Kalsbeek v Max Solutions Pty Ltd
[2018] WADC 183
•21 DECEMBER 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: KALSBEEK -v- MAX SOLUTIONS PTY LTD [2018] WADC 183
CORAM: STEVENSON DCJ
HEARD: 26-29 NOVEMBER 2018
DELIVERED : 21 DECEMBER 2018
FILE NO/S: CIV 4267 of 2017
BETWEEN: ROBERT KALSBEEK
Plaintiff
AND
MAX SOLUTIONS PTY LTD
Defendant
Catchwords:
Tort - Self-represented litigant - Liability of employer for acts of employees - Alleged negligence causing aggravation of psychological injury - Assault - Breach of duty - Duty of care - Defamation - Justification - Qualified privledge - Limitation period - Statuted-barred
Legislation:
Civil Liability Act 2002 (WA), s 5S(1), s 5T
Defamation Act 2005 (WA), s 30(1), s 30(2), s 30(3)
Limitation Act 2005 (WA), s 14(1), s 15, s 25, s 55(1)
Social Security Act 1991 (Cth)
Result:
Plaintiff's claims dismissed
Representation:
Counsel:
| Plaintiff | : | In person |
| Defendant | : | Ms K A T Pedersen |
Solicitors:
| Plaintiff | : | Not applicable |
| Defendant | : | Jackson McDonald |
Case(s) referred to in decision(s):
Adam v Ward [1917] AC 309
Aktas v Westpac Banking Corporation Ltd (2010) 241 CLR 79
Capolingua v Nationwide News Pty Ltd [2016] WASC 156
Cush v Dillon (2011) 243 CLR 298
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Howe v Lees (1910) 11 CLR 361
Knell v Harris [No 5] [2018] WADC 177
Papaconstuntinos v Holmes a Court (2012) 249 CLR 534
Roberts v Bass (2002) 212 CLR 1
STEVENSON DCJ:
Introduction
The plaintiff (Mr Kalsbeek) is a 63‑year‑old Centrelink disability support pensioner who strongly identifies with his Dutch heritage having been born in the Netherlands on 19 July 1955.
The defendant (Max Solutions) relevantly offers employment services to the Commonwealth government in two programmes administered by the Commonwealth government; the 'Job Services Australia' programme, and the 'Disability Employment Services' programme.
The action is concerned with claims by Mr Kalsbeek against Max Solutions' provision of services to him due to his status to claim and receive benefits under the Social Security Act 1991 (Cth). At all material times, Max Solutions was acting in accordance with its contractual requirements with Centrelink.
At its core, Mr Kalsbeek's complaint is that at all material times he should have been on a disability support pension and, in addition, be exempt from the need to undertake any job seeker activities (the participation requirement for receiving a benefit).
Mr Kalsbeek attended the premises of Max Solutions on seven occasions in the period 4 September 2014 to 1 October 2014 and, in doing so, came into contact with several employees of Max Solutions.
At the outset it must be observed that Mr Kalsbeek represented himself. Throughout the trial he was assisted on matters of practice and procedure. Allowances were made for him to behave in the way he did by reason of his personal circumstances, including his physical disability which required him to sit and stand at different times. With respect, it is difficult to ascertain the legal basis of Mr Kalsbeek's claims, particularly when on the third day of the trial, he indicated to the court that he was going to 'abandon' the trial.
Mr Kalsbeek did not file conventional pleadings. He appears to make the following claims against Max Solutions:
(a)negligence causing personal injury by reason of being struck with a chair;
(b)negligence causing aggravation of psychological injury by reason of being 'patronised, ridiculed and psychologically used, abused and misused by Max Solutions' - including being required to participate in resume and letter writing classes; and
(c)defamation (also described as misleading and deceptive allegations) with respect to Max Solutions' records of the plaintiff's two attendances at Max Solutions' Innaloo branch on 2 September 2014.
Mr Kalsbeek did not adduce any medical evidence to support of his claim that he suffered a physical injury or psychological harm. He did not lead any evidence of alleged financial loss. Paragraph 26 of the statement of claim pleads a claim for $550,000 arising out of the alleged aggravation of a pre‑existing psychological injury. He also claimed a further sum of $150,000 in damages for 'the deliberate and false allegations of misconduct resulting in the forced removal of himself from MAX Employment and allegedly Centrelink'.
For the reasons that follow, in my opinion Mr Kalsbeek's claims must be dismissed.
Mr Kalsbeek's self-represented status
Mr Kalsbeek was self‑represented. In some respects the trial was unusual because of the personal characteristics and behaviours of Mr Kalsbeek. Generally, he was compliant and respectful to the court. He constantly maintained that he was 'learning on the job'. The trial procedure and the basic rules of evidence were explained to Mr Kalsbeek throughout the hearing. He was given a great deal of latitude, in part so as to obtain a better understanding of the basis of his alleged claims.
At times, Mr Kalsbeek was allowed to 'make speeches' which touched on irrelevant matters and his personal background circumstances. For example, part-way through the trial he was permitted to make a long statement only because he indicated he 'had already won' and that he was going to 'abandon' the trial. This included statements about how he had obtained a 'payout' from WorkCover and how he was open to a similar settlement offer in this case, especially as the trial had commenced. Obviously, no settlement offer was forthcoming and for good reason.
It must be observed that Ms Pederson, the defendant's counsel, and her instructing solicitor were very patient and assisted Mr Kalsbeek appropriately with references to the documentary evidence. At times, but for the fact Mr Kalsbeek was self‑represented, it seemed the matter could have been summarily dismissed because his case was hopeless. Certainly, there was no attempt to adduce all relevant evidence to underpin the claims, particularly with respect to any alleged loss and damage.
Positions adopted by Mr Kalsbeek in his submissions and oral evidence waxed and waned. For example, what came to be referred to as the chair incident commenced with the pleaded contention that he was struck with a chair. However, as a result of evidence given in the trial, he became focused on 'not being struck by the footstool' that had been offered to assist him during the training session. There is a suggestion in the documentary evidence that, when he made his complaint to the police, he alleged he was struck by the footstool, as opposed to the chair.
