14] in support of its position. In that case his Honour said:
Any attempt by [Mr Michael] to institute proceedings without leave would result in the registry refusing to accept the applications.
The respondent says that that is a clear statement that there is no capacity to deal with an application for leave to commence proceedings after the substantive application has been commenced.
The VPR Act places the onus on the vexatious litigant seeking to initiate proceedings to seek and obtain leave before doing so. In this case Mr Ibrahim did not do so. The Tribunal has no power to deal with an application for leave brought after a referral is made.
It follows from the conclusions which I have reached that:
(1)Mr Ibrahim's notice to the Commissioner requiring him to refer his complaint to the Tribunal was the step which initiated the proceedings in the Tribunal; and
(2)leave of the Tribunal to commence proceedings must have been sought and obtained before the notice was given to the Commissioner, I find the Tribunal has no jurisdiction in relation to Mr Ibrahim's complaint and the matter must be dismissed.

If the application for leave is maintainable, should it be dismissed under s 6(5) VPR Act?

In their submissions Mr Ibrahim and the respondent each addressed the substantive merits of the application for leave in addition to the question of whether the Tribunal has jurisdiction in respect of Mr Ibrahim's complaint. As a result of the conclusion I have reached that the Tribunal has no jurisdiction in respect of the complaint it is not necessary to make findings in relation to the merits of the application. However, for the sake of completeness I will make some observations in relation to that issue.
Section 6(6) of the VPR Act provides that before the Tribunal grants an application for leave it must order that a copy of the application be served on the Attorney General, the person who brought the application by which the applicant was determined to be a vexatious litigant and the proposed respondent to the proceedings, and give them an opportunity to be heard in opposition to the application. Section 6(7) of the VPR Act prevents the Tribunal from granting leave unless it is satisfied that the proceedings are not vexatious and that there is a prima facie ground for the proceedings.
In order to give meaning to s 6(4), which prevents the application for leave and the supporting affidavit from being filed on any person without an order of the court, s 6 must, in my view, be construed as providing a two-step process, where applications which are clearly lacking in merit or do not meet the requirement of s 6(3) 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 VPR Act.
In this case, as I have already noted the respondents became involved in the proceedings before the application for leave was made. Because of that, there was little point in considering whether to dismiss the application under s 6(5) of the VPR Act on an ex parte basis. Therefore, I made orders which facilitated the respondent's, although not the Attorney General's, involvement in the proceedings under s 6(6) and s 6(8) of the VPR Act. Mr Ibrahim took exception to the respondent making submissions at what he said should have been an ex parte hearing, and submitted that the Tribunal should disregard the respondent's submissions. Although the process adopted may have been somewhat unusual because of the way in which the matter was commenced, I am satisfied that the involvement of the respondent at the hearing was permitted by the provisions of the VPR Act. Had I not determined that the Tribunal has no jurisdiction in relation to this matter and had I also not determined that I would have dismissed the application for reasons to which I shall come to later, I would have been required to ensure that the Attorney General was informed of the application and given an opportunity to oppose it before leave could have been granted.
The respondent submitted that in the event that the Tribunal found that it had jurisdiction in relation to the matter, Mr Ibrahim's application should be dismissed on the grounds that:
(1)it does not satisfy the requirements of s 6(3) of the VPR Act;
(2)it discloses no prima facie ground for the proceeding; and
(3)Mr Ibrahim's reliance upon matters which the Commissioner did not accept as part of the complaint demonstrates that the intended proceedings is frivolous or vexatious.
Mr Ibrahim's position was that he had done his best to set out in his affidavit the matters required under s 6(3) of the VPR Act and that his complaint has merit because the way in which he was treated by the managers of the retirement village was vastly different from the way in which other people were treated and the only possible explanation for that difference in treatment is his race.
Mr Ibrahim spent quite some considerable time during the hearing explaining the difference in treatment he says he received. Mr Ibrahim explained that he is a follower of Islam. He says the racist treatment he suffered at the retirement village commenced when he asked the manager to remove a bottle of alcohol which he had been given as a welcome gift when he moved into the village. He says that this set the manager against him. He says examples of the different treatment he received are:
(1)that his trees were not pruned when other people's trees were pruned;
(2)no action was taken to remove cars that were parked blocking his driveway but action was taken when other residents complained about cars blocking their driveways;
(3)he was threatened with being reported to the police when he was angry with a resident or visitor but when he was threatened by another resident and complained to management, the people who threatened him were not told they would be reported to the police;
(4)the village's managers provided his name and address to the local primary school who then sent him three unwanted Christmas cards which were specifically addressed to him. He alleged that the provision of personal information to the school must have been done with the intention of upsetting him because he did not wish to receive Christmas cards as he does not celebrate Christmas;
(5)his neighbours had placed a large Christmas decoration in their garden which he could see it from his own garden. He complained about its presence because he says it caused him to think there was someone looking over his fence whenever he caught a glimpse of it. Action was not taken quickly to remove it; and
(6)ultimately his lease was not renewed. The only explanation for the decision not to renew his lease, in light of other racist treatment, must be racism.

