Ragless v Stokes - [2016] SAEOT 2

EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
RAGLESS v STOKES
[2016] SAEOT 2
Judgment of Her Honour Judge Cole
20 April 2016
HUMAN RIGHTS - DISCRIMINATION
Application by the respondent seeking an order that the proceedings be dismissed on the basis that there is no likelihood of success.
Held: Pursuant to section 96(2)(b) of the Equal Opportunity Act 1984, the proceedings are dismissed.
Equal Opportunity Act 1984 (SA) ss 6, 86, 93, 95, 95B, 96, referred to.
Francis v Christies Beach Medical Centre [2013] SAEOT 1; Pazios & Anor v Pultney Grammar School [2008] SAEOT 7; Ragless v The South Australian Field & Game Association Southern Branch Inc [2016] SASC 8, considered.

RAGLESS v STOKES
[2016] SAEOT 2
THE TRIBUNAL DELIVERED THE FOLLOWING JUDGMENT:

Mrs Ragless made a complaint to the Commissioner for Equal Opportunity (“the Commissioner”) in respect of the conduct of Mr Stokes. Mrs Ragless alleged that Mr Stokes’ conduct amounted to victimisation of her, contrary to the provisions of the Equal Opportunity Act 1984 (“the Act”). The Commissioner referred the complaint to the Tribunal by letter dated 26 August 2015.
Mr Stokes has now applied to have the matter dismissed or struck out on the basis that it has no likelihood of success, and that no evidence which could be adduced at trial could change that.[1] The Act provides, in s 96(2)(b):
(2)The Tribunal may, at any stage of proceedings under this Part—
...
(b) make an order dismissing the proceedings.
[1] Pazios & Anor v Pultney Grammar School [2008] SAEOT 7 at [17]; Francis v Christies Beach Medical Centre [2013] SAEOT 1 at [2].
Victimisation under the Act
The Act provides, in s 86:
(1)It is unlawful for a person to commit an act of victimisation.
(2)For the purposes of this section, a person commits an act of victimisation against another person (the victim) if he or she treats the victim unfavourably on the ground that the victim has—
(a)     brought proceedings under this Act against a person; or
(b)     given evidence or information in proceedings under this Act; or
(c)     made allegations that the victim or some other person has been the subject of an act that contravenes this Act; or
(d)     reasonably asserted the victim's right or the right of some other person to lodge a complaint or take other proceedings under this Act; or
(e)     otherwise done anything under or by reference to this Act,
or on the ground that he or she knows that the victim intends to do any of those things, or suspects that the victim has done, or intends to do, any of those things.
(3)Unfavourable treatment on the ground that a person—
(a)     has made a false allegation; or
(b)     has not acted in good faith,
does not constitute an act of victimisation.
The Act provides, in s 6(3):
(3)For the purposes of this Act, a person (the discriminator) treats another unfavourably on the basis of a particular attribute or circumstance if the discriminator treats that other person less favourably than in identical or similar circumstances the discriminator treats, or would treat, a person who does not have that attribute or is not affected by that circumstance.
A person who has been the subject of victimisation within the meaning of the Act may complain to the Commissioner pursuant to s 93 of the Act. The Commissioner may then refer the complaint to this Tribunal under s 95B.
In her complaint of victimisation, Mrs Ragless relied in particular upon s 86(2)(d) and (e) of the Act. In order to show that she has been subject to victimisation by Mr Stokes under s 86(2)(d) of the Act, Mrs Ragless would need to prove that Mr Stokes had treated her unfavourably, on the ground that she has reasonably asserted her right, or someone else’s right, to lodge a complaint or to take other proceedings under the Act. In order to show that she has been subject to victimisation by Mr Stokes under s 86(2)(e), Mrs Ragless would need to prove that she has done something under the Act, or by reference to the Act, which has been the basis for some unfavourable treatment of her by Mr Stokes.
