Laurent v Commissioner of Police [No 2] - [2010] WASCA 235

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: LAURENT -v- COMMISSIONER OF POLICE [No 2] [2010] WASCA 235

CORAM: PULLIN JA
NEWNES JA

HEARD: 23 NOVEMBER 2010

DELIVERED : 23 NOVEMBER 2010

FILE NO/S: CACV 10 of 2010

BETWEEN: GERALD JEAN-NOEL LAURENT
Appellant
AND
COMMISSIONER OF POLICE
First Respondent
PAUL KOSOVICH
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram  :JUDGE J PRITCHARD (DEPUTY PRESIDENT)
Citation  :LAURENT and COMMISSIONER OF POLICE [2009] WASAT 254
File No  :EOA 73 of 2007

Catchwords:

Practice and procedure - Notice to show cause why appeal should not be dismissed - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant:     In person
First Respondent           :     Ms M J Paterson
Second Respondent      :     Ms M J Paterson

Solicitors:

Appellant:     In person
First Respondent           :     State Solicitor for Western Australia
Second Respondent      :     State Solicitor for Western Australia

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

Laurent and Commissioner of Police [2009] WASAT 254

PULLIN JA: This appeal has been listed as a result of a registrar's notice for the appellant to show cause why the appeal should not be dismissed under r 43(2)(g)(ii) on the basis that the appellant has failed to comply with r 32(4), (5) or (6). The appellant was also given notice that the appeal was listed to show cause why the appeal should not be dismissed under r 43(2)(g)(i) on the basis that none of the grounds have a reasonable prospect of success,
Pursuant to s 105(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the appellant has appealed against a decision of the State Administrative Tribunal (SAT) striking out three statements of issues, facts and contentions (SIFCs) filed by the appellant in proceedings before SAT.
The background to the SAT proceedings is set out in the Deputy President's reasons reported as Laurent and Commissioner of Police [2009] WASAT 254 between [6] ‑ [10]:
Mr Laurent was a police officer in the Western Australia Police Force from June 1996 until 24 December 2008. He claims that he sustained back injuries in the course of carrying out his duties as a police officer in February 2002 and in February 2004. In June 2006, Mr Laurent was transferred to the Geraldton Police Station. Mr Laurent claims that in about August 2007, he sustained what he describes as a rash injury in the course of carrying out his duties as a police officer. Mr Laurent claims he suffered this injury as a result of exposure to contaminants following the refurbishment of the air conditioning system at the Geraldton Police Station.
Mr Laurent alleges that while he was working at the Geraldton Police Station, the Commissioner discriminated against him in the area of employment on the ground of his impairment, namely his back injury. Mr Laurent made a complaint to the Equal Opportunity Commission (EOC) in relation to that alleged discrimination. On 18 December 2007, the Commissioner for Equal Opportunity referred that complaint to the Tribunal pursuant to s 93(1)(b) of the Equal Opportunity Act 1984 (WA) (EO Act).
The Tribunal ordered that Mr Laurent file a Statement of the Issues, Facts and Contentions (SIFC) which he says arise in relation to that complaint. He did so on 14 April 2008 (the first SIFC). The first SIFC was drafted by a solicitor from the EOC who was, at that time, assisting Mr Laurent to pursue his application.
Mr Laurent also alleges that while he was working at the Geraldton Police Station, the Commissioner discriminated against him in the area of employment on the ground of another impairment, namely his rash injury. In addition, Mr Laurent alleges that he was the subject of victimisation by the Commissioner and by Senior Sergeant Kosovich (who is a police officer who was stationed at the Geraldton Police Station when Mr Laurent worked there), contrary to s 67 of the EO Act. Mr Laurent made complaints to the EOC in relation to both matters on 10 April 2008. The EOC dismissed both complaints on the grounds that they were misconceived. On 15 August 2008, the EOC referred these two further complaints to the Tribunal pursuant to s 90(2) of the EO Act.
The Tribunal ordered that the proceedings commenced by both referrals by the EOC be consolidated. The Tribunal initially ordered that Mr Laurent file a SIFC setting out all of his issues, facts and contentions in the consolidated proceedings. That was not done. Eventually, the Tribunal ordered that Mr Laurent file a SIFC in relation to his second complaint of discrimination. He did so on 5 March 2009 (second SIFC). The Tribunal also ordered that Mr Laurent file a SIFC in relation to his complaint of victimisation. He did so on 17 April 2009 (third SIFC).
Although the appellant's SIFCs refer to both the employees of the respondent and the respondent itself, Judge Pritchard said that the appellant did not allege that the commissioner was personally engaged in wrongdoing; rather, the basis for the appellant's claim was that the commissioner was vicariously liable for acts done by employees.
The respondent applied under s 47 of the SAT Act to strike out the entire proceedings or parts of the three SIFCs filed by the appellant on the grounds that the proceedings or the SIFCs were frivolous, vexatious, misconceived or lacking in substance: see [15] of the reasons.
In her reasons for decision, Judge Pritchard considered SAT's power under the relevant provisions of the SAT Act and whether the three SIFCs should be struck out. Judge Pritchard concluded that all three SIFCs were obviously untenable, that they could not possibly succeed or were so manifestly groundless that they did not disclose a case which could succeed: see [50], [64] and [115] of the reasons.
In the course of her reasons, the Deputy President said that all factual assertions in support of the appellant's application would be assumed to be true for the purpose of the application: see [20] of the reasons.
Consequently, her Honour struck out all three SIFCs and dismissed the proceeding pursuant to s 47(1)(a) of the SAT Act because it was misconceived or lacking in substance: see [117] of the reasons.
The appellant then lodged an appeal notice on 8 February 2010 seeking leave to appeal. The appellant was required to file and serve the appellant's case on or before 15 March 2010. It was not filed and on 26 March 2010 the appellant was granted an extension of time to 30 April 2010. The appellant applied for a further extension of time on 30 April 2010. The appellant said that his back injury meant he was unable to sit for long periods of time and thus he had been unable to prepare the appellant's case. The time for filing and serving the appellant's case was further extended to 11 June 2010. The appellant applied again for an extension on 11 June. The appellant said he had aggravated his back injury while preparing documents for the appeal.
The application for the further extension was listed for hearing on 22 July 2010. At the hearing, Newnes JA ordered that unless the appellant file and serve the appellant's case on or before 12 August 2010 the appeal would be dismissed and the appellant would have to pay the respondent's costs. His Honour referred to the fact that the appellant's case was four months out of time and that the appellant had not put in any sufficient medical evidence supporting the contention that his injuries prevented him from completing the appellant's case.
The case was ultimately filed on 12 August 2010. The matter was then listed on 10 September 2010 for the appellant to show cause why the appeal should not be dismissed under r 43 for failure to comply with r 32.
At the hearing on 10 September 2010, the appellant was granted leave to file and serve an amended appellant's case on or before 8 October and the registrar's show cause notice was adjourned to 15 October 2010. The appellant filed an amended case on 8 October 2010.
At the hearing on 15 October 2010, the appellant was advised of certain deficiencies in the documents, was granted leave to file and serve a re‑amended appellant's case on or before 5 November 2010. The matter was then adjourned to 23 November 2010. The appellant filed a re‑amended case on 5 November 2010. The grounds of appeal in the re‑amended case which is now before the court read:
The Judge:
(1)Erred in law;
(2)Error of decision viewed together is unreasonable and is not in the public interest;
(3)Decision is unsafe or unsatisfactory;
And;
the above grounds are error of law.
The first question that this court must consider is whether the appellant's case complies with r 32(4) and (5). Rule 32(4) provides that the grounds and concise particulars of them must be stated succinctly in numbered paragraphs and must not merely allege that the primary court erred in fact or in law or merely allege that the decision is unreasonable or merely allege that the primary court's decision is unsafe or unsatisfactory.
Rule 32(5) provides that the written submissions must convey the substance of the grounds as clearly and succinctly as possible.
The grounds of appeal set out in the appellant's case do not comply with r 32(4)(b). Ground 1 contains a mere assertion of an error of law, ground 2 contends that the decision is merely unreasonable, and ground 3 asserts that the primary decision is unsafe or unsatisfactory. All of these grounds are therefore contrary to r 32.
The grounds are unfortunately given no content by the appellant's submissions. The submissions do not convey the substance of the appellant's grounds clearly or succinctly or at all, and thus do not comply with r 32(5)(a).
Rule 43(2)(g) provides that a single judge has jurisdiction to dismiss the appeal if none of the grounds of appeal has a reasonable prospect of succeeding. This is a delegated power which, of course, can also be exercised by the Court of Appeal itself.
In my opinion, none of the grounds of appeal has any reasonable prospect of succeeding. As already mentioned, the grounds contain mere assertions of error of law and that the decision is unreasonable or unsafe and unsatisfactory, and it is impossible from a reading of these submissions to detect any points which have any reasonable prospect of succeeding.
Unfortunately the submissions are in many respects incomprehensible and, to illustrate this, I set out pars 11, 19 and 49:
11.The Tribunal made error at law (not allowed to attain evidence and not address the extensive detriments that were causing injury and disadvantage) for not using its procedures, s48(1)(d)(e) and s32 by setting in place orders to prevent the respondent to subject such callus detriments under false pretext (masked) to having a right to manage at law as a result of relying on the procedure for the primary act (EO Act). The Tribunal by omission gave rise for the

