Ragless v Stokes - [2015] SAEOT 1

EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
RAGLESS v STOKES
[2015] SAEOT 1
Judgment of His Honour Judge Costello
12 March 2015
HUMAN RIGHTS - DISCRIMINATION
Proceedings instituted pursuant to Whistleblowers Protection Act (WPA) and Equal Opportunity Act claiming victimisation by the respondent – complainant alleging victimisation consequent upon his appropriate disclosure of public interest information – disclosure concerned details of an incident at complainant’s shooting club between himself and the Secretary of his club – respondent was the club's Assistant Secretary – complainant's report of the details of the incident did not constitute an appropriate disclosure of public interest information within the meaning of the WPA – Complaint otherwise within time and arguably disclosing possible acts of victimisation by the respondent - application by respondent for dismissal of the Complaint.
HELD: Complaint dismissed.
Whistleblowers Protection Act 1993 (SA) s 4, s 5, s 9 ; Equal Opportunity Act 1984 (SA) s 93, s 95, s 96 , referred to.
Stokes v Ragless [2014] SASC 56; Rodgers v Revenue SA, Department of Treasury and Finance (State of South Australia) [2014] SASCFC 2, considered.

RAGLESS v STOKES
[2015] SAEOT 1
Introduction

In these proceedings the respondent has applied for an order dismissing the Complaint. In the alternative he seeks an order striking out the Complaint. He makes his application upon two bases, namely that:
· It is lacking in substance; and
· It is out of time.
Background to the Complaint
In his Complaint to the Equal Opportunity Commission, the complainant asserted that he had been victimised by the respondent because he had made an ‘appropriate disclosure of public interest information’ within the meaning of the Whistleblowers Protection Act 1993 (SA) (‘the WPA’).
The WPA
Section 5 relevantly provides:
5—Immunity for appropriate disclosures of public interest information
(1)    A person who makes an appropriate disclosure of public interest information incurs no civil or criminal liability by doing so...
(2)    A person makes an appropriate disclosure of public interest information for the purposes of this Act if, and only if—
(a)the person—
(i)   believes on reasonable grounds that the information is true; or
(ii) is not in a position to form a belief on reasonable grounds about the truth of the information but believes on reasonable grounds that the information may be true and is of sufficient significance to justify its disclosure so that its truth may be investigated; and
(b)the disclosure is made to a person to whom it is, in the circumstances of the case, reasonable and appropriate to make the disclosure.
(3) A disclosure is taken to have been made to a person to whom it is, in the circumstances of the case, reasonable and appropriate to make the disclosure if it is made to an appropriate authority (but this is not intended to suggest that an appropriate authority is the only person to whom a disclosure of public interest information may be reasonably and appropriately made).
(4) For the purposes of subsection (3), a disclosure of public interest information is made to an appropriate authority if it is made to a Minister of the Crown or—
(a)where the information relates to an illegal activity—to a member of the police force...
Section 4(1) relevantly provides:
4—Interpretation
public interest information means information that tends to show—
(a) that an adult person (whether or not a public officer), body corporate or government agency is or has been involved...—
(i)in an illegal activity; or
(ii)in an irregular and unauthorised use of public money; or
(iii)in substantial mismanagement of public resources; or
(iv)in conduct that causes a substantial risk to public health or safety, or to the environment; or
(b) that a public officer is guilty of maladministration in or in relation to the performance ... of official functions.
public officer means—
(a) a person appointed to public office by the Governor; or
(b) a member of Parliament; or
(c) a person employed in the Public Service of the State; or
(d) a member of the police force; or
(e) any other officer or employee of the Crown; or
(f) a member, officer or employee of—
(i)an agency or instrumentality of the Crown; or
(ii)a body that is subject to control or direction by a Minister, agency or instrumentality of the Crown; or
(iii)a body whose members, or a majority of whose members, are appointed by the Governor or a Minister, agency or instrumentality of the Crown; or
(g) a member of a local government body or an officer or employee of a local government body.
Section 9 relevantly provides:
9—Victimisation
(1) A person who causes detriment to another on the ground, or substantially on the ground, that the other person ... has made or intends to make an appropriate disclosure of public interest information commits an act of victimisation.
(2) An act of victimisation under this Act may be dealt with—
(a)as a tort; or
(b)as if it were an act of victimisation under the Equal Opportunity Act 1984 but, if the victim commences proceedings in a court seeking a remedy in tort, he or she cannot subsequently lodge a complaint under the Equal Opportunity Act 1984 and, conversely, if the victim lodges a complaint under that Act, he or she cannot subsequently commence proceedings in a court seeking a remedy in tort.
...
(4) In this section—
detriment includes—
(a)injury, damage or loss; or
(b)intimidation or harassment; or
(c)... or
(d)threats of reprisal.
