| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : EQUAL OPPORTUNITY ACT 1984 (WA) CITATION : LAURENT and COMMISSIONER OF POLICE & ORS [2013] WASAT 10 MEMBER : JUDGE J ECKERT (DEPUTY PRESIDENT) SUBSEQUENTLY RECONSTITUTED BY JUSTICE J CHANEY (PRESIDENT) HEARD : 4 OCTOBER 2010 DELIVERED : 18 JANUARY 2013 FILE NO/S : EOA 2 of 2010 BETWEEN : GERALD JEAN-NOEL LAURENT Applicant
AND
COMMISSIONER OF POLICE & ORS
First Respondent
HARRY ARNOTT
Second Respondent
TROY DOUGLAS
Third Respondent
CORINNE EDWARDS
Fourth Respondent
BARBARA ETTER
Fifth Respondent
ANDREW FISHER
Sixth Respondent
(Page 2)
FRED GERE
Seventh Respondent
SCOT GILLIS
Eighth Respondent
KAREN JONES
Ninth Respondent
PAUL KOSOVICH
Tenth Respondent
BOB MORTON
Eleventh Respondent
MICHAEL PROCOPIS
Twelfth Respondent
DAVID SAYER
Thirteenth Respondent
ERIC SMITH
Fourteenth Respondent
PETER SNOWDEN
Fifteenth Respondent
KIM TRAVERS
Sixteenth Respondent
Catchwords: Equal opportunity - Discrimination on grounds of impairment - Victimisation - Whether proceedings frivolous, vexatious, misconceived, or lacking in substance - Whether abuse of process
(Page 3)
Legislation: Equal Opportunity Act 1984 (WA), s 66A, s 66A(3), s 66B, s 67, s 83(4), s 83(5), s 90(2), s 92(2), s 161
State Administrative Tribunal Act 2004 (WA), s 11(6), s 47, s 47(1)(a), s 47(2), s 49, s 50 Result: Application dismissed
Summary of Tribunal's decision: The applicant, Mr Gerald Laurent, made numerous complaints to the Commissioner for Equal Opportunity against 16 respondents. The Commissioner dismissed the complaints as misconceived and Mr Laurent required the Commissioner to refer the matter to the State Administrative Tribunal. The respondents applied to strike out the proceedings on the ground that they were frivolous, vexatious, misconceived and lacking in substance, and were an abuse of process. The grounds on which the claims were sought to be struck off were that they raised issues outside the Tribunal's jurisdiction, failed to identify acts capable of amounting to unlawful discrimination and were attempts to relitigate matters that had been struck out by the Tribunal in earlier proceedings on the basis that they were misonceived.
The Tribunal agreed that many of the contentions by the respondent were correct. In particular, the Tribunal found that, in his very lengthy statement of issues, facts and contentions, none of the facts asserted were capable of supporting a finding of the necessary causal connection between Mr Laurent's alleged impairments and the conduct, or in the case of his victimisation claim, between the fact that he had made a complaint and the conduct complained of. Accordingly the claims were dismissed.