respondent to terminate my vocation with criminality, give rise to procedure s105(13) of provision to appeal on a question of procedure, facts and mixed law and facts. At the court discretion the grounds should be assessed on a question of facts, procedure and mixed law and facts.
…
19.The grounds of appeal are addressed in the entirely as there are crossover of issues in support of the claim in global context such as: Findings that involves false facts; Findings that was omitted; misconceived; lacking in substance; further claims; documentation by discovery; numerous detriments not articulate; reasonable excuse; sufficient weight to my claims; injury; Where no facts were presented; contradicted facts and evidence on hand; relying on false facts; Preserve the forensic value, veracity of claim; assess the individual complaint in a global; Callus detriments under false pretext; the respondent's procedure v burden of the provision of the EO Act; and reasonable test.
…
49.The Tribunal made error in law, as its findings is not supported without facts or facts pertained or facts (such as documentation and witnesses) in possession of the respondent, such as Mr Matthews correspondence 2002 and others that was not disclosed. Further, the Tribunal made error at law by inferring that I was not conversant with statute Acts, omitting that I informed the Tribunal to be patient as the evidence was reserved for trial in simple term to attempts to demise proceedings with criminality. On the grounds of reasonableness the Tribunal omits evidence, seeks to rely on the respondent's explanation contrary to evidence in possession, and that of the respondent and I at the demise of the complaint pertained that seems to favour the respondent with no facts presented or false facts or incorrect facts.

In conclusion, the appellant's case does not comply with r 32, the appeal has no reasonable prospect of success and pursuant to r 43(2)(g)(i) and (ii) the appeal should be dismissed.
NEWNES JA: I agree.