MENEGOLA and HEALTH AND DISABILITY SERVICES COMPLAINTS OFFICE
[2018] WASAT 23
•13 MARCH 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: EQUAL OPPORTUNITY ACT 1984 (WA)
CITATION: MENEGOLA and HEALTH AND DISABILITY SERVICES COMPLAINTS OFFICE [2018] WASAT 23
CORAM: DEPUTY PRESIDENT, JUDGE SHARP
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 13 MARCH 2018
PUBLISHED : 12 APRIL 2018
FILE NO/S: EOA 20 of 2017
BETWEEN: SHIRLEY MENEGOLA
Applicant
AND
HEALTH AND DISABILITY SERVICES COMPLAINTS OFFICE
Respondent
Catchwords:
Discrimination on grounds of impairment - Services - Equal opportunity - Application to strike out or dismiss - Application misconceived or lacking in substance
Legislation:
Equal Opportunity Act 1984 (WA), s 66K, s 93, s 93(1)(b), s 93(2)(a)
State Administrative Tribunal Act 2004 (WA), s 47, s 60(2)
Result:
Application for proceeding to be struck out dismissed
Category: B
Representation:
Counsel:
| Applicant | : | Mr J Rosales-Castaneda |
| Respondent | : | Ms S Keighery |
Solicitors:
| Applicant | : | Equal Opportunity Commission |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Ambrus and Churches of Christ Homes & Community Services Incorporated [2006] WASAT 141
Laurent and Commissioner of Police [2009] WASAT 254
Li and Edith Cowan University [2013] WASAT 113
REASONS FOR DECISION OF THE TRIBUNAL:
Background
At a hearing on 13 March 2018, I gave my decision and the reasons for my decision in respect of an application in this proceeding made by the respondent for the proceeding to be struck out under s 47 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). These are those reasons, taken from the transcript and edited where required to give necessary background.
On 6 January 2017, the Equal Opportunity Commissioner (Commissioner) received a complaint lodged under the Equal Opportunity Act 1984 (WA) (EO Act) from the applicant. The applicant's complaint is that the respondent unlawfully discriminated against the applicant on the ground of her impairment in the provision of a service.
The Commissioner investigated the complaint and attempted to resolve it by conciliation, but without success.
On 11 July 2017, the applicant lodged a second complaint alleging further unlawful discrimination on the same grounds.
The Commissioner referred both complaints to the Tribunal under s 93(l)(b) of the EO Act. The Commissioner assisted the applicant with the presentation of her case to the Tribunal pursuant to s 93(2)(a) of the EO Act.
Proceedings at the Tribunal
The Commissioner's referral to the Tribunal was received on 8 September 2017. The referral was initially lodged with two separate matter reference numbers (EOA 20 and EOA 21 of 2017). However, it was subsequently consolidated to one matter (EOA 20 of 2017).
The matter proceeded to an initial directions hearing on 27 September 2017, and was referred to a mediation conference at the Tribunal on 18 October 2017. The matter was not resolved.
At a subsequent directions hearing on 8 November 2017, the respondent made an application under s 47 of the SAT Act (s 47 application) for the proceeding to be struck out on the basis that it is misconceived or lacking in substance. The Tribunal made relevant programming orders and ordered that the s 47 application be determined entirely on the documents pursuant to s 60(2) of the SAT Act.
The respondent's statement of issues, facts and contentions for the purposes of the s 47 application was filed on 5 December 2017 and the applicant's responsive submissions were filed on 15 December 2017.
On 12 December 2017 the parties also filed a statement of agreed facts for the purposes of the s 47 application. The respondent stressed that these facts are not all conceded by the respondent in respect of any proceeding to follow.
Statement of agreed facts
These are the facts as set out in the statement of agreed facts referred to above.
Background
The applicant, Shirley Menegola, has several diagnosed impairments that adversely affect her vision and functional capacities:
•Sicca complex - abnormal dryness of the mouth, eyes, or other mucous membranes, leading to conjunctivitis of the eyes and decreased visual acuity;
•Meibonmiam Gland Dysfunction (MOD) - affects the eyes, causing dryness, itchiness and blurred vision;
•Blepharitis - inflammation of the eyelid margins;
•Photosensitivity;
•Astigmatism of the right eye; and
•Chronic fatigue and pain.
The respondent, the Health and Disability Services Complaints Office (respondent or HaDSCO), is an independent statutory authority which offers an impartial resolution service for complaints relating to health, disability and mental health services in Western Australia.
Complaint to HaDSCO
On 23 December 2016, the applicant telephoned HaDSCO to lodge a complaint relating to several health services providers, including Fremantle Hospital, Fiona Stanley Hospital and King Edward Memorial Hospital (23 December complaint).
The applicant spoke to an officer of HaDSCO, Mr Bruce Rego.
Mr Rego said he would send the applicant a HaDSCO complaint form.
The applicant indicated she could not fill out a written complaint form because of her visual, chronic fatigue and pain impairments.
Mr Rego advised the applicant that her complaint to HaDSCO would need to be in writing.
Mr Rego directed the applicant to services where she could obtain assistance in completing the written complaint form.
Also on 23 December 2016, an officer of HaDSCO sent the applicant an email attaching the HaDSCO complaint form.
The email stated:
Please complete all sections of the enclosed complaint form and sign before returning...
As discussed on 23 December 2016, pursuant to s 27(2) of the Health and Disability Services (Complaints) Act 1995, if HaDSCO receives an oral complaint, this must be confirmed in writing. Should you require assistance in completing the complaint form, please contact the Health Consumers Council on (08) 9221 3422 for advocacy assistance. ...
If you require further information or assistance completing the complaint form, please contact a Case Manager on (08) 6551 7600.