Category: B
Representation: Counsel:
Applicant : Self-represented
First Respondent : Ms MJ Paterson
Second Respondent : Ms MJ Paterson
(Page 4)
Third Respondent : Ms MJ Paterson
Fourth Respondent : Ms MJ Paterson
Fifth Respondent : Ms MJ Paterson
Sixth Respondent : Ms MJ Paterson
Seventh Respondent : Ms MJ Paterson
Eighth Respondent : Ms MJ Paterson
Ninth Respondent : Ms MJ Paterson
Tenth Respondent : Ms MJ Paterson
Eleventh Respondent : Ms MJ Paterson
Twelfth Respondent : Ms MJ Paterson
Thirteenth Respondent : Ms MJ Paterson
Fourteenth Respondent : Ms MJ Paterson
Fifteenth Respondent : Ms MJ Paterson
Sixteenth Respondent : Ms MJ Paterson
Solicitors:
Applicant : Self-represented
First Respondent : State Solicitor for Western Australia
Second Respondent : State Solicitor for Western Australia
Third Respondent : State Solicitor for Western Australia
Fourth Respondent : State Solicitor for Western Australia
Fifth Respondent : State Solicitor for Western Australia
Sixth Respondent : State Solicitor for Western Australia
Seventh Respondent : State Solicitor for Western Australia
Eighth Respondent : State Solicitor for Western Australia
Ninth Respondent : State Solicitor for Western Australia
Tenth Respondent : State Solicitor for Western Australia
Eleventh Respondent : State Solicitor for Western Australia
Twelfth Respondent : State Solicitor for Western Australia
Thirteenth Respondent : State Solicitor for Western Australia
Fourteenth Respondent : State Solicitor for Western Australia
Fifteenth Respondent : State Solicitor for Western Australia
Sixteenth Respondent : State Solicitor for Western Australia
Case(s) referred to in decision(s):
Laurent v Commissioner of Police 68 SR (WA) (2009); [2009] WASAT 254
State Electricity Commission of Victoria v Rabel [1998] 1 VR 102
Summerville and Department of Education & Ors [2006] WASAT 174
(Page 5)
Winter and Commissioner of Western Australian Police Service [2006] WASAT 87
(Page 6)
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 On 9 July 2009, the applicant, Mr Gerald Laurent, lodged a complaint with the Commissioner for Equal Opportunity (EO Commissioner) under the Equal Opportunity Act1984 (WA) (EO Act). The complaint was against the Commissioner of Police (Commissioner) and 15 other individuals, all employees of the Commissioner. An earlier complaint to the EO Commissioner about the Commissioner and one of the other respondents to the present proceedings, Senior Sergeant Paul Kosovich, was, at the time, the subject of proceedings in this Tribunal (the earlier proceedings) which were ultimately dismissed on the basis that it was obviously untenable - see Laurent v Commissioner of Police 68 SR (WA) (2009); [2009] WASAT 254 (the first decision). 2 The complaints the subject of the present proceedings were dismissed by the EO Commissioner as misconceived or lacking in substance. Pursuant to s 90(2) of the EO Act, Mr Laurent required the EO Commissioner to refer the complaints to the Tribunal. Following the service of a document constituting the applicant's statement of issues, facts and contentions (SIFC), the Tribunal listed a preliminary hearing to deal with any application by the respondents to have the proceedings struck out or dismissed, and also to clarify any outstanding matters including: a) the applicant's substantive application; b) which applications were referred to the Tribunal by the Equal Opportunity Commissioner so that the allegations validly before the Tribunal and that form the grounds for the applicant's substantive application in these proceedings are readily identifiable; and c) who are the proper respondents in the proceedings as referred to the Tribunal by the Commissioner; d) what information is available to assist the Tribunal to ascertain whether there is relevant evidence to support the allegations validly before it. 3 When the preliminary matters came on for hearing, the respondents applied to have the proceedings dismissed or struck out pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) on the basis that the proceedings, or parts of them, are: (Page 7)
(a) frivolous, vexations, misconceived or lacking in substance because they: (b) otherwise an abuse of process (section 47(1)(c) of the SAT Act) in that the proceeding: (i) attempts to relitigate matters that have already been determined by the Tribunal, contrary to an issue estoppel that has arisen; and (ii) was improperly commenced without leave, contrary to section 49 of the SAT Act, given that another proceeding of the same kind in relation to the same matter was struck out under section 47 of the SAT Act. 4 Mr Laurent also sought an order for the respondents to produce an extensive list of documents. The list comprised 109 items, some of which were single documents, but most of which were categories of documents. Shortly before the hearing, Mr Laurent wrote to the Tribunal asking that the Tribunal consider an application for leave pursuant to s 49 of the SAT Act for Mr Laurent to commence proceedings, given that the earlier proceedings had, by the time this matter was heard, been struck out. 5 At the hearing before Judge Eckert on 4 October 2010, Mr Laurent made an oral application (although as will be discussed below it is not clear whether he maintained that application at the end of the hearing) pursuant to s 50 of the SAT Act for a transfer of the proceeding to the Federal Court of Australia. 6 Following the hearing, Judge Eckert reserved her decision. Regrettably, ill health prevented her delivering her decision. Her ill health ultimately led to her retirement in mid 2011. Unfortunately, due to administrative oversight, the fact that the decision remained outstanding went unnoticed until the question of delivery of the decision was raised by the respondents in 2012. That is obviously a matter of embarrassment to the Tribunal on whose behalf I extend apologies to the parties for the obviously unacceptable delay in resolution of the proceedings. In the (Page 8)
circumstances, it was necessary for me to reconstitute the Tribunal pursuant to s 11(6) of the SAT Act for the purpose of the delivery of the reserved decision. In order to complete the hearing, I have read all of the materials on the file, and listened to the entirety of the recording of the hearing which took place on 4 October 2010.