The duty to assist Mr Kalsbeek as a self‑represented litigant was challenging and it was difficult to find the balance to ensure a fair trial in the interests of justice. See Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10]:
… A court should always be careful to see that the rights of an unrepresented litigant have not been 'obfuscated by their own advocacy': Neil v Nott [1994] HCA 23 [5]; (1994) 121 ALR 148, 150. It must be alert to the possibility that beneath inadequately expressed and often irrelevant material there may lurk an arguable case. And some leniency may be required in relation to compliance with the rules. But in the end the allowances that can be made for a litigant in person are necessarily limited, both as a matter of fairness to the other party, who must be adequately informed of the case they have to meet, …
Background circumstances
The documentary evidence discloses a number of matters which are not contentious.
Between March 2001 and February 2009, Mr Kalsbeek received a disability support pension before moving overseas and living in China and Vietnam.
In October 2013, Mr Kalsbeek returned to live in Australia. He contacted Centrelink on 16 October 2013 to seek resumption of the DSP benefits he was receiving before he moved overseas.
On 22 October 2013, Mr Kalsbeek submitted a claim for a DSP and was granted a Newstart Allowance pending assessment of his claim.
On 13 November 2013, a job capacity assessment report was prepared at Rockhampton Centrelink, Queensland, by a registered psychologist and a registered occupational therapist. The report notes that Mr Kalsbeek 'has minimal motivation to work and no work goals as he does not feel he is capable of working in any capacity'. The report recommended a deferred referral to disability management services to be actioned on 13 May 2014 to assist Mr Kalsbeek with gaining employment suitable to his capacity following a period of exemption whilst he pursues further diagnostic investigations and treatment of his chronic fatigue/depression.
Mr Kalsbeek's claim for payment of DSP was rejected on 19 November 2013.
On 21 January 2014, Mr Kalsbeek sought a review of the 19 November 2013 decision of a Centrelink employee that he was not qualified for payment of DSP on the basis, 'You have been assessed as not having an impairment rating of 20 points or more'.
On 17 February 2014, Mr Kalsbeek was referred for a further JCA. Unlike the first time, which was face‑to‑face, this was done on the file. The JCA assessors arrived at the same opinion but with less hours capacity for work per week. They recommended that he be referred for employment service with 'DES – Disability Management Service'.
On 4 July 2014, Mr Kalsbeek made a complaint to the Commonwealth ombudsman regarding the conduct of the Centrelink psychologist who completed the JCA when Mr Kalsbeek reapplied for his DSP. The complaint was responded to by the Department of Human Services by a letter dated 15 July 2014.
On 15 July 2014, an opinion was published by the Health Professional Advisory Unit on Mr Kalsbeek's assessed impairment rating. The opinion was that Mr Kalsbeek did not qualify for an impairment rating for chronic fatigue/depression and that his overall impairment was 10 points. Accordingly, it was held that Mr Kalsbeek does not have a continuing inability to work.
On 23 July 2014, an authorised review officer further affirmed the rejection of Mr Kalsbeek's DSP claim.
On 19 August 2014, Mr Kalsbeek applied to the Social Security Appeals Tribunal for a review of the decision by Centrelink that Mr Kalsbeek was not entitled to be paid a DSP.
After the events that allegedly gave rise to Mr Kalsbeek's claims in this action, the Social Security Appeal Tribunal published its judgment on 24 October 2014. It concluded, on a reconsideration of the documentary evidence and medical opinions, that it was satisfied Mr Kalsbeek did meet the medical qualification requirements for a DSP.
Accordingly, the tribunal set aside the decision under review and in substitution decided that Mr Kalsbeek was medically qualified for disability support pension at the date of the claim and ordered that the decision have effect from 22 October 2013. This decision was posted on 29 October 2014, a month after the events relied upon by Mr Kalsbeek for his claims in this action. Mr Kalsbeek was paid $9,874 in arrears for the DSP that the tribunal determined he was entitled to receive as a result of his initial application on 22 October 2013.
On 27 November 2014, Mr Kalsbeek lodged a compensation for detriment caused by defective administration (CDDA) claim with the Department of Human Services. This was on the basis that the department had made errors in the assessment of his DSP claim and other reports. This claim was investigated by the department and it was determined that Mr Kalsbeek had not suffered a quantifiable financial loss.
At the request of Mr Kalsbeek, this decision was reviewed by an authorised officer of the Customer Compensation Team, Department of Human Services. On 11 August 2015, the decision statement held the result was that Mr Kalsbeek should be paid $239.40 compensation for unsubstantiated travel costs as a result of attending Max Solutions on seven occasions.
Even though Mr Kalsbeek did not commence these proceedings until 21 November 2017, it appears the catalyst for this action against Max Solutions (and another action against Centrelink) is the authorised officer's finding on 11 August 2015 that 'Mr Kalsbeek should have been referred to specialist services earlier than occurred, or had some relaxation of the participation requirements that he was struggling with'.
Mr Kalsbeek's motivation for commencing these proceedings and maintaining them against Max Solutions, in circumstances where it appears his grievance is with Centrelink and their failure to grant him a full disability support pension from the outset, was the subject of submissions by Max Solutions.
Mr Kalsbeek's own evidence admits to a possibility that this trial was an abuse of the court's process to further his own improper motives. Mr Kalsbeek's evidence in support of this proposition includes:
(a)wanting revenge against Max Solutions (even though at times this was expressed as revenge against Centrelink);
(b)wanting to have fun in court with 'frustrated gender biased and malicious Perth Innaloo females' under cross-examination and to watch them cry in court;
(c)wanting the experience of running an action in court saying 'the reason why there was the outrageous amounts [of loss claimed] was purely because I wanted this experience';
(d)wanting to use the court process to 'investigate the facts';
(e)notwithstanding that the claims might be statute-barred, using the process as a means to be listened to;
(f)wanting to use evidence to support a police investigation after the case is concluded; and
(g)having a 'brilliant experience' while thinking the process is a 'big joke'. He said, 'Sometimes I think it is all a big joke your Honour, like I said. You know. Everybody gets paid, I'm the only one who doesn't.'
The reference to Mr Kalsbeek's apparent motivations in bringing and maintaining the proceedings is relevant to the issue of costs as a result of the claim being dismissed.
Contractual context and obligations of the parties
Max Solutions' role as a Job Service Australia provider providing services to Mr Kalsbeek must be understood in light of his firm view (which is demonstrated in the documentation) that he should have been awarded a DSP in November 2013. This is significant because, upon being found entitled to a DSB on 24 October 2014, Mr Kalsbeek was no longer required to demonstrate that he had actively participated in an employment support programme in order to obtain financial assistance from the government.