On 29 December 2016, HaDSCO received a written HaDSCO complaint form from the applicant complaining about the respondent's procedure for making a complaint.
Complaint to Equal Opportunity Commissioner
On 6 January 2017, the applicant lodged a complaint with the Commissioner alleging the respondent's requirement that her complaint be lodged in writing is unlawfully discriminatory on the ground of impairment.
On 12 January 2017, the applicant attended the HaDSCO office in person, where Mr Rego scribed her 23 December complaint.
On 11 July 2017, the Commissioner received a further complaint of discrimination against the respondent relating to two incidents in which the applicant spoke to officers of the respondent by telephone on 2 May 2017 and 26 May 2017 about lodging a complaint with HaDSCO.
On each of the dates referred to in the preceding paragraph, the applicant was advised by the respondent's officers that her complaints needed to be in writing.
Referral to State Administrative Tribunal
On 29 August 2017, the Commissioner referred the applicant's complaints against the respondent to the Tribunal under s 93 of the EO Act by way of report.
Relevant provisions of the SAT Act
47Frivolous etc. proceedings, dismissal of etc.
(1)This section applies if the Tribunal believes that a proceeding -
(a)is frivolous, vexatious, misconceived or lacking in substance; or
(b)is being used for an improper purpose; or
(c)is otherwise an abuse of process.
(2)If this section applies, the Tribunal may order that the proceeding be dismissed or struck out and make any appropriate orders.
Principles relating to strike out
The principles to be applied by the Tribunal in order to dismiss or strike out a proceeding prior to the final hearing on the basis that it is misconceived or lacking in substance are analogous to the principles applied by courts to summarily dismiss a proceeding. It must be demonstrated that '[the proceeding] is so obviously untenable that it cannot possibly succeed or is manifestly groundless or ... it discloses a case which the [Tribunal] is satisfied cannot succeed'; Ambrus and Churches of Christ Homes & Community Services Incorporated [2006] WASAT 141 at [8].
The term 'misconceived' connotes a misunderstanding of legal principle, while the term 'lacking in substance' connotes an untenable proposition of law or fact; Laurent and Commissioner of Police [2009] WASAT 254 (Laurent) at [23].
In considering an application under s 47 of the SAT Act, the Tribunal should assume that all of the factual assertions made by the applicant would be established at the final hearing; Li and Edith Cowan University [2013] WASAT 113 at [35].
Caution should always be applied in the exercise of the power in s 47. If there is a serious question of fact to be determined, it may be inappropriate to dismiss the proceeding; Laurent at [20].
Subsequent disagreement on certain facts
As already referred to at [27], the parties' agreed statement of facts included the following statement:
12.On 6 January, the [applicant] lodged a complaint with the [Commissioner] alleging the [respondent's] requirement that her complaint be lodged in writing is unlawfully discriminatory on the ground of impairment.
This 'fact' was relied upon by the respondent when formulating its Statement of Issues, Facts and Contentions for the purpose of the s 47 application. However the applicant, in her written submissions opposing the s 47 application, 'clarifies' that her complaint is not as described in the agreed statement of facts as set out above. Instead, the applicant's complaint in her submissions concerns the respondent's procedures for making a complaint. Specifically, the applicant says, the complaint is about the refusal of the respondent to receive a complaint by telephone and the denial of assistance to her in scribing her complaint. The applicant says that the respondent instead insisted on referring her to a third party or on her writing the complaint herself.
The respondent, of course, has not had the opportunity of either arguing that this was not the complaint to the Commissioner or addressing the complaint as described in this way by the applicant.
The parties were called in to the Tribunal on 13 March 2018 to allow them to speak to this issue. I made my decision and gave my reasons at that hearing.
Decision on strike out
The identification of the complaint which was lodged with the Commissioner and then subsequently referred to the Tribunal is an important matter of fact. I do not consider that, without first making that finding of fact, I can come to any conclusion as to whether or not the applicant's application can or cannot possibly succeed. In the absence of any agreement on that fact, the respondent's application must be refused.
Orders
1.The respondent's application for the applicant's application to be struck out is dismissed.
2.By 10 April 2018 the applicant must file with the Tribunal and give to the respondent the following documents:
(a)a statement of issues, facts and contentions it says arise in the proceeding; and
(b)an indexed and paginated bundle in chronological or other logical order of the documents on which it proposes to rely in the proceeding.
3.By 8 May 2018 the respondent must file with the Tribunal and give to the applicant its own statement of issues, facts and contentions setting out:
(a)by reference to each paragraph number in the applicant's statement whether the respondent accepts or rejects the issue, fact or contention identified by the applicant; and
(b)any other issues, facts and contentions it says arise in the proceeding.
4.The respondent must at the time it files and gives its statement of issues, facts and contentions file with the Tribunal and give to the applicant an indexed and paginated bundle in chronological or other logical order of any documents on which it proposes to rely in the proceeding not in the applicant's bundle.
5.If any party proposes to give evidence or call any witness including any expert to give evidence at the hearing it must by 15 May 2018 file with the Tribunal a signed statement of the witness' evidence and give a copy of the statement to the other parties.
6.Any document referred to in a witness statement that is contained in a bundle of documents filed by any party must be identified by reference to the relevant bundle and page number in the bundle and must not be attached to the witness statement. Any document referred to in a witness statement that is not contained in a bundle of documents filed by any party must be attached to the witness statement.
7.If a party does not wish to ask any questions at the hearing of a witness whose witness statement has been given to the party, then it must advise the Tribunal and each other party in writing of that position at least 48 hours prior to the hearing, and the witness does not then have to attend the hearing, unless required to do so by the Tribunal.
8.The matter is listed for a final hearing to commence at 10am on 22 May 2018 for a duration of one day at 565 Hay Street, Perth, Western Australia.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
T SHARP
12 APRIL 2018
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