The applicant's complaints 7 The document outlining the applicant's complaint to the EO Commissioner ran to 87 pages, and comprised 601 paragraphs. The EO Commissioner wrote to Mr Laurent in response, noting that his covering letter sent with his complaint stated that 'This matter is allocated to trial at the SAT' and observing that 'from the volume of information provided it is impossible to tell what allegations have already been made to the Equal Opportunity Commission and then referred to the State Administrative Tribunal'. The EO Commissioner requested Mr Laurent, if he wished to raise new allegations, to: 8 Mr Laurent responded to the EO Commissioner on 8 September 2009. He alleged that '… the list of officers … have conspired to progress false allegations of criminality to effectively terminate my employment, caused me numerous detriments and suffering of injury, impairments, criminality, negligence, discrimination and victimisation'. 9 The letter continued: WA Police have discriminated by not taking into consideration injury/impairment that I suffered as a result of their actions. 1. They proceeded to cause me to suffer trauma that exacerbated my injury and used unfair management pretext to further traumatise me to the point that I suffered further injury. 2. 'Old complaint and new complaint', they attempted to force me to retire on medical grounds or to resign my office and when they did not succeed. They reverted to use allegation of criminality, poor ethics and poor performance to terminate my employment. (Page 9)
3. They subjected me to high level risk that caused trauma and injury. 4. They then resorted to allegations of poor ethics and integrity in pretext to terminate my employment. 5. They sought poor work performance whilst not considering that I suffered injury. They then used false criminal allegations to have me suspended and to support this assertion then used misconceive[d] allegations to terminate my employment. 6. They made themselves the victims of complaints, even though they were subjecting me to serious detriments and victimisation. 10 His response continued for a further seven pages which ranged across a number of complaints as to his treatment by the Commissioner of Police leading to Mr Laurent's dismissal as a policeman, but not addressing, in any coherent way, any particular complaints against the 15 other respondents. 11 When the matter came before the Tribunal, Mr Laurent was directed to file a statement of the issues, facts and contentions which he says arise in these proceedings. The SIFC was filed in compliance with that order. It occupies 109 pages and contains 742 paragraphs, the last of which contains 96 subparagraphs (with one of those subparagraphs comprising 38 further subparagraphs). The extent to which the matter is dealt with that document overlaps with the document lodged as a complaint with the EO Commissioner in July 2009, or repeats or overlaps with matters dealt with in the three SIFCs filed in the proceedings dismissed in the first decision is too difficult to ascertain because of the volume of material, its lack of coherent structure and the fact that significant portions are incomprehensible. 12 In order to address that difficulty, the Tribunal ordered that Mr Laurent file a table (a template of which was provided to him to assist in the process) setting out with respect to each respondent: (Page 10)
(d) the page and paragraph number of the Commissioner of Equal Opportunity's report to the Tribunal whereby she referred that allegation to the Tribunal. 13 The document filed in compliance with that direction failed to clarify and particularise the complaints in any meaningful way. 14 It should be noted as well, that the EO Commissioner expressly declined to accept the 'out of time' component of Mr Laurent's complaint, that being a reference to the requirement of s 83(4) of the EO Act that complaints be made within 12 months after the date on which the contravention of the Act occurs. The EO Commissioner concluded that good cause had not been shown for her to accept any complaint out of time as she was empowered to do under s 83(5) of the EO Act. 15 Paragraphs 731 - 742 of the Mr Laurent's SIFC are headed 'New Complaints'. To the extent that they can be summarised, they appear to focus on the process which led to Mr Laurent's dismissal from the police service through a loss of confidence process commenced on 20 August 2008 and resulting in his termination of employment on 25 September 2009. In that context, however, matters date back well before July 2008 (being 12 months before the present complaint to the EO Commissioner). The 15 individual