In other words, if Mr Kalsbeek had been assessed as eligible for a DSP in late 2013, he would not have had to participate in Max Solutions' programme.
As of July 2014, Max Solutions was a 'provider' pursuant to the Employment Services Deed entered into with Commonwealth Department of Employment effective 1 July 2014 (the Contract). The Australian Government published 'Job Services Australia Eligibility, Referral and Commencement Guidelines' (the Guidelines) are to be read in conjunction with the Contract.
The Commonwealth also administers a programme of support called the Disability Employment Services (DES) to assist people with disabilities to prepare for, find and keep a job (DES Contract). There are two aspects to the DES Contract: being the disability management service (DES-DMS) for job seekers with disability who need assistance to find a job and occasional support in the workplace to keep a job; and the employment support service (DES-ESS), which provides assistance to job seekers with permanent disability to find a job and who need regular ongoing support to keep a job.
Broadly speaking, Max Solutions was obliged under the Contract and the Guidelines to provide services to job seekers engaged in the 'Job Services Australia' programme administered by the Commonwealth. Under that scheme, 'fully eligible participants' are required to meet activity test requirements in order to receive Income Support Payments.
Under the Contract, a 'fully eligible participant' is, relevantly, 'a person identified by Centrelink, the Department, the Provider or DHS Assessment Services on the Department's IT Systems as fully eligible for all stream services.' The 'Department's IT systems' means the Department's IT computer system accessible by a provider, through which information is exchanged between the provider, subcontractors, Centrelink, DHA Assessment Services and the Department in relation to the Services.
As a service provider, Max Solutions was required to provide Stream Services to all Stream Participants as set out in clause 36 of Chapter 3 of the Contract. It provides, relevantly:
The Provider must provide Stream Services to all Stream Participants:
(a)who are Referred to, or who Directly Register with, the Provider;
(b)within the Stream or Work Experience Phase identified:
…
(ii)for Fully Eligible Participants, in the most recent of:
(A)their Assessment ;
(B)their Direct Registration process under clause 40 [Direct Registration of Stream Participants without a Referral], if relevant; or
(C)any Change of Circumstances Reassessment;
'Assessment' is defined in the Contract to mean 'a formal assessment of a Fully Eligible Participant's level of disadvantage by either Centrelink or a Provider, using a JSCI, or by DHS Assessment Services, through an ESAt or JCA, and includes specification of the Stream under which Services will be provided to the Fully Eligible Participant' (Annexure E).
The Guidelines deal with various matters, including the booking of an appointment for a job seeker upon referral to a service provider (such as Max Solutions). Item 6 of Table 1 provides:
… once a provider is selected (either by the job seeker or random allocation) the Department of Human Services or the Employment Services Assessor or Job Capacity Assessor will book an Appointment for the job seeker, and then notify them of the Appointment details.
Once a provider is selected (either by the job seeker or random allocation), the Department of Human Services or the Employment Services Assessor or Job Capacity Assessor will book an appointment for the job seeker, and then notify them of the appointment details.
Table 2 of the Guidelines deals with the Initial Interview. Item 1 provides that 'JSA providers will be alerted to Referrals via booked Appointments in their Electronic Diary.' It requires the provider to complete various steps prior to the initial interview, including checking an ESAt or JCA has been submitted, contacting the job seeker to confirm the appointment, arranging for any special needs, and checking the job seeker's pervious participation.
JSA providers are required to access the job seeker's details on the Department's IT Systems to check if there are any special requirements that the JSA provider may need to cater for, such as an interpreter, or appropriate support and arrangements if the job seeker has a disability and requires assistance.
The JSA provider is also required to follow certain steps at the initial interview. This includes checking the provider is talking to the correct job seeker, explaining the type of services that may be provided in the job seeker's stream, explaining to an activity tested job seeker their rights and under obligations under social security law and the consequences of not meeting those obligations.
The JSA provider must also explain the use of job search facilities, provide an initial list of job vacancies, provide advice about how to look for work and advice on local labour market opportunities, and access to training places. An EPP must be negotiated for streams 2 to 4 and, upon completion, the provider must 'commence' the job seeker and record that fact in the Department's IT system.
Max Solutions had its own policy or procedure dealing with stream 2 and stream 3 commencement. Step 3 of this procedure required review of the 'JSCI' with the job seeker to ensure the details around current circumstances were correct. A JSCI is a set of weighted questions asked of a job seeker designed to measure the relative level of their disadvantage, which then determines their eligibility for stream 1, 2 or 3 within the JSA programme.
Centrelink may exempt a participant from activity test requirements and, if it does, it will notify the service provider. 'Exemption' is defined to mean 'circumstances recorded by Centrelink, resulting in an exemption by Centrelink of a Stream Participant's Activity Test Requirements for a specified period of time.' These circumstances include medically certified illness.
If a participant's individual circumstances change significantly, or they disclose information such that their most recent assessment is affected, clause 41 of the Contract allows for reassessment. Clause 41.1 provides:
The Provider must arrange for a Change of Circumstances Reassessment to be conducted in line with any Guidelines that the Department may issue concerning the matters set out in this clause for Fully Eligible Participants:
(a)in Streams 1, 2 or 3, by Centrelink or the Provider, using a JSCI; or
(b)in Stream 4, by DHS Assessment Services using an ESAt or JCA;
if, at any time;
(c)their individual circumstances have changed significantly; or
(d)they disclose information, such that their most recent Assessment is affected.
However, the consequences of a Change of Circumstance Reassessment are limited. Clause 41.2 contemplates that a Change of Circumstances Reassessment may lead to a change of stream services. Clause 41 does not deal with changing a participant to a different programme such as a DES Contract programme, and the Contract is silent as to that issue.
Attachment C of the Guidelines does deal with referring a job seeker to DES. It provides:
JSA providers may refer eligible job seekers to DES using the Electronic Diary, provided the job seeker:
•has a current and valid (i.e. less than 2 years old) ESAt or JCA with a recommended referral of Disability Employment Services;
•does not have a current medical exemption;
•does not have a temporary reduced work capacity of 0-7 hours (if the job seeker has a temporary reduced capacity of 8-14 hours, their participation with a provider will be voluntary);
•agrees that the referral can be made; and
•is present or on the phone when the referral is made to select their preferred provider.