The Equal Opportunity Act
An act of victimisation under the WPA may be dealt with as if it were an act of victimisation under the Equal Opportunity Act 1984 (SA) (‘the EOA’).
For the purposes of this application the EOA relevantly provides:
93—Making of complaints
(1)   A complaint alleging that a person has acted in contravention of this Act may be made—
(a)   by a person aggrieved by the act;
...
(1c) A complaint—
(a)must be in writing and set out the details of the alleged contravention; and
(b)must be lodged with the Commissioner.
(2)   A complaint must be lodged—
(a)if the alleged contravention is constituted of a series of acts—within 12 months of the last of those acts;
(b)in any other case—within 12 months of the date on which the contravention is alleged to have been committed.
(2a) The Commissioner may, on application, extend the time for lodging a complaint, even if the time for lodging the complaint has expired, if the Commissioner is satisfied—
(a)that there is good reason why the complaint was not made within the stipulated time period; and
(b)that in all the circumstances it is just and equitable to do so.
...
95B—Referral of complaints to Tribunal
If, in respect of a complaint, the Commissioner—
(a)   is of the opinion that the matter cannot be resolved by conciliation; or
(b)   has attempted to resolve the matter by conciliation but has not been successful in that attempt; or
(c)   has declined to recognise the complaint as one on which action should be taken and the complainant has, within 3 months of being notified of the Commissioner's decision, by notice in writing, required the Commissioner to refer the complaint to the Tribunal, the Commissioner must refer the matter to the Tribunal for hearing and determination.
96—Power of Tribunal to make certain orders
(1)   The Tribunal may, on determining that the respondent in proceedings under this Part has acted in contravention of this Act, make one or more of the following orders:
(a)subject to this section, an order requiring the respondent to pay compensation (of such amount as the Tribunal thinks fit) to a person for loss or damage arising from the contravention;
...
(2)   The Tribunal may, at any stage of proceedings under this Part—
(a)make an interim order to prevent prejudice to a person affected by the proceedings;
(b)make an order dismissing the proceedings.
...
Public Interest Information
The public interest information which the complainant asserts that he disclosed (and for which he has been victimised) arises out of and comprises an incident which occurred on the firearms range at his local gun club (the South Australia Field & Game Association Southern Branch) between himself and the club secretary, Mr Peter Perry. After he reported the incident to the club President in accordance with the club’s Constitution he asserts that club officials, including the respondent (the then Assistant Secretary) tried to ‘cover-up’ the incident and victimise him by inter alia attempting to paint him as being mentally unstable. The complainant set out the incident in detail in a letter dated 11 October 2012 to the Secretary of the South Australian Field and Game Association and that detailed incident forms part of his Further and Better Particulars of Complaint which he filed on 7 October 2014. The letter recording the incident relevantly provides:
I wish to lodge a formal complaint regarding an incident at the Southern Branch at a two day shoot on 19/9/12.
The incident highlights abusive language and un-save (sic) practice by Secretary of the branch and unfair and unreasonable treatment by the President.
...
I was in a squad with the following shooting order.
Colin Smith, Peter Perry, Ross Bryant, Allen Marden, Mark Della-Zoppa and myself.
It was the inaugural shotgun start and we were on stand two about twenty minutes early.
There were plenty of jokes about starting before the season opened and Mark commented that the score card showed Peter had not paid and questioned Peter. He was told to mind his own business.
I mentioned to Peter that the format had been rejected by Federation some years ago and was answered by some derogatory comments about Federation and a ‘we will do what we want’ attitude.
The seasoned (sic) opened about three minutes early for at least one squad but we played by the rules and waited.
Things went OK until I was in the stand. I shot at the C and B target and after shooting the A target and preparing for the pair, Peter stopped me as he felt that due to a sudden increase in wind the target has shifted and there was a safety concern on stand three.
He moved the safety bollard to restrict gun travel but at this point squad one had arrived and Pat decided in the light of the wind shift the targets required changing.
He changed target A and B but target B was now directly in front of the power line.
I was told by Peter to continue shooting and I refused until target B was changed.
I did not have to shoot B again but every other squad had to and the cost to the club in the event of power line or insulator damage could exceed $20,000.
This upset Peter who commented that we shoot at the power line all the time and ‘just get on with it’.
My insistence resulted in Peter yelling to Pat ‘You will have to shift it; fucking Ragless won’t shoot unless you do’.
The problem was fixed and I got ready to shoot. Target A had now been shifted back to where it was before I shot and I rightly expected to re shoot my third single.
Two shots at my single target resulted in a Lost and Lost from Peter and I insisted he had got it wrong. Under sufferance he allowed me to shoot the pair and we proceeded to stand three.