respondents to these proceedings are apparently police officers, or in one case an inhouse lawyer with the police service, who were either involved in the incidents relied upon as a basis for loss of confidence, or were involved in the loss of confidence process itself. Doing the best I can to understand Mr Laurent's complaints, it seems that he is alleging that the loss of confidence process, and various matters relied upon as grounds for dismissal in the context of that process, amounted to subjecting Mr Laurent to a detriment on the ground of his impairment or on the ground that he had made his earlier complaint under the EO Act. In that way, Mr Laurent alleges discrimination under s 66A or s 66B of the EO Act or victimisation within the meaning of s 67 of the EO Act.
The approach to s 47 of the SAT Act 16 The Tribunal's power under s 47 of the SAT Act was explained by Pritchard J in the first decision at [20] - [22] as follows: 20 When, as in the present case, an application is made at an interlocutory stage, it is appropriate to assume that all of the factual assertions made by an applicant will be made out, and to consider, from that perspective, whether the proceeding is frivolous, vexatious, misconceived, or lacking in substance: Ambrus and (Page 11)
Churches of Christ Homes and Community Services Incorporated [2006] WASAT 141 (Ambrus) at [16] (Deputy President Judge Chaney, as he then was). Even then, however, caution should be applied in the exercise of the power in s 47. If there is a serious question of fact to be determined, or if factual issues are likely to be affected by evidence in the possession of a respondent, that factor may render it inappropriate to dismiss the proceeding pursuant to s 47 of the SAT Act. In discrimination cases, it is not uncommonly the case that the evidence led by a respondent and crossexamination of the respondent's witnesses may provide the causative link between the conduct complained of and the ground of discrimination alleged: see Soelberg and Commissioner of Police and Ors [2007] WASAT 214 at [49] (Deputy President Judge Eckert), and Margan v University of Technology, Sydney(EOD)[2003] NSWADTAP 65 at [11]. 21 In relation to its exercise at the interlocutory stage, the power in s 47 of the SAT Act has been viewed as analogous to the power of courts to summarily dismiss a proceeding when the pleadings fail to disclose any reasonable cause of action. The principles applicable to the exercise of that power have been considered applicable to the exercise of the power in s 47. In Ambrusat [8], Deputy President Judge Chaney observed that: … the principle to be applied in an application such as this is at least analogous to the principle explained by Barwick CJ in General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125 which requires that, in order to strike out a proceeding, it should be demonstrated that it is so obviously untenable that it cannot possibly succeed or is manifestly groundless or that it discloses a case which the court is satisfied cannot succeed. 22 See also Turner at [43] [48]. A similar approach has been adopted in relation to s 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act): see, for example, Forrester v AIMS Corporation [2004] VSC 506 at [17] [28] (Kaye J), applying State Electricity Commission of Victoria v Rabel[1998] 1 VR 102 (Rabel). 17 Her Honour also noted that it is open to strike out part of a proceeding under s 47 of the SAT Act instead of striking out the whole proceeding. I respectfully adopt Her Honour's statements as to the proper approach to s 47 of the SAT Act. (Page 12)
Should the application be stuck out? 18 The respondents contend that parts of the proceeding are beyond the jurisdiction of the Tribunal, and should thus be struck out pursuant to s 47(1)(a) of the SAT Act. They note that large portions of the applicant's SIFC appear to raise issues of negligence, and in particular identified the following paragraphs [107], [108], [129], [359], [360], [401], [452] - [541], [583] - [672], [674] - [708]. 19 They also note that the statement of issues, facts and contentions contains allegations concerning issues of corruption - see for example SIFC [132], [142], [228] - [260], [386] - [400], [402] - [404], [426], [712] - [721]. They point to issues raised relating to 'protection of civil liberties' - for example SIFC [140], [429] and [430], and issues which were the subject of an application before the Western Australian Industrial Relations Commission (WAIRC) - see for example SIFC [104], [128], [130], [131], [145] - [154], [405], [426], [453], and [674] [708]. 