JSA providers may refer eligible job seekers to DES using the Electronic Diary, provided the job seeker:
•has a current and valid (i.e. less than 2 years old) ESAt or JCA with a recommended referral of Disability Employment Services;
•does not have a current medical exemption;
•does not have a temporary reduced work capacity of 0-7 hours (if the job seeker has a temporary reduced capacity of 8-14 hours, their participation with a provider will be voluntary);
•agrees that the referral can be made; and
•is present or on the phone when the referral is made to select their preferred provider.
It is important to appreciate that while a JSA provider may, pursuant to the Guidelines, refer a job seeker to a disability employment service, it is not required to do so. Indeed, item 1 of Attachment C contemplates job seekers being referred to DES be limited to job seekers with a JCA with a recommended referral from Disability Employment Services. That is, the Guidelines contemplate the provision of services by a JSA provider to a job seeker who nonetheless has been recommended for Disability Employment Services. Similarly, the Job Services Australia Employment Services Assessment Guidelines (Assessment Guidelines) recognise that person recommended for DMS may be commenced in a Job Service Australia stream. The Assessment Guidelines provide that if a job seeker is unable to be commenced immediately in DES, he or she is eligible to continue receiving Stream Services. These guidelines reveal that a recommendation and subsequent referral does not necessarily match.
Furthermore, job seekers ultimately referred to the DES Contract DES-DMS programme retain job seeking requirements. For example, Mr Kalsbeek would have been required to attend an initial interview and to negotiate an employment pathway plan in the same way he was required to do those things at Max Solutions. That is, until the Social Security Appeals Tribunal reviewed the decisions to reject the Mr Kalsbeek's DSP claim, he was required to participate in job seeking programmes.
By way of summary, the Contract and the Guidelines establish a regime whereby the Department of Human Services makes a referral under the JSA programme, and that referral must then be actioned by a job service provider such as Max Solutions. While Centrelink can provide an exemption from activity test requirements, the Contract and the Guidelines do not contemplate a provider doing so. Indeed, a provider cannot exempt a participant. It can only:
i.in limited circumstances, arrange a change of circumstances reassessment to change a participant's stream of participation within the JSA programme; or
ii.refer a participant to a DES Contract DES-DMS provider in the electronic diary if the JCA recommends such a service
The evidence of the witnesses
Mr Robert Wynand Kalsbeek
The essence of Mr Kalsbeek's complaint appears to be set out in par 1 of his statement of claim which pleads:
… at the time of the incident was through misleading and deceptive Centrelink conduct maliciously and incorrectly assessed by Registered Psychologists as unemployed and not physically or psychologically disabled any more. Consequently the plaintiff was deliberately sent to the wrong training facility, being the defendant's MAX Employment Perth Innaloo branch, where instead of 1 hour counselling a week he was forced to participate in around 20 hours 'inappropriate, unnecessary and erroneous' work training, as per the Compensation for Detriment caused by Defective Administration (CDDA) compensation letter.
This grievance appears to be borne out of a comment in the customer compensation decision statement of 11 August 2015 where the authorised officer made the following finding:
Mr Kalsbeek should have been referred to specialist services earlier than occurred, or had some relaxation of the participation requirements that he was struggling with. At that time he was still assessed as not being qualified for DSP but having a greatly reduced work capacity.
On this basis, the authorised officer concluded on the part of Centrelink that there had been 'an unreasonable failure to implement appropriate participation requirements to suit his circumstances, as recommended by the Job Capacity Assessor on 18 February 2014, defective administration is accepted. This relates to the travel costs in attending Max Employment only'. This finding pertains to Centrelink, not Max Solutions.
As a result of his finding the authorised officer fixed the amount of compensation payable to Mr Kalsbeek at $239.40 as reimbursement for travel costs that could have been avoided as a direct result of having to attend Max Employment on seven occasions. For some personal reason Mr Kalsbeek has not accepted payment of this amount.
Mr Kalsbeek was plainly not satisfied with this outcome, as his claim for more than $240,000 was rejected. I infer the above findings by the authorised officer in his decision of 11 August 2015 was the catalyst that caused Mr Kalsbeek to subsequently commence legal proceedings against Centrelink and Max Solutions. I understand at least one claim against Centrelink has been struck out.
These findings seem to have caused Mr Kalsbeek, in his efforts to mount a claim against Centrelink and Max Solutions, to hold the further belief that the actions which led to this result were 'deliberate and malicious in order to cause him harm'. It must be immediately observed that Mr Kalsbeek has not adduced one scintilla of evidence to demonstrate that any person he dealt with at Max Solutions as a result of Centrelink's referral was motivated in the way he alleges. There is no evidence of any conspiracy or cover-up; and it remains a figment of his imagination consistent with his sense of entitlement.
The finding that he should have been referred to specialist services earlier than occurred does require a consideration of the steps taken by Max Solutions after Mr Kalsbeek was referred to them by Centrelink for job services training.
This conspiracy approach was also demonstrated by the way in which Mr Kalsbeek dealt with the evidence during the trial. He continually misstated the evidence of witnesses in a way that showed he only had the capacity to receive it through the lens of his own perceived case theory. A review of the transcript is replete with this type of conduct.
It appears Mr Kalsbeek believes that Max Solutions was in some way complicit and involved in the alleged editing or removal of part of a job capacity assessment report (JCA) on the Centrelink system (which was prepared by professionals for Centrelink). The point in time at which this is said to have occurred is unclear - that is, whether it was before or after his dealings with Max Solutions. Interestingly, towards the end of the evidence Mr Kalsbeek sought to produce pages 1 and 2 of an employment pathways plan prepared with him by Ms Walsh of Max Solutions on 2 and 19 September 2014. Mr Kalsbeek admitted that he had not discovered the two pages which he said he had taken from the office of Max Solutions, which may explain why Max Solutions did not have a copy of the pages.
Mr Kalsbeek's evidence was that he constantly informed Max Solutions' employees that he was 'at the wrong place'. He made reference to a medical certificate and a prepared statement which he had handwritten and referred to. The evidence of the other witnesses is to the effect that he constantly wanted Max Solutions to 'exempt' him from his participation requirements.