Mrs Ragless’ allegations of victimisation
Mrs Ragless married Mr Steven Ragless in 1968. Mr Ragless was a member of the South Australia Field and Game Association Southern Branch Inc (“SAFGA”) for many years until 27 October 2012. Mrs Ragless has never been a member of SAFGA and has never held a firearms licence. She did, however, participate in the social activities of SAFGA in her capacity as Mr Ragless’ wife. She also assisted with the publication and distribution of a newsletter and with catering. Mrs Ragless’ complaints about victimisation revolve around events which occurred in the context of Mr Ragless’ membership of SAFGA and the cessation of that membership.
The basis for Mrs Ragless’ complaint was set out in her complaint to the Commissioner, in further and better particulars in the Tribunal and in an outline of argument. By the time of the hearing of the application to dismiss or strike out Mrs Ragless’ complaint, Mrs Ragless had settled upon eight incidents of alleged victimisation upon which she sought to rely for the purposes of her complaint. For the purpose of determining the application to dismiss or strike out her complaint, I have not heard any evidence or made any findings of fact. I have simply relied upon the facts alleged by Mrs Ragless, assuming, for the purposes of deciding the application, that she would be able to establish those facts to the requisite standard of proof.
I will consider Mrs Ragless’ allegations on an incident by incident basis, and then as a whole.
The incidents
1Mr Ragless had a friendship with Mr Greg Dawes, who was also a member of SAFGA. Mrs Ragless alleged that, in June 2012, a “difference of opinion regarding the future of Southern branch”[2] adversely affected the friendship between Mr Ragless and Mr Dawes. Mr Ragless came to believe that Mr Dawes was spreading rumours about him to the effect that he was having another nervous breakdown (Mr Ragless had, in fact, had what Mrs Ragless refers to as a nervous breakdown in 2008). Mrs Ragless had a telephone conversation with Mr Dawes in which she informed Mr Dawes that her husband was well and noted that Mr Dawes had been talking about her husband behind his back. Mrs Ragless, in her outline of submissions, characterised this phone call as an assertion by her of Mr Ragless’ right to lodge a claim of discrimination on the basis of unfair and unfavourable treatment because of a past disability.[3]
[2]    Plaintiff's Outline of Submissions for a Hearing on 11/2/16, para 18.
[3]    Plaintiff's Outline of Submissions for a Hearing on 11/2/16, para 21.
Even if Mrs Ragless were to prove the facts she alleges in relation to this ground of her complaint, it has no prospect of success as an allegation of victimisation at all, much less an allegation of victimisation against Mr Stokes. Mrs Ragless was not treated unfavourably. She did not, in fact, assert any right of her husband’s on her account of the conversation with Mr Dawes. She did not do anything else by reference to the Act. Mr Stokes is not said to have been involved in either the telephone conversation or in any unfavourable treatment based on the telephone conversation
Mrs Ragless’ complaint cannot succeed in relation to the first alleged incident.
2In about 2012, Mr Ragless was taking steps in relation to a forthcoming election of officeholders of SAFGA. Mrs Ragless’ outline of submissions says that Mr Ragless had sent letters to the committee members saying that he intended to stand for both the position of Branch Secretary, an office which was, at that time, held by Mr Peter Perry, and the position of President, which was, at that time, held by Mr Greg Dawes. Mrs Ragless said that Mr Stokes telephoned Mr Ragless and told Mr Ragless that he, Mr Stokes, would withdraw financial support for the club “and send us broke” if Mr Ragless “tried to stand up” against Mr Perry, Mr Dawes and Mr Stokes.[4] Following that telephone call, Mr Ragless lost sleep and became anxious about the consequences of his plans upon his family. Mr Ragless and Mrs Ragless discussed the matter, and agreed that Mr Ragless would not run for office.
[4]    Plaintiff's Outline of Sunmissions for a Hearing on 11/2/16, para 26.
Mrs Ragless characterised these events in the following way:
At this point I asserted Steve’s right to challenge these people that were discriminating against Steve and taking his previous issue and twisting it out of context.[5]
[5]    Plaintiff's Outline of Submissions for a Hearing on 11/2/16, para 29.