I was standing about four metres North West of the stand and in a quiet conversation with Mark on rule interpretation interrupted by a very loud, ‘STEVE, SHUT THE FUCK UP’.
I looked up and Peter had turned in the stand, appeared noticeable (sic) agitated and angry and repeated, ‘JUST SHUT THE FUCK UP’.
I approached Peter and asked him to remove his shells from the gun, he turned to face the stand and I repeated my request. He replied that he was going to shoot.
When he left the stand I approached him and he said he did not want talk and would discuss it in the clubhouse.
I insisted and made the following comment, ‘PETER, IF YOU TALK DOWN TO ME OR ATTEMPT TO BELITTLE ME ONE MORE TIME, YOU WILL NOT ENJOY YOUR DAY’. Peter replied, ‘IS THAT A THREAT’? I repeated, ‘PETER, IF YOU TALK DOWN TO ME OR ATTEMPT TO BELITTLE ME ONE MORE TIME, YOU WILL NOT ENJOY YOUR DAY’. Peter asked ARE YOU THREATENING ME?
I do not remember this but Ross said that I replied something like ‘If that’s the way you take it then I am threatening you’.
We then moved on to station four without incident and on the way to five Peter wanted to get his hat and wanted us to start without him.
Allan was first up and on sighting the targets a branch that had been shot at was obscuring the view of the tower target. Allen shot the A target and put his second barrel at the branch which fell a couple of feet. I commented that now it obscured my view.
When Mark was in the stand he shot his first target and put his second shot into the branch which fell. Peter commented, ‘AS SECRETARY OF THIS CLUB AND SQUAD REFEREE IT IS MY DUTY TO INFORM YOU, IF THERE IS ANOTHER INCEDENT (sic) LIKE THAT I WILL REMOVE YOU FROM THE SQUAD AND YOU WILL NOT SHOOT AT THIS CLUB AGAIN’.
I shot the rest of the day and the last round on Sunday with Peter without further incident but I am sorry to say that in twenty three years of shooting Sporting Clays Peter is only the second person I will never shoot, or associate with again.
I was at the club from Friday night until about 4.30pm on Sunday and apart from a very short comment stating he would get the story from other members of the squad I had no action taken by the President to what I consider a very serious incident on a shooting range. As I have stated the President did not ask for my version or suggest I lodge a complaint even after hearing a version of the incident from at least two other squad members.
An incident report lodged with the President resulted in written confirmation of my version of the event from two of the squad members and a statement that the weekend was over and we all have to move on.
I believe there is no excuse for the treatment I received by both the President and Secretary of this club.
...
Against this statutory and factual background I now turn to consider whether the complaint is lacking in substance and/or out of time.
Lacking in Substance
It may be seen from the legislative scheme referred to above that in order for there to be a valid complaint under the EOA, arising from alleged acts of victimisation within the meaning of the WPA, there must first be a disclosure of public interest information leading to one person causing detriment to another.
Clearly there was a level of animosity between the complainant and Mr Perry which ultimately led to Mr Perry threatening to remove the complainant from the squad and precluding him from shooting at the club should such an incident ever arise again.
The question which falls for consideration in an application such as this is whether, in the context of the definition of ‘public interest information’ in the WPA, it can be said that the incident so described constitutes:
· an illegal activity; or
· conduct that causes a substantial risk to public health or safety.[1]
[1] The other ‘conduct’ identified in the definition is s 4 of the WPA relates to conduct which does not arise here.
Whilst it is possible to categorise Mr Perry’s conduct as rude and liable to cause an affront, there is nothing about it, in my view, to suggest that it is illegal.
I have set out in detail the material which the complainant asserts to be public interest information which he sought to disclose.
After Mr Perry spoke in this way he was approached by the complainant with a request that he unload his gun whereupon Mr Perry simply replied that he was going to take his turn and shoot.
After finishing shooting he declined to talk to the complainant. There then followed comments from the complainant to Mr Perry which the complainant accepted could be taken to be a threat, not by Mr Perry but by the complainant to Mr Perry.
It is equally noteworthy in this respect to observe that after the words were uttered by Mr Perry and after the apparent threat was made by the complainant, both men moved on to shoot further ‘rounds’ together on that day and the following day in circumstances which the complainant described as ‘without further incident’. As I have already observed, whilst the conduct of Mr Perry and the language he used was robust, arguably rude and certainly capable of giving affront to the person to whom it is directed, there was certainly nothing illegal about either in my view.
Nor do I regard such behaviour as being such as to cause a risk to public safety let alone a substantial one.
Whilst there was an initial robust exchange between two men carrying guns (which in the circumstances one might prefer didn’t occur on a shooting range) the incident did not rise above that level. In my view, there can be no suggestion, in the entire incident, that either man used or even contemplated (let alone seriously considered) the use of his weapon in such a way as to pose the requisite (in terms of s 4 of the WPA) ‘substantial risk to public safety’.