Mr Kalsbeek accepted in his evidence that Max Solutions first response was to advise him that he had to go to Centrelink because it did not have the authority or jurisdiction to exempt him from his work participation requirements. In fact, he did exactly this on 2 September 2014 but returned back to Max Solutions after he had been at Centrelink. He was advised again, consistently, given the referral to them by Centrelink that Max Solutions could not exempt him from the requirements.
Mr Kalsbeek was well aware by his conduct at the time that he was obliged to attend Max Solutions job seeker activities. He also appreciated that, if he failed to do so or was removed, it would jeopardise receipt of his Newstart Allowance. On this basis, Mr Kalsbeek accepted that he was required to attend the training programme commencing on 22 September 2014. Plainly, he resolved that he would do so reluctantly and would do his best not to be disruptive although, on his own admission, he became increasingly disruptive over the four days.
Mr Kalsbeek's passive behaviour included (on his own evidence) sleeping under the desk in the training room, even though he maintained that he was also crying at the same time. Mr Kalsbeek accepts that he became agitated and angry at having to undertake resume and letter writing classes, in part because he maintained he had two degrees and was completing a law degree (which he has now abandoned). He maintained he got 'a depression' as a result of having to do the compulsory classes. He regarded it as 'absurd', even though the last time he prepared a resume was in 1997.
Where there is a conflict in the evidence of Mr Kalsbeek and the other witnesses, I prefer the evidence of the other witnesses. On his own admission, he was confused as to some of the alleged events and his recollection was 'blurry'. Mr Kalsbeek's stated motivations and vicarious enjoyment derived from the trial itself and the legal proceedings as a whole - warrant careful scrutiny of every aspect of his evidence and the allegations he makes. Without legal advice, he is psychologically unable to accept any alternative outcome than what he wants to perceive the position to be, so that he can achieve his own ulterior motives. He is incapable of carefully and objectively analysing the oral and documentary evidence. He is trapped in his own conspiracy theory that he attaches to everything as a result of the wrong he perceives he suffered as a result of Centrelink rejecting his claim for DSP on his return to Australia.
Finally, after considering all the evidence carefully, I reject Mr Kalsbeek's evidence that he did not push Ms Armstrong in the manner that she alleged and I reject his evidence that Ms Stabback assaulted him with a chair.
Ms Deborah Anne Armstrong
Ms Armstrong was the business manager for Max Solutions' Innaloo office in the period 2011 to 2015. She reported to Ms Stewart, a regional manager.
Ms Armstrong said 'It would be fair to say that [she] never met a job seeker that wanted to be [at Max Solutions] so, quite often, they would resist their participation requirements'. For this reason she said Max Solutions conducted team group sessions about customer service and, in particular, dealing with difficult clients.
According to Ms Armstrong, Centrelink, when they referred a customer to Max Solutions, identified the stream for the job seeker. Streams 3 and 4 had more challenges to overcome in order to gain employment. Mr Kalsbeek was assigned stream 3 by Centrelink.
Ms Armstrong dealt with Mr Kalsbeek twice on 2 September 2014, which was the first time he attended the Innaloo office of Max Solutions.
I find Ms Armstrong gave Mr Kalsbeek clear and unequivocal advice that he needed to go back to Centrelink, as they were the only ones who could exempt him from his participation requirements (which was the reason why Centrelink referred him to Max Solutions).
Ms Armstrong's memory of her dealings with Mr Kalsbeek was refreshed by reference to comments in a file note in the 'Centrelink system' and also an 'incident report'. Both are dated 2 September 2014. Both are contemporaneous records consistent with Ms Armstrong's evidence that Mr Kalsbeek was informed not once, but twice - that his grievance was with Centrelink. This is because based on a medical certificate in his possession, he believed he should have been exempted from the work participation requirements which were a pre‑condition to him continuing to receive a Newstart Allowance.
Ms Armstrong's oral evidence was also consistent with the notes that Mr Kalsbeek raised his voice and became agitated in his frustration as a result of being unable to obtain an 'exemption' from Max Solutions.
In the course of his communications on 2 September 2014, Mr Kalsbeek unnecessarily stood physically close to Ms Armstrong and, as a result of his behaviours on both occasions, he was asked to leave the office. It was not necessary for security to physically remove Mr Kalsbeek from the office but, on the second occasion, Ms Armstrong saw and gestured to security guards walking past at the time she asked Mr Kalsbeek to leave. He did so by turning and leaving. The security guards were near the office door as he left and she turned and walked away. This explains her assumption in the file note that Mr Kalsbeek thereafter had left the mall with the security officers.
Ms Armstrong's dealings with Mr Kalsbeek on 2 September 2014, because of his agitated behaviour, was sufficient to cause her to prepare an incident report form as part of Max Solutions occupational, health and safety procedures. The incident report indicates that on the first occasion Mr Kalsbeek was asked to leave, he did so with security officers.
Ms Armstrong confirmed that she had access to Mr Kalsbeek's Job Capacity Assessment Report (JCA) on 2 September 2014 on the Centrelink system. She was cross‑examined about alleged changes to or deletion of page 3 of a job seeker report on the Centrelink system. Ms Armstrong's evidence, which I accept, was that Max Solutions did not have the capability to edit or change a JCA report on the Centrelink system. She did say that Max Solutions can complete a new document, which could have some default information in it, but she confirmed Max Solutions could not edit an existing report on the system.
I find that, on 2 September 2014, Mr Kalsbeek was frustrated and angry that he was required by Centrelink to attend Max Solutions to complete the participation requirements of his Newstart Allowance benefits. His objective on this day was to obtain an exemption from Max Solutions. This was not forthcoming and Centrelink also was not prepared to grant one. Ms Armstrong's incident report of 2 September 2014 makes reference to information from a manager of the Centrelink Innaloo branch that Mr Kalsbeek had been removed from the office on 1 September 2014, but there is no direct evidence of this.
In re‑examination, Mr Kalsbeek made a lengthy statement, part of which might explain the reason for his conspiracy theory and motivation in maintaining this action against Max Solutions. At ts 423, he said as follows:
So go with whatever you want, crazy or suspicious, but I really thought that Centrelink – after that phone call on 2 September ‑ that Centrelink and Max has got together and said, 'Okay, we're going to video him and anything that you can do exacerbate his things and (indistinct) you know, we will support you.' Now ‑ and I really thought ‑ and this is why I keep staying with the point, I really thought that when the lady threw the papers at me, it was just to videotape me for Centrelink, how I was picking up the papers. Call it crazy, yeah, fine. Crazy. 20 years I got my Disability Pension and everybody tries to take it off me, yeah?