The reference to “his previous issue” is a reference to what Mrs Ragless refers to as Mr Ragless’ nervous breakdown.
Again, these allegations do not amount to allegations of victimisation of Mrs Ragless by Mr Stokes. Mr Stokes did not treat Mrs Ragless unfavourably. Mrs Ragless did not assert her right or anyone else’s right to lodge a complaint or to take other proceedings under the Act. She did not do anything else by reference to the Act.
3Mrs Ragless’ third allegation of victimisation relates to a two day event at Birdwood which occurred during the controversy about who would stand for election as office holders of SAFGA. Mrs Ragless, in her outline, said that she was helping in the kitchen at the event when she:
called Greg Dawes outside and discussed the whole issue with him. Greg started to tell me Steve was unstable and when I told him that this was not true and was not the first issue of uncontrolled bullying and abuse from Peter Perry and Steve was concerned that he would snap and shoot somebody.[6]
[6]    Plaintiff's Outline of Submissions for a Hearing on 11/2/16, para 32.
Mrs Ragless asserted, in her outline:
This was the third instance of me asserting Steve’s right to complain about unfair treatment based on the perception of the recurrence of a previous condition.[7]
[7]    Plaintiff's Outline of Submissions for a Hearing on 11/2/16, para 33.
There are several possible interpretations of this allegation. None of them are capable of amounting to the victimisation of Mrs Ragless by Mr Stokes. Mr Stokes was not even involved in the conversation. No unfavourable treatment of Mrs Ragless by Mr Stokes is alleged to have resulted from her conversation with Mr Dawes.
4Mrs Ragless’ fourth allegation was as follows:
On Wednesday the following week Ray Pash who was Assistant Secretary rang to say that the Secretary Darian Stringer had reported to the Police that Steve had a Bi Polar condition and was unsafe.
I spoke in length to Ray Pash who confirmed the President and the Secretary were acting outside the constitution with illegal and immoral intent.[sic]
I attended the State Council meeting on 10/11/12 with Steve and found a hostile environment with Mr Dawes and Mr Stokes intimidating the State Council members and audience.[8]
[8]    Plaintiff's Outline of Submissions for a Hearing on 11/2/16, paras 35-37.
Mrs Ragless characterised this as “an assertion of Steve’s right to lodge a complaint about his treatment that was based on a false report to the Firearms Branch claiming a Bi Polar condition.”[9] I reject that characterisation. The facts alleged do not constitute the victimisation of Mrs Ragless by Mr Stokes under the Act.
[9]    Plaintiff's Outline of Submissions for a Hearing on 11/2/16, para 38.
5Mrs Ragless’ fifth allegation was:
When Bryan Stokes sent out defaming documentation to all members in the State I was contacted by many members and their partners who could not understand the basis of this unprecedented deceit and bullying and were intimidated by threats of legal action.
Myself and my son and daughter knew the truth and we all supported Steve’s claim that his previous nervous breakdown was being used against him.[10]
[10] Plaintiff's Outline of Submissions for a Hearing on 11/2/16, paras 39-40.
Mrs Ragless did not allege that the “defaming documentation” was about her. The clear inference was that it related to Mr Ragless, rather than Mrs Ragless. The elements of victimisation cannot be made out on these facts. In addition, the assertion of one’s own or another person’s right to lodge a complaint or to take proceedings under the Act must be more than a state of knowledge. Some positive act of assertion is required. The fifth incident does not appear to have related to the Act at all.
6The sixth incident alleged by Mrs Ragless was as follows:
I was not aware that my daughter Hayley had independently contacted Mr Bryan Stokes confirming her support following his character assassination mail out until the discovery process in Mr Stokes’ Supreme Court defamation action against Steve.
When I was aware of the letter to Mr Stokes from Hayley I also sent an email.