Indeed, when one subjects the entire incident to proper scrutiny the complainant’s real grievance appears not to be the incident itself but rather the dismissive attitude of Club Officials to his report.
I am therefore quite satisfied that the language and conduct of Mr Perry, however categorised, fell well short of either illegal activity or conduct that caused a substantial risk to public safety.
In the event that I am wrong as to whether the reporting of this incident is capable of amounting to a disclosure of public interest information, I will now consider whether or not the complainant has demonstrated that the respondent committed an act of victimisation, namely whether he has caused detriment to the complainant on the ground or substantially on the ground of his disclosure of the information.
The complainant identified four potential acts of victimisation which he attributed to the respondent, namely:
a)   Notifications to the Registrar of Firearms dated 12 October 2012 asserting grounds to suspect the complainant was suffering a mental illness, such that it was not safe for him to possess a firearm. The complainant asserts that the notification was deliberately false and made to smear him to ‘cover up’ the incident and thwart his bid for election in forthcoming club elections;
b)     The subsequent removal of his licence in 2012;
c)     The respondent’s alleged defamatory email sent on 23 October 2012; and
d)     The commencement of Supreme Court proceedings by the respondent against him for defamation in October 2013.
It is difficult to see how the removal of his licence by the Firearms Branch could be an act of victimisation by the respondent.
While the notifications to the Registrar of Firearms were not signed by the respondent, he was a member of the Committee of the Club and I would not be prepared to conclude that he played no part in the decision to notify the Registrar. The notifications are therefore capable of amounting to an act of victimisation.
In my view, the alleged defamatory email is also capable of being an act of victimisation.
Finally, there is the institution of the defamation proceedings against the complainant in October 2013.
On this aspect, I was referred to an interlocutory decision of his Honour Parker J in the defamation proceedings[2] in which his Honour granted the respondent a mandatory injunction restraining the complainant from publishing certain words suggesting, amongst other things, that Mr Stokes is a liar, a cheat or a corrupt individual.
[2] Stokes v Ragless [2014] SASC 56.

It was submitted that, in the face of such a decision and the nature of the findings favourable to the respondent, it was not reasonably arguable that the institution of such proceedings could amount to an act of victimisation. I do not agree.
The decision by Parker J is an interlocutory decision. If, at the trial of these proceedings, the respondent was to fail and if, as the complainant asserts to be the case, the Supreme Court was to find that the defamation action was instituted for an improper purpose i.e. for the purposes of attempting to silence the complainant from speaking out, it is arguable (and I put it no higher) that this could amount to an act of victimisation.
Accordingly, I am satisfied that if public interest information had been disclosed there are grounds to conclude that the complainant could succeed on the act of victimisation issue.
However, I am satisfied that the disclosure of this incident by the complainant does not constitute an appropriate disclosure of public interest information within the meaning of the WPA. Accordingly, as there has been no relevant disclosure within the meaning of the WPA I am satisfied that ‘it is not reasonably arguable that the complainant could succeed on the issues upon which he would need to succeed at the trial’.[3]
[3] The relevant test was formulated in this way in Rodgers v Revenue SA, Department of Treasury and Finance (State of South Australia) [2014] SASCFC 2 at [31].
This is sufficient to dispose of the Complaint. However, the respondent also submitted that the Complaint was out of time.
The Complaint was lodged on 20 November 2013. In his Complaint and the various Particulars supplied in amplification and support of it, the complainant identified the series of actions, to which I earlier referred, which may be said to evidence the acts of victimisation of him (potentially involving the respondent) consequent upon his reporting of the incident.
The allegations involving conduct which occurred in 2012 occurred more than 12 months prior to the institution of the Complaint and are outside the 12 month time limit.
The institution of the Supreme Court proceedings is an ‘act’ which occurred within 12 months of the institution of the Complaint and is therefore ‘within time’.
Insofar as it may be necessary, I was invited by the complainant to exercise my discretion and extend the time within which to institute the proceedings, as they relate to the other alleged acts of victimisation.
It is apparent from the material supplied in support of the Complaint that after the complainant reported the incident he became engaged in a series of protracted and distracting interchanges with other authorities.
In my view, there are proper grounds to explain his delay in instituting the Complaint. In the circumstances, I would have been prepared to exercise my discretion to make an order extending the time within which to institute the proceedings, as they relate to the alleged acts which are out of time.
However, for the reasons expressed, any such extension would be an exercise in futility because I am satisfied that, as there was no appropriate disclosure of public interest information within the meaning of the WPA by the complainant, it is not reasonably arguable that the complainant could succeed at trial.
Accordingly, the Complaint is dismissed.