Mr Kalsbeek also contended that, on 2 September 2014, a Max Solutions employee 'threw his papers at him' and he then had to pick them up before leaving the office. There is no evidence to support his contention that this occurred or, indeed, to give credence to his suspicions that Centrelink and Max Solutions were in some way acting in concert and collusion to conspire against him. His delusions in this regard are unfounded and unsubstantiated. I find that, by the time Mr Kalsbeek was required to commence his JSA on 22 September 2014, he had resolved to participate in a passive way with minimal obstruction. I accept his evidence that this became increasingly more overt by the fourth day, although it seems he was respectful to others present and was not sufficiently disruptive or belligerent to cause him to be removed from the group sessions.
Mr David Bowman Irvine
Mr Irvine is currently General Manager of Quality and Ethics for Max Solutions, having joined the company in 2004. He previously held the position of National Operations Manager. His current responsibilities include the area of governance including internal audit, quality assurance, complaints, incident management, document design development and oversight of quality assurance. Max Solutions operates in each state and territory and currently has about 2,000 employees who provide employment services to Federal and State government entities. It is also a registered training organisation.
In 2014, Max Solutions provided services to the Department of Education Employment Workplace and Relations and, relevantly, customers referred to it by Centrelink on behalf of the Department of Human Services. The Department subsequently became known as the Department of Jobs and Small Business.
At the relevant time in 2014, Max Solutions provided services to Centrelink customers pursuant to an employment services deed referred to as the Job Services Australia Contract.
Mr Irvine described Job Services Australia as a mainstream employment service delivering employment services to short, medium and long-term unemployed people with different barriers and circumstances preventing them from potentially working. Max Solutions had an interface, which is a government system called an Employment Service System (ESS). It provided referrals from the Department of Human Services to an allocated initial appointment within the diary system called a Notice Board. The referral would contain a link to the job seeker's personal details and records, including a job seeker identification number.
Mr Irvine said customers are referred to Max Solutions after being classified by Centrelink to a relevant stream for services between 1 to 4. The higher the stream service, the more intense the level of service required, usually due to the greater level of disadvantage experienced by the job seeker.
On receipt of the referral, a business manager is responsible for ensuring that an employment consultant is dedicated to meeting the requirements of the job seeker and ensuring that the contractual responsibilities of Max Solutions are provided. The services include initial appointment, provision of a job seeker agreement, provision of training and services by way of (usually) group activities, including negotiation and preparation of an Employment Pathway Plan (EPP). In this process, the customer service guarantee is explained to the job seeker, together with an overview of the range of assistance that is to be provided. A Jobseeker Classification Instrument (JSCI) in the form of a questionnaire is completed with each customer to cover all relevant considerations.
Mr Irvine said there is regular contact with the job seeker as part of the different elements of service delivery that will be set out in an EPP. The EPP will include reference to any other training and different support services considered appropriate for the customer, including post-placement support and involvement with a health services officer.
Mr Irvine said that, if a customer was unfit to participate at Max Solutions the person was a granted an 'exemption'. This was the province of Centrelink and not something that Max Solutions could do.
On the other hand, if the customer was sick or unable to attend for an appointment, then a later date would be negotiated. If the absence was to be for an extended period of time, then Max Solutions would require an exemption to be recognised in the system. Otherwise, a medical certificate would be sufficient explanation. The exemption must be recorded on the system and this only occurs if it has been authorised and endorsed by the Department of Human Services (not Max Solutions).
In addition to the Job Services Australia Contract, Max Solutions had a Disability Employment Services Contract which required it to provide assistance to people with a range of disabilities. According to Mr Irvine, there are two programmes. Firstly, the Disability Management Service (DMS) for people with disabilities and injuries, and general circumstances that prevent them from engaging in work. Second, the Employment Support Service, for people with a permanent disability who will have the likelihood of the need for ongoing support within the workplace. People under the Disability Employment Service are also required to look for work as a condition of the receipt of benefits. This obligation will be recorded in the EPP for the person.
In 2014, Mr Irvine said that Max Solutions provided services to about 100,000 customers under the Job Services Australia contract, and about 7,000 within the Disability Employment Services contract. Mr Irvine explained that, because of the complexities of dealing with the customers, Max Solutions looked to hire experienced people from the service industry. It was a common theme that its customers 'didn't want to be there' with an overriding consideration and concern that their actual benefits could be suspended for a period of non-payment if they had not participated in the scheme. Mr Irvine said (ts 457):
Every single day within our organisation, our staff are facing hostile customers. That unfortunately can get to the extreme of people being verbally abused, racially vilified, or being assaulted and the far extreme, I hate to say, people with attempting to kill them.
Mr Irvine said that Max Solutions, by reason of the nature of the work, expected to and did receive complaints and took this part of their services under government contracts very seriously. Matters were escalated accordingly and, if necessary, to a safety committee and audit risk committee. The staff at the Innaloo branch also included a 'health services officer' who could be a qualified psychologist, an exercise physiologist, a case worker or a social worker. In 2014, there was a psychologist on staff available to Max Solutions customers at the Innaloo branch. In addition, customers, where necessary, were linked up with external providers of such services that were prioritised when necessary.
Mr Irvine confirmed that they had access to the Employment Services System as a registered provider. However, parts of the customer's records were not available to Max Solutions after the customer had left its service (I infer for privacy reasons). In cross‑examination, Mr Irvine accepted Mr Kalsbeek's frustration with having to sit through a letter writing class (given his alleged degrees – none of which were proved) but said the programme would be tailored to the actual needs of the group present at the time.
In cross-examination, Mr Kalsbeek referred to his own correspondence with Mr Irvine and asked questions seeking explanations with respect to those communications. Mr Irvine answered Mr Kalsbeek's questions directly and respectfully. Whether Mr Kalsbeek is better informed is moot?