Neither of these emails were answered but they were both in effect assertions of Steve’s right to claim discrimination.[11]
[11] Plaintiff's Outline of Submissions for a Hearing on 11/2/16, paras 41-43.
Again, I determine that these events do not amount to victimisation of Mrs Ragless by Mr Stokes.
7The seventh incident alleged by Mrs Ragless was her attendance at a conciliation meeting with SAFGA at the Equal Opportunity Commission. Again, on the basis of the description of these events put forward by her, Mrs Ragless’ attendance at that meeting did not constitute or result in victimisation of her by Mr Stokes. I also note that the Act, in s 95(9), provides:
(9)     Evidence of anything said or done in the course of conciliation proceedings is not admissible in proceedings under this Act or any other Act or law.
8The eighth incident alleged by Mrs Ragless was:
In June 2014 I also sent an email to Mr Bryan Stokes complaining of Steve’s treatment and the victimization war being waged by him and his friends.[12]
Once again, by itself, this does not amount to an allegation of victimisation under the Act. There is no relevant assertion or action by reference to the Act by Mrs Ragless and no resultant unfavourable treatment by Mr Stokes of Mrs Ragless.
[12] Plaintiff's Outline of Submissions for a Hearing on 11/2/16, para 46.
Mrs Ragless argued that she had been the subject of victimisation under s 86(2)(d) and (e) of the Act. None of the eight incidents put forward by Mrs Ragless, taken separately, constitutes victimisation under the Act. Mrs Ragless summarised the grounds for her assertion of victimisation in the following way:
Prior to Steve’s illegal expulsion from SAFGA I enjoyed the social status, support and respect from members afforded to the spouse of a Life Member of SAFGA. If I agreed with the view of Mr Stokes I would still be enjoying those rights.[13]
[13] Plaintiff's Outline of Submissions for a Hearing on 11/2/16, para 16.4.
In Ragless v The South Australian Field & Game Association Southern Branch Inc,[14] Vanstone J found that Mr Ragless resigned from SAFGA by letter dated 27 October 2012. In any event, on her own case, Mrs Ragless’ ability to experience the activities of SAFGA, given that she has never been a member, was entirely dependent upon Mr Ragless’ membership. It did not relate to whether or not she agreed with Mr Stokes on any issue.
[14] [2016] SASC 8.
Mrs Ragless further submitted:
Prior to my assertion that Steve had been the victim of discrimination I enjoyed the respect and company of members of the South Australian Field and Game Association. Following my assertion of my husband’s rights I was our vehicle was [sic] searched by the Police and we were evicted from the Monarto property by the Murray Bridge police on the direction of Mr Bryan Stokes and in front of many members, some I had known for twenty three years.[15]
[15] Plaintiff's Outline of Submissions for a Hearing on 11/2/16, para 16.5.
I do not doubt that Mrs Ragless has been fully supportive of Mr Ragless. However, nothing that she has put forward amounts to a relevant assertion or action by reference to the Act such as to bring her conduct within s 86(2)(d) or (e) of the Act. In addition, even if some of her thoughts, conversations or emails could be characterised as assertions under the Act, no basis for attributing the content of those thoughts, conversations or emails as a motivating force for Mr Stokes has been provided by Mrs Ragless. On the basis of the allegations put forward in the documents provided by Mrs Ragless to the Tribunal, and her submissions, I determine that she has no likelihood of success in her action alleging victimisation against her by Mr Stokes. This is so whether the alleged incidents are considered separately or together. It is so, having regard to all that Mrs Ragless has put to the Tribunal, and taking into consideration whether any evidence which Mrs Ragless could adduce could improve the likelihood of success of the complaint.
Mrs Ragless also asserted that Mr Stokes had discriminated against her, contrary to the Act. Neither her documents nor her submissions disclose any conduct on the part of Mr Stokes which could constitute unlawful discrimination under the Act. Mrs Ragless has no likelihood of success on this basis either.
Pursuant to s 96(2)(b), there will be an order that the proceedings are dismissed.