20 The respondents observe, correctly, that the Tribunal's jurisdiction is limited to the complaint referred to it by the EO Commissioner - see Winter and Commissioner of Western Australian Police Service [2006] WASAT 87 at [4], and Summerville and Department of Education & Ors [2006] WASAT 174 at [11]. The EO Commissioner having declined to accept complaints relating to matters occurring more than 12 months before 9 July 2009, the respondents note that allegations relating to matters occurring before 9 July 2008 appear to be relied upon as discriminatory conduct in the applicant's SIFC and they identify SIFC [89], [93], [110], [194] - [202], [203] [208], [209] - [408], [425] - [441], [452] - [538], [583] - [656] and [735] - [736] as examples. 21 I accept the respondents' submission that the Tribunal does not have jurisdiction to determine issues of negligence, corruption, or the protection of civil liberties. Nor is it open to the Tribunal to consider allegations of discriminatory conduct occurring prior to 9 July 2008. It may be that issues which arise before this Tribunal in its equal opportunity jurisdiction and the WAIRC in its industrial jurisdiction, may overlap. For example, events which lead to an unfair dismissal may also constitute discrimination or victimisation. For example, paragraphs 145 to 152 of the SIFC concern an allegation of requiring Mr Laurent to respond to the numerous allegations in the loss of confidence process in an unreasonable time given his injuries. That requirement would appear to be alleged as an act of victimisation in the 'new complaints section' of the SIFC at paragraph 742(14)(k)(vii). (Page 13)
22 Accordingly, to the extent that the various paragraphs alleging issues of negligence, corruption, or failure to protect civil liberties, which are identified above, are relied upon as acts of discrimination or victimisation, they should be struck out. I would not strike out the paragraphs referring to issues before the WAIRC simply on the basis that they were issues before that body, although there may be other bases upon which those paragraphs should not be allowed to stand. 23 It is also clear that, to the extent that the applicant relies upon events occurring prior to 9 July 2008 as acts of discrimination or victimisation, they are not matters that can be dealt with by the Tribunal in these proceedings. Such matters might appropriately be included in a SIFC if they provide background facts against which conduct occurring within the permitted time prior to complaint is to be understood. It is not necessary, for reasons which will become apparent, to endeavour to undertake an analysis of the extent to which the various paragraphs identified by the respondent might stand as recitals of background facts as distinct from substantive allegations of discriminatory conduct in respect of which relief is sought. 24 The respondents also contend that the proceedings are misconceived or lacking in substance. As Pritchard J observed in the first decision at [23], the term 'misconceived' connotes a misunderstanding of legal principle while the term 'lacking in substance' connotes an untenable proposition of law or fact - State Electricity Commission of Victoria v Rabel [1998] 1 VR 102. 25 The respondents contend that many of the allegations contained in the applicant's SIFC are to the effect that his complaint was that he was not treated more favourably than persons without his impairment would have been treated in the same circumstances. As Pritchard J accepted in the first decision, there is no requirement under the EO Act that a person with an impairment be treated more favourably than a person without such an impairment (at [41]). The respondents rely in particular on the applicant's SIFC at [735] - [736]. Although I would not characterise all of those paragraphs as allegations of a lack of more favourable treatment than a person without impairment, some may fall into that category. Even if that is so, the question will arise as to whether allegations of a lack of consideration or concessions to cater for injury or impairment might conceivably amount to indirect discrimination as explained in s 66A(3) of the EO Act. Because of the view which I have reached as to the claims as a whole, is not necessary for any detailed analysis of that possibility to be (Page 14)