In cross-examination, Mr Irvine explained that one of the factors which may have contributed to Mr Kalsbeek not being referred to specialist services earlier than occurred may have been the fact that, at the time, he was still assessed by Centrelink as not being qualified for a disability support pension, 'but having a greatly reduced work capacity'. He referred to pt 8 of the Eligibility, Referral and Commencement Guidelines (V5.1) which sets out the obligations on the JSA provider to 'continue to deliver appropriate stream services until the job seeker has commenced in DES'. It relevantly provides:
Disability Employment Services
If the job seeker has been referred to Disability Employment Services (DES) as a result of the ESAt being conducted, the JSA provider must continue to deliver appropriate Stream Services until the job seeker has commenced in DES. Once commenced in DES, the job seeker will be Effectively Exited from Stream Services.
In addition, Mr Irvine was taken to attachment C of the guidelines, which is concerned with circumstances where a job seeker who is originally referred under the Job Services Australia Contract is to be referred instead to Disability Employment Services. Mr Irvine said this was the provision by which Mr Kalsbeek was referred to another provider following the meeting he had with Ms Stewart on 1 October 2014. So, Mr Kalsbeek was referred directly by Max Solutions to atWork, being another disability management service provider with DES. Mr Irvine confirmed this can occur if there is a recommendation for DES programme within the JCA - which there was in Mr Kalsbeek's case.
Similarly, Mr Irvine was taken to 'recommended referral' on page 9 of the Job Services Australia Employment Services Guidelines (V2.0) which relevantly provides:
If the ESAt report recommends referral to DES, the Assessor will generally make the referral for the job seeker. Job seekers will be automatically Exited from Stream Services when they commence in DES. If the job seeker is unable to be immediately commenced in DES, they are eligible to continue receiving Stream Services.
Mr Irvine explained this contractual obligation on Max Solutions as being aimed at ensuring the continuity of service for the Department of Human Services if the recommended service is not available. It is 'about keeping people supported and assisted during that period of time until a suitable programme or the more suitable programme is available'.
Ms Shannon Jones
Ms Shannon Jones was a customer service officer employed by Max Solutions from 2014 to 2017. She occupied the front position as receptionist and was working on 2 September 2014. She had no independent recollection of dealing with Mr Kalsbeek on 2 September 2014, even after she had attempted to refresh her memory from the incident report of that date prepared by Ms Armstrong. Ms Jones confirmed that she dealt with complaining customers 'all day, every day' and that they often demonstrated levels of aggression and belligerence and therefore exposure to this type of behaviour was 'pretty much a daily occurrence for me'.
Ms Julie Muriel Stewart
In 2014, Ms Stewart was a regional manager at Max Solutions which included involvement with the Innaloo office. She was present in the office for a period of about two weeks during the absence of the site manager. During this time she dealt with Mr Kalsbeek on two separate occasions.
Ms Stewart first dealt with Mr Kalsbeek on 22 September 2014. Her memory was that Mr Kalsbeek was walking in an area where he should not have been and that he had something in his mouth (consistent with his own evidence that this was his practice to remind himself not to speak). She said he was agitated and kept saying that he should not be there and that he was taking Centrelink to court.
Ms Stewart said he had his paperwork there and, as she went to pick it up to look at it, he 'shoved' her in the left shoulder. She did not feel threatened, maybe because she was used to dealing with abusive clients. To de‑escalate the situation she suggested that he should leave, which he did.
On 30 September 2014, Ms Stewart prepared an incident report form, the content of which is consistent with her memory. Her record states that when Mr Kalsbeek pushed her, he told her not to touch his papers.
On the second occasion she dealt with Mr Kalsbeek, she prepared an Employment Pathway Plan with him which he signed 'underro duresso' on 1 October 2014.
In the incident report Ms Stewart also said that while she was in charge of the Innaloo office, Ms Stabback informed her that she had been contacted by the police about a complaint made by Mr Kalsbeek alleging that he had been assaulted 'by hitting him with the footstool'. This incident report form is not signed by either Ms Stewart or Ms Stabback, although the evidence is that Ms Stabback completed the form in her own words.
Ms Stewart agreed during cross-examination that she sat down at Ms Armstrong's computer (who was on leave), and that she did so to assist Mr Kalsbeek.
Ms Stewart gave evidence in relation to the error caused by Centrelink's system in 'not auto-populating'. Mr Kalsbeek himself has acknowledged this was actually a 'glitch in the Centrelink system. It had nothing to do with Max Solutions.
Ms Stewart explained, by reference to the general procedures, what occurred with respect to the way in which Max Solutions dealt with Mr Kalsbeek when he was referred by Centrelink. She was surprised that he had two assessments as to his work capacity from Centrelink because it was 'unusual that they would do two'. Normally they are normally done again after two years. Ms Stewart said in cross‑examination (ts 540):
It was deemed that he had a capacity to work but he would need specialist service through DMS. When Robert asked the difference between DES and DMS, DES is Disability Employment Service. So a person who has a permanent disability. DMS is Disability Management Service. So that might be someone that has an injury but that's not going to be long term. It's – with interventions, it can be fixed and get them to a normal work capacity. That was the DMS that you were referred to. So that ESAT must have deemed that Robert's injury wasn't permanent and he had some capacity – some capacity with a specialist provider to be able to achieve employment. The reason he came to us was obviously that day he lodged the intent to claim automatically they put you with a job active provider. There had been no assessment done on him that he needed specialist intervention. He – I think from memory, there was two exemptions on the system and somewhere there he had two assessments. Don't know why that happened. What happens when you're on an exemption, normally if you had an assessment and you were sent to DES and you weren't exempt at that period, there might be a month, two months, you would automatically go to a specialist provider. But because there's an exemption there's a glitch in the system, that that referral doesn't happen. And see the initial referral was his first intent to claim so he was sitting on Max's records. And then he went on exemption and the referral wasn't triggered because of the exemption. When he came to us, we should have manually triggered the referral.
In further evidence, Ms Stewart qualified her explanation on the basis that Max Solutions was also, at that time, a 'DES provider' in Innaloo. However, she said at the time Max Solutions was not a 'DMS provider'. They were then subject to a separate contract, whereas new DES and DMS are rolled into one contract for service providers. Ms Stewart went on to explain what happened by reference to the Centrelink system as follows (ts 544):
STEVENSON DCJ: So MFI 10, an email dated 10 March 2015 from Mr Lang, has been shown to you. If you just look at the document. The question is in relation to the statement in the last paragraph?---Yeah. So exactly what I have said where the - the - it didn't trigger in the system, which is a Centrelink system not a Max system.
