Karnauchow v State of NSW (Corrective Services NSW)

[2024] NSWCATAD 294

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Karnauchow v State of NSW (Corrective Services NSW) [2024] NSWCATAD 294

Hearing dates:

10 July 2024, 20 September 2024

Date of orders:

3 October 2024

Decision date:

03 October 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

L Andelman, Senior Member

Decision:

(1)   Pursuant to s 53 of the Civil and Administrative Act 2013 (NSW) the name of the respondent is amended to State of NSW (Corrective Services NSW).

(2)   Pursuant to s 50(2) of the Civil and Administrative Act 2013 (NSW) the issue can be dealt with on the papers.

(3)   Leave is refused.

Catchwords:

HUMAN RIGHTS –- victimisation - leave to proceed – complaint – amended complaint

Legislation Cited:

Anti-Discrimination Act 1977

Civil and Administrative Act 2013

Cases Cited:

Jones & Anor v Ekermawi [2009] NSWCA 388

Karnauchow v State of NSW, NSW Department of Communities and Justice (Corrective Services) [2023] NSWCATAD 326

Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20

Category:

Procedural rulings

Parties:

Andreas Karnauchow (Applicant)
State of NSW (Corrective Services NSW) (Respondent)

Representation:

Applicant (Self-represented)
M Naumovski (Senior Solicitor, NSW Communities and Justice) (Respondent)

File Number(s):

2024/00206292

Publication restriction:

N/A

REASONS FOR DECISION

1. Mr Karnauchow made a complaint to the Anti-Discrimination Board NSW (ADB) on 1 September 2022. The complaint was of discrimination on the grounds of disability and homosexuality in the provision of goods and services against the respondent. The complaint also alleged victimisation.

2. The matter was determined in Karnauchow v State of NSW, NSW Department of Communities and Justice (Corrective Services) [2023] NSWCATAD 326 (“Karnauchow”).

3. On 28 February 2024, Mr Karnauchow made another complaint to the ADB against the respondent on the same grounds as well as a claim of victimisation.

4. On 16 May 2024, ADB received a request from Mr Karnauchow to amend the complaint. Mr Karnauchow requested that his complaint be amended pursuant to s91C of the Anti-Discrimination Act1977 (NSW) (“the Act”). but in the event that this was not possible for the matter to be referred to the Tribunal under s93A of the Act.

5. ADB had made the decision to decline the complaint prior to considering the amended complaint on 16 May 2024. It referred the complaint to the Tribunal pursuant to s92(1)(a)(i) and (v) of the Act.

6. At the leave hearing, Mr Karnauchow submitted that the Tribunal in considering whether leave is to be granted pursuant to s 96 of the Act should consider his amended complaint to ADB.

Name of the respondent

7. The Tribunal raised with the parties whether the respondent’s correct name is State of New South Wales (NSW Department of Communities and Justice)(Corrective Services). The respondent provided a written submission which stated that the respondent’s correct name was “State of NSW (Corrective Services NSW)”. The respondent also consented to this question being dealt with on the papers pursuant to s 50(2) of the Civil and Administrative Act 2013 (NSW) (“CAT Act”). No submissions were received from the applicant.

8. I have considered the submission provided by the respondent and I am satisfied that the correct name of the respondent is State of NSW (Corrective Services NSW) and that this issue can be dealt with on the papers pursuant to s 50(2) of the CAT Act and will make these orders accordingly.

Statutory Framework

9. Mr Karnauchow relies on ss 50(1)(a) and (1)(b) of the Act:

(1) It is unlawful for a person (the discriminator) to subject another person (the person victimised) to any detriment in any circumstances on the ground that the person victimised has—

(a) brought proceedings against the discriminator or any other person under this Act,

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,

…

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

10. A complaint is defined in s 87 as:

"complaint" means a complaint made under section 87A and includes a matter referred to the Tribunal as a complaint under section 95 (2).

11. Subdiv 1 and 2 of Div 2 of Pt 9 of the Act deals with lodgement and making of complaints. Section 93A states:

(1) If the President has given a complainant a notice under section 87B (4) or 92, the complainant may, within 21 days after the date on which the notice was given, require the President, by notice in writing, to refer the complaint to the Tribunal.

(2) On receipt of a notice under subsection (1) from the complainant, the President is to refer the complaint to the Tribunal.

12. Section 91C deals with amendment of complaint:

(1) If, at any time after a complaint is made and before the complaint is declined, terminated or otherwise resolved by the President, or referred to the Tribunal--

(a) the person making the complaint seeks to amend the complaint, or

(b) the President becomes aware of information that could conveniently be dealt with as part of the complaint,

the person making the complaint is to be offered the opportunity to amend the complaint.

(2) An amendment may be made in writing but, if further written material is already in the possession of the President or the Board, the President may treat the written material as if it formed part of the complaint.

(3) If a complaint is amended at any time, the respondent must be informed in writing by the President of the substance of the amendment and, if the effect of the amendment is to cause the complaint to be made against further or other persons, they must be informed in writing of the complaint as amended.

(4) Section 89B applies to the amendment of a complaint in the same way as it applies to the making of a complaint.