undertaken in relation to the particular paragraphs objected to by the respondents on this ground. 26 The respondents also contend that the proceedings are misconceived because, even if all factual contentions in the claim were established, a causal link between the alleged discriminatory conduct and the impairment would not be established. The most that is said by the applicant in his SIFC is that various people knew of his back injury, his skin rash and his stress. Precisely which of these injuries or impairments are said to have been the ground upon which the alleged discriminatory acts occurred is not clear. Many of the allegations appear to be directed to the proposition that actions of the Commissioner, presumably through the respondents, caused Mr Laurent's health problems. The substantial portions of the SIFC dealing with his skin rash (and in effect his employer's alleged negligence) very clearly fall into this category. Allegations that conduct caused an injury are very different from allegations that, because of an impairment, a person was treated less favourably than others without that impairment. 27 In my view, nothing in Mr Laurent's SIFC, assuming the factual assertions to be made out, supports a conclusion that any of the conduct complained of occurred on the ground of his impairment. In that sense, the claims are misconceived. 28 As already noted, Mr Laurent's complaint is not only one of discrimination, but also of victimisation. In the first decision at [67], Pritchard J noted that, in order to establish victimisation it must be established that: 1) the person victimised suffered, or was threatened with, a detriment; 2) the detriment alleged must be a disadvantage that is substantial and not trivial; 3) the victimiser subjected the person victimised with the detriment, or threatened to do so; 4) a dominant or substantial reason for the victimiser's conduct was that the person victimised has made or proposes to make a complaint under the EO Act, or has brought or proposes to bring, proceedings against the victimiser under the EO Act (or one of the other grounds for victimisation in s 67(1)). That is, it must be established that: (Page 15)
• the complaint, or intended complaint, must be the dominant or substantial reason for doing the act of victimisation; • there must be an intention to cause detriment; and • there must be a causal link between the conduct of the victimiser and the detriment suffered. In the absence of facts capable of proving intention to cause the detriment, or facts capable of supporting such an inference, there will be no basis for a contention of victimisation. 29 In certain portions of his SIFC, Mr Laurent identifies conduct which he describes as victimisation. For example, at [194] - [196], the applicant describes an incident where one of the respondents, Paul Kosovich, approached Mr Laurent and 'claimed that he could smell alcohol and proceeded to grab, lift, the appellant's right hand to his face to smell the appellant'. Paragraphs [197] [214] deal with allegations that Mr Kosovich made a remark about Mr Laurent's stomach and 'lent over to his left grabbing the appellant's stomach with both hands and with a slap and said "Goodness Gerald" as he gave him a grin'. Mr Laurent also describes as discrimination, conduct surrounding a requirement that he use an upper personal storing locker which aggravated his back injury. That was a complaint apparently dealt with in the first decision where, at [91], Pritchard J concluded that that matter could not constitute a disadvantage which was substantial and not trivial for the purpose of victimisation or a victimisation claim. 30 The matters referred to above, described by Mr Laurent as 'victimisation' do not give rise to a detriment which is substantial and not trivial. They are incapable of amounting to victimisation for the purposes of s 67 of the EO Act. But as I have noted above, it would appear the substance of Mr Laurent's 'new claims' is, at least in part, that the manner in which he was dealt with in the loss of confidence procedure was victimisation. The difficulty with that claim is that, like the claims of discrimination, none of the facts asserted support a finding that a dominant or substantial reason for the conduct was the fact that a complaint had been made under the EO Act. As Pritchard J observed in the first decision (at [110]) it is a misconception to argue that because a complaint was made under the EO Act and the respondents knew of that complaint, any conduct by the respondents which caused a detriment must necessarily have been engaged in because he had a complaint to the EO Commissioner. I accept the respondents' submission that, on that basis, the complaints of victimisation are misconceived. (Page 16)