A referral to DES that didn't auto-populate due to the jobseeker coming off suspension.
So when you're suspended on a medical exemption, for some reason, it doesn't auto-populate in the Centrelink system, and it says:
When Julie got involved, she noticed this and tried to refer him on to the appropriate service.
Which is exactly what I've said.
In summary, Ms Stewart said that the error was caused by Centrelink's computer system. She described it as (ts 545) 'a glitch in the system so that they'll have a referral to a DES, but because they put an exemption on, it holds off and it doesn't pick up when that exemption comes up. You've got to auto‑populate it'. Therefore, the issue was caused by the Centrelink system. The referral to DES did not auto-populate due to Mr Kalsbeek coming off suspension.
In further cross-examination Ms Stewart said that, although Mr Kalsbeek did have a referral to a disability provider he was still, in any event, required to participate in looking for work. This was because he had not been deemed ineligible to work and therefore exempt from the participation mutual obligation requirement of Centrelink.
On this basis, the Employment Pathway Plan dated 1 October 2014 was signed by Mr Kalsbeek after Ms Stewart read it with him. It was entered into in order to satisfy the job capacity requirement. For this reason it contained a provision that Mr Kalsbeek would attend an appointment with atWork Australia on 13 October 2014; and he agreed to search for work by contacting 10 employers per fortnight between 4 September 2014 and 31 December 2014 and to report these job search contacts to Centrelink as required.
Finally, Ms Stewart also confirmed that Max Solutions had no capacity to edit any of the documents on the Centrelink database. Ms Stewart denied that Mr Kalsbeek got excited when he allegedly showed her 'the edited version' of his job capacity assessment report on the computer. This alleged 'excitement' appears to be his alternative explanation for pushing (which he denied doing). Ms Stewart was adamant that she was 'shoved' in the left shoulder by Mr Kalsbeek on the first occasion of her dealing with him on 22 September 2014.
Ms Sandra Elizabeth Walsh
In 2014, Ms Walsh was an employment consultant with Max Solutions working with stream 3 and 4 job seekers in the Innaloo office. She too was exposed to anti-social behaviour by customers on many occasions in the course of her employment.
Ms Walsh had a slight memory of her dealing with Mr Kalsbeek. She recalled that there was no exemption from Centrelink to enable him to avoid his participation obligations and that he was advised to go back to Centrelink.
Ms Walsh was permitted to refresh her memory from file notes she made for Mr Kalsbeek on the Centrelink database. She confirmed that she saw Mr Kalsbeek on 4 September 2014 (according to the file note). The note indicates Mr Kalsbeek 'has no current exemptions and is on a Newstart Allowance with reduced work capacity of 8 – 14 hours. Has a medical certificate and has been advised to take to Centrelink as any further exemptions need to be approved from Centrelink not a JSA'. The note also identified the barriers based on their discussions at the time and has an intervention that Mr Kalsbeek was to take a medical certificate to Centrelink. At the time, Mr Kalsbeek stated his goal was to finish a law degree and, in the short‑term, to work in a music shop or lawyer's office.
Ms Walsh commenced discussions and preparation of an Employment Pathway Plan (EPP) with Mr Kalsbeek on 4 September 2014. The reason for this was because he was going to go to Centrelink to attempt to obtain a change of his circumstances. The EPP was not completed and signed until 19 September 2014. The EPP, under the heading 'Education and Training Activities', provided for acceptance by Mr Kalsbeek of the offer by Max Solutions 'to attend and fully participate in a MAX Employment Job Action Group over 5 x 2 hour sessions on 22/09 – 26/09 for a two hour period between 10 am and 12 pm'.
In cross-examination, Ms Walsh was taken to an incident report dated 10 March 2015. The report refers to Mr Kalsbeek allegedly disturbing the delivery of training by Ms Stabback. It also refers to Ms Stewart speaking to Mr Kalsbeek and that she actioned his referral to a DMS provider. Ms Walsh did not know whether she prepared the report or if she had been only asked to sign it.
In the course of cross-examination, Mr Kalsbeek's contended that a job capacity report on the Centrelink system had, at some stage, been edited or page 3 had been deleted.
Ms Walsh prepared a file note on 19 September 2014 noting Mr Kalsbeek attended and that she updated the EPP as to his attendance for training the following week, commencing 22 September 2014 for five days.
In the course of his re-examination of Ms Walsh, Mr Kalsbeek (with much excitement and fanfare) produced what appears to be page 1 and page 2 of the Employment Pathway Plan, updated to reduce the obligation to contact 10 employers per fortnight to 8 employers per fortnight.
Ms Walsh explained after provision of the pages (which Mr Kalsbeek had in his possession but did not discover) the conundrum with respect to EPPs being prepared on 4 and 19 September 2014 as follows (ts 612):
Are you able to assist Mr Kalsbeek to understand why that change may have been made?‑‑‑Yep, I can. This one that was signed on 04/09, you can see, Robert, that it has minimal information in - on it as required for your job search. It does not have as much detail as the one that was print - printed out for you two weeks later, on the 19th. That would have been done, because as I've said before, we have contractual requirements with Max Employment and also Centrelink, that when we see somebody, we - for the first time – we have to complete certain documentation and have certain items in it as per the requirements. Now, your question says why did it go from eight to 10. That number eight was chosen as a minimal amount for you considering your circumstances that you had told me about. And at the conclusion – I mean, with the – with the interview, I said, 'You need to go back to Centrelink to get another medical certificate.' So the one on 04/09 was the minimum that I could do ‑ ‑ ‑
Ms Kristina Stabback
Ms Stabback was formerly a registered nurse until her spine was fractured after she was attacked by a mental health patient in 2006. Because she could no longer work as a nurse, she obtained various certificates in training and assessment, career development, employment and community services.
In any event, s 15 of the Limitation Act provides a limitation period for actions relating to the publication of defamatory matter. Pursuant to this section, an action relating to the publication of defamatory matter cannot be commenced if one year has elapsed since the publication. Accordingly, as Mr Kalsbeek's action was commenced on 21 November 2017, his claim for alleged defamation is statute‑barred and must be dismissed.
Conclusion
For these reasons, Mr Kalsbeek's claims must be dismissed.
Subject to hearing submissions from the parties as to the nature of any costs order sought, costs should follow the event in the usual way.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MJ
Associate to Judge Stevenson21 DECEMBER 2018
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