13. Section 92(1)(a) states:

(1) If at any stage of the President’s investigation of a complaint—

(a) the President is satisfied that—

(i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or

(ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or

(iii) the nature of the conduct alleged is such that further action by the President in relation to the complaint, or any part of the complaint, is not warranted, or

(iv) another more appropriate remedy has been, is being, or should be, pursued in relation to the complaint or part of the complaint, or

(v) the subject-matter of the complaint has been, is being, or should be, dealt with by another person or body, or

(vi) the respondent has taken appropriate steps to remedy or redress the conduct, or part of the conduct, complained of, or

(vii) it is not in the public interest to take any further action in respect of the complaint or any part of the complaint, or

14. Section 96(1) requires the complainant to be granted leave to proceed to the Tribunal if the complaint is referred to the Tribunal on the requirement of a complainant under s 93A(1).

The complaint

15. Mr Karnauchow submitted that the Tribunal ought to consider his amended complaint. The amended complaint consisted of handwritten notes and annotations made on the complaint form, including the words: “This form has been amended pursuant to s91C of the Act.” Mr Karnauchow stated that he continued to rely on all the documents he attached to the complaint, apart from the first page which is a handwritten submission, which is amended.

16. Mr Karnauchow stated:

Please allow me to resubmit as an amended complaint. I no longer seek compensation apart from conduct money I will also seeking for mediation. If you are unable to employ s 91C amended complaint please refer the matter to NCAT.

17. Some words in the amended complaint form deleted words from the complaint form and added additional words. For example in response to the question “What happened?” The amended complaint added new words to address the victimisation claim:

…unlawful victimisation due to making a previous discrimination complaint and had been subject to detriment amounting to many acts of victimisation delays subject to mailing time and my incorrect details given to a ADNSW due to mental health affected by victimisation acts.

18. However the complaint also made allegations of victimisation:

I have been victimised due to my previous ADNSW complaint in that Correctional Centre and had made ADNSW complaints against CSNSW. I am now treated far more unfairly unfavourably then then initial complaint that I lodged in September 2022. Far too many requests are refused or not actioned. My kiosk password keeps getting blocked. Impeded access to a computer, false charges laid on me.

19. I find that in this case, the ADB determined to terminate the complaint prior to it receiving the amended complaint. As such the Tribunal’s jurisdiction as set out in s 96 is confined to the “complaint that is referred”. The ADB made the referral on the explicit request of the complainant.

20. Mr Karnauchow identified the real issues in dispute to be victimisation. Victimisation was squarely raised in the complaint. I deal with this issue below.

Leave for a complaint to proceed

21. The Tribunal must approach the question of whether leave is to be granted by considering what is “fair and just” in the particular circumstances, with an onus falling on the complainant to establish that leave should be granted; Jones & Anor v Ekermawi [2009] NSWCA 388 (“Jones”) at [59]. The criteria set out in s 92(1)(a) of the Act is relevant to the discretion in s 93A but is not determinative; Jones at [60].

22. Mr Karnauchow lists 91 specific complaints of victimisation. The majority of the complaints are in regard to mail being opened, not being provided with goods or goods and serviced being delayed such as a second mattress, medication, photocopying, evidence tub in the cell, denial of access to computers, links on computers, technological tools, learning, transfer to Mid North Coast instead of Clarence Correctional Centre, detriment of being locked up in cell after making of complaints. There were allegations that charges were laid against him by the respondent to hide the victimisation he was experiencing. Mr Karnauchow’s allegations of detriment are profuse.

23. It is alleged that as a result of the respondent’s conduct, Mr Karnauchow experienced substantial chest pains and had to attend hospital and has been on medication for depression.

24. Mr Karnauchow has made numerous external complaints about some of this conduct to the Local Court, Supreme Court of New South Wales, the Minister, Health Care Commission and NSW Ombudsman.

25. Mr Karnauchow requested and was granted a transfer to Goulburn Correctional Centre on 29 January 2024. During the leave hearing he expressed satisfaction with the manner in which he was being treated but he seeks for those in Mid North Correctional Centre to be held to account for the victimisation he experienced as a result of “asking to access the computer rooms”.

26. Mr Karnauchow submitted that there are four elements that must be satisfied before a complaint of victimisation can be substantiated. First, the complainant must have done one of the things listed in s 50(1)(a) to (d). Secondly, the respondent must have caused the complainant to experience something. Thirdly, the complainant must have suffered some consequential ‘detriment’. Fourthly, that detriment must have occurred “on the ground that” the complainant did one of the things listed in s 50(1)(a) to (d). The submission was made in reliance on Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [8]. The respondent did not challenge this submission.

27. Mr Karnauchow submitted that he brought proceedings against the respondent under this Act in September 2022; s50(1)(a) of the Act and that later in 2022 and 2023 he gave evidence or information in connection with the proceedings against numerous employees of the respondent; s50(1)(b). The respondent did not deny these statements of fact.