31 The respondents also contend that the complaints should be dismissed on the basis that they constitute an abuse of process. They argue that much of the substance of the applicant's claims set out in the three SIFCs in the previous proceedings is replicated in the present SIFC. The fact that Mr Laurent sought leave under s 49 of the SAT Act, which is applicable where 'another proceeding of the same kind in relation to the same matter' has been previously dismissed, tends to support the respondent's contention. 32 It is apparent from the reasons of Pritchard J in the first decision, and from the fact that the first 730 paragraphs of his SIFC deal with matters which are not 'new complaints', that Mr Laurent has sought to reagitate the same issues as were dealt with and dismissed in the earlier decision. 33 Mr Laurent argues that 14 of the 16 respondents in the present proceedings were not subject of the complaint in the original proceedings. To the extent that past matters involve those parties, he would argue that they have not been previously the subject of complaint or any adjudication of such complaints. 34 The original complaint was brought against the Commissioner of Police and Mr Paul Kosovich. As Pritchard J found, the complaints against the Commissioner were based on vicarious liability under s 161 of the EO Act, rather than on any personal conduct by the Commissioner of Police. Adding the persons whose conduct is impuned as parties to the complaint does not give the complaints some different character (as against the Commissioner and Mr Kosovich) from those brought against them based on the same conduct in the earlier proceedings. To the extent therefore, that the complaints in the present matter were the subject of complaint in the earlier proceedings, any attempt to relitigate those complaints which have been found to be misconceived amounts to an abuse of process. To that extent the claims which replicate the earlier proceedings, so far as they are made against the Commissioner of Police and Mr Kosovich, amount to an abuse of process. 35 So far as the other respondents are concerned, the claims are fatally flawed. Without endeavouring to identify each claim against each respondent (which is not possible from the papers in any event), it is clear that many of them are out of time, and none of them establish a causal link between conduct complained of and Mr Laurent's impairment. In that sense they are misconceived or lacking in substance. (Page 17)
36 In the circumstances, the respondents' application that the proceedings be dismissed as misconceived or lacking in substance should succeed.
Mr Laurent's applications 37 As mentioned above, Mr Laurent made an application for leave under s 49 of the SAT Act to commence a proceeding of the same kind that which had been earlier dismissed or struck out under s 47 of the SAT Act. 38 At the hearing, Mr Laurent was reluctant to concede that that application necessarily acknowledged that matters dealt with in these proceedings were the same as matters dealt with in the earlier proceedings. As I have found, that is clearly the case. No cogent grounds were put forward for the grant of leave, and in any event, my conclusions in relation to dismissal of the claim are also an answer to the leave application. That application should be dismissed. 39 Mr Laurent also sought production of a vast array of documents or categories of documents in order to support his claim. Even if the claim had not been struck out, I would not have been inclined to order production of those documents. Many of the issues to which the documents appear to be directed are irrelevant to any possible claim of discrimination or victimisation. Any order for production of documents would require a clear explanation as to the relevance of the documents sought. No attempt to deal with the matter on that basis was made at the hearing and the application effectively falls away. 40 At the hearing, Mr Laurent made an oral application under s 50 of the SAT Act that the matter be referred to the Federal Court of Australia. It became unclear during the course of the hearing whether, in light of observations by Eckert J as to difficulties with the application, Mr Laurent in fact maintained it. To the extent that it was maintained, however, it should be dismissed. The Federal Court of Australia has no jurisdiction to deal with complaints made to the EO Commissioner in Western Australia, and it could not be said that these matters 'would be more appropriately dealt with by' the Federal Court.
Orders 1. The proceedings are dismissed pursuant to s47(1) of the State Administrative Tribunal Act 2004 (WA). (Page 18)
2. The applications by Mr Laurent for production of documents, leave pursuant to s49 of the State Administrative Act 2004 (WA), and transfer of the proceedings under s50 of the State Administrative Tribunal Act 2004 (WA) are dismissed. |