Mr Ibrahim said another resident would also say the manager was racist.
While not necessary to determine the issue I note that I would have dismissed the application on the following bases.
First I do not consider that Mr Ibrahim's affidavits, even when taken together, meet the requirements of s 6(3) of the VPR Act. Mr Ibrahim deposes that he has made an application in the Magistrates Court in relation to a dispute about services he claims he paid for but did not receive from a lawyer. He also says that he also made a claim in the Magistrates Court in connection with a dispute regarding some rental accommodation. He does not identify when the claims were made, what matter numbers were ascribed to them by the Magistrates Court, who the other parties to those actions were or the outcome of those applications. As the litigant who commenced those actions, that information must be within Mr Ibrahim's knowledge. Section 6(3) of the VPR Act requires that the affidavit contain a list of all the occasions on which the applicant has made an application for leave. The purpose of the list must surely be, at least in part, to assist the Tribunal to determine whether the proceedings which are proposed to be brought are vexatious. In order to serve that purpose the affidavit must contain sufficient information to enable the Tribunal reach a conclusion in relation to that issue. Without those basic details, which I have noted are absent from Mr Ibrahim's affidavits, the Tribunal has no basis upon which to come to a conclusion in relation to the issues to which it must have regard in determining an application for leave.
Second, for the reasons which follow, I consider that Tribunal proceeding which Mr Ibrahim has sought to commence is an abuse of process and, therefore, vexatious.
Section 3 of the VPR Act defines 'vexatious proceedings' to include proceedings which are an abuse of process.
An abuse of process is the unjustified or unreasonable use of legal proceedings or process to further a cause of action by an applicant or plaintiff in an action. An abuse of process can take many forms and the categories of what it amounts to are not closed (Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd) (2009) 239 CLR 75. Some examples include: the attempt to re-litigate issues that have already been determined in previous proceedings (Stokes (by a tutor) v McCourt [2013] NSWSC 1014), an attempt to litigate proceedings which could have/should have been litigated in previous proceedings (Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589) and the bringing of proceedings for the purpose of causing significant public, reputational and political damage (Ashby v Commonwealth (No 4) [2012] FCA 1411).
Mr Ibrahim made his complaint to the Commissioner who then asked him to provide further information to him in order to assist him to determine whether his allegation of discrimination was made out. Mr Ibrahim was told that if the additional information was not provided the Commissioner would dismiss the complaint. Mr Ibrahim declined to provide the information sought. He says this was because he was busy moving house at the time. Rather than seek an extension of time in which to provide the information which had been sought Mr Ibrahim simply told the Commissioner that he would not provide the information, that it was 'fine' for them to dismiss the complaint and he would instead 'just take it to the SAT'.[14]
[14] Annexure ASK 4 to the Affidavit of Anlee Shiying Khuu dated 22 December 2020.
In this case Mr Ibrahim has sought to have the Tribunal conduct an inquiry into his complaint without properly participating in the investigation process in the Equal Opportunity Commission. When the EO Act requires complaints of unlawful discrimination to proceed via investigation by the Commissioner at first instance. I find that disregarding the request for further information made by the Commissioner, deciding not to participate in that process and endeavouring to have the merits of his application dealt with for the first time in the Tribunal and endeavouring to commence proceedings in the Tribunal in order to give effect to that intent constitutes an abuse of process, not only of the Tribunal's process but of the entirety of process by which complaints of unlawful discrimination are to be resolved under the EO Act.
Support for that position is found in the Victorian decision of Kitson v Medhealth Pty Ltd (No 3) (Human Rights) [2017] VCAT 1505.
In that case the Victorian Civil and Administrative Tribunal held that Mr Kitson's proceeding in the Tribunal amounted to an abuse of process, and was itself vexatious. Mr Kitson had made a complaint to the Health Services Commission (HSC) but then refused to participate in its investigation causing the Tribunal to be unable to investigate the original complaint and forcing a referral to the Tribunal.
Vice President Judge Hempel said:
31I am satisfied the conduct of Mr Kitson in providing the heavily redacted letter …, coupled with his denial of permission to the HSC to access his health information, prevented the HSC from investigating the complaint, circumvented its investigative and conciliation functions, and forced a referral to VCAT without consideration of the original complaint on its merits. I am satisfied the provision of the redacted letter, and the refusal of permission to the HSC to access his health records for the purposes of investigating and seeking to conciliate the complaint was a conscious decision on Mr Kitson's part, a deliberate attempt to deny relevant information to the HSC, to force a referral to VCAT without allowing the HSC to consider the matter on the merits, and to reagitate matters already dealt with by the HSC and VCAT.
32I am satisfied this, of itself, is vexatious, and amounts to an abuse of process.
That conclusion was also the view reached by Judge Jenkins, in Medhealth Pty Ltd v Kitson (Review and Regulation) [2018] VCAT 553 at [182] in relation to the same conduct.
Finally, I note that the respondent also submitted that there was no prima facie ground for the proceeding and that the application for leave ought to be dismissed on that basis. The respondent submitted that Mr Ibrahim had not demonstrated, even to the slightest degree, that he had been treated differently in the area of accommodation than another person in his position but of a different race would have been treated by it.
Without reaching any conclusion as to the actual merits of his case, on the basis of Mr Ibrahim's statements about his treatment, and his assertion that another resident would give evidence of the manager's racist conduct, and because, in the inquiry which would be conducted by the Tribunal, the Tribunal is entitled to consider evidence that was not before the Commissioner and is not bound by the rules of evidence, I would not have concluded at this stage of the process that there was no prima facie ground for the proceedings. If that were the only issue to be determined I would have required that the Attorney General be given notice of the application and afford him an opportunity to be heard in opposition to it before determining whether there was any prima facie ground for the proposed proceeding.

Orders

In light of the conclusion I have reached that the Tribunal has no jurisdiction in relation to Mr Ibrahim's complaint the Tribunal makes the following orders:
1.The applicant's application for leave to commence proceedings dated 8 December 2020 is dismissed; and
2.EOA matter 17 of 2020 is dismissed for want of jurisdiction.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
CH
Associate to Judge Glancy
9 FEBRUARY 2021