28. The respondent did deny that it had caused Mr Karnauchow to suffer “detriment” or that if he did suffer “detriment” it was because he commenced proceedings or gave evidence or provided material during the proceedings. The respondent submitted that some of the detriment identified by Mr Karnauchow such as having his mail opened or being transferred between different correctional centres occurred pursuant to policies that applied to all prisoners and that Mr Karnauchow was treated no differently.

29. Turning to the matters in s92(1)(a). I do not consider that Mr Karnauchow’s complaint is frivolous or vexatious.

30. I do consider that large number of allegations in the claim are misconceived. This is because the allegations arise not because Mr Karnauchow made a complaint to the ADB but because he was transferred to the Mid North Coast Correctional Centre. Mr Karnauchow wanted to be transferred to the Clarence Correctional Centre. Allegation number 1 and 2 are that the Serious Offenders Review Committee (“SORC”) did not consider many of his submissions to move to Clarence Correctional Centre “which has adequate access to PC” (“personal computer”) to assist with his disability and instead sent him to Mid North Coast where there were no PCs for 6 months. The third allegation was that his letters were being opened.

31. Other complaints refer to access to the library, to technology aids, long time taken to access medical services, photocopy of papers, access to AVL room. These complaint arise because the facilities are “much worse” at the Mid North Coast Correctional Centre. The complaints about the poor access to facilities was because he was placed in Mid North Coast Correctional Centre.

32. There are other allegations which I consider to be in a different category, for example an allegation that Mr Karnauchow was moved to a different wing. The allegation is that two inmates fabricated a story that they wanted to kill Mr Karnauchow.

33. There was also complaints about not having access to medical treatment and not receiving medication. There is no alleged causation between the denial of Melatonin and the complaint to ADB in 2022. There is another allegation that certain employees of the respondent made unfair charges against him.

34. Mr Karnauchow stated in the complaint on numerous occasions that he was victimised because “he wanted access to a PC”. In those instances he was referring to actual requests he made to access a PC in 2023. There was no allegation that he was discussing his previous complaint in 2022 that involved a claim that he was denied access to a PC or that there is any objective evidence that a person acted in a manner that was detrimental to Mr Karnauchow because he made the previous complaint in 2022. Mr Karnauchow believed that the conduct occurred because his mail was opened and the prison officers were aware of his complaint to ADB and communications he was having with the Tribunal and the respondent.

35. Mr Karnauchow did not address the matters in s92(1)(a) of the Act. He made no submissions that he would lead evidence from other inmates or employees or officers of the respondent. Mr Karnauchow’s claims were that the Tribunal should accept his word for why things occurred. I am not satisfied that if leave was granted that Mr Karnauchow would lead evidence to overcome the onus placed on him to prove the victimisation claim on the balance of probabilities. I am also not satisfied that Mr Karnauchow has met his onus in this application seeking leave to proceed pursuant to s 96 of the Act.

36. Mr Karnauchow’s complaint is a list of things that has happened to him that he considers to be a detriment. Mr Karnauchow submitted that all these things happened to him because he has previously made a complaint to ADB and given evidence. Mr Karnauchow asserted that because his mail is opened, everybody was aware of his prior complaint and therefore it is victimisation.

37. The Exhibits attached to the complaint are mostly letters to and from the respondent in which he repeated the same or similar complaints. I do not consider that this evidence, taken at its highest is able to satisfy the onus on to prove that the “detriment” occurred “on the ground” of his prior complaint to ADB in 2022.

38. Mr Karnauchow stated that he has “four legal cases on foot”. Mr Karnauchow stated that he considered that the Karnauchow decision was wrong and he has lodged an appeal. The Karnauchow decision deals with a number of factual disputes raised in this complaint.

39. The first is the allegation that his mail is opened, which Mr Karnauchow claimed is victimisation. In Karnauchow the Tribunal found that the respondent’s policies require it to open and inspect all mail to inmates apart from mail from a legal practitioner [85] and rejected Mr Karnauchow’s claim that it was discrimination. The second claim was in regard to access to a laptop. The Tribunal found that during the complaint period, which was 1 September 2021 to 1 September 2002, the respondent did not discriminate against Mr Karnauchow [83].

40. I find that that the “fair and just” decision in this case is to refuse leave. I do so because many of the allegations involve detriment that are not on their face “on the ground of” the previous claim in the ADB or Mr Karnauchow’s involvement in it. I am not satisfied that if leave was given to some of the allegations to progress that Mr Karnauchow would be in a position to lead evidence, for example, two inmates fabricating a story about him. He made no submission as to how he would satisfy the onus placed on him to prove such a claim. Furthermore, there is no connection between this allegation and the ADB complaint.

41. I am also of the view that many of Mr Karnauchow’s allegations involve the same factual matters previously dealt with in the Karnauchow decision and are the subject of an appeal. Mr Karnauchow seeks to re-agitate matters previously determined by this Tribunal.

Orders

42. I make the following orders:

1. Pursuant to s 53 of the Civil and Administrative Act 2013 (NSW) the name of the respondent is amended to State of NSW (Corrective Services NSW).

2. Pursuant to s 50(2) of the Civil and Administrative Act 2013 (NSW) the issue can be dealt with on the papers.

3. Leave is refused.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 03 October 2024