37 The basis of the respondent's strike out application is, substantially, that the applicant's claims, as revealed by his statement of issues, facts and contentions and his witness statement and that of his daughter, include allegations that were not part of the victimisation complaint to the Commissioner. The respondent says that the only allegations into which the Tribunal has jurisdiction to inquire are the allegations made by the applicant in his original complaint.

38 The respondent considers that the original complaint from the applicant to the Commissioner discloses the following factual allegations:

1. Mr P M Giblett, Assistant Superintendent of Prisons at Casuarina Prison, made a 'blanket order' that all incoming and outgoing mail was to be sent to him for his approval. The applicant was 'targeted' and 'singled out' by this conduct.
2. This conduct of Mr Giblett was also illegal and constituted a 'violation' of various legislation and policies.

1. The conduct of Mr Giblett also constituted criminal conduct (examples of which are given).

1. Mr Giblett is also liable under the 'Corruption & Crime Act'.
2. Since the applicant's transfer to Hakea Prison, Mr Luke Thatcher has behaved in a similar manner to Mr Giblett.
3. Mr Giblett forced the applicant to sign a 'request' to sign out all of his property at Casuarina Prison (including all the files on the applicant's cases pending in court). Mr Thatcher and his staff use the same 'modus operandi'.
4. The applicant is not allowed to go to the library and has not been given a laptop, whereas two other prisoners, who are white, Caucasian and Australian, have been given laptops. The applicant also has less than one third of the property/legal material that these prisoners have in their cells.
5. The conditions in the applicant's cell are uncomfortable. This has been 'designed and crafted' to deny the applicant the space to have his files.
6. This 'reprisal' is 'unprecedented', 'unsurpassable' and 'simply unbelievable'.
7. The applicant was 'locked up and harassed and assaulted, injured and bullied by Mr Giblett and his men and women ­ to prevent [the applicant] from contacting [the Commissioner] and from prosecuting [his] complaints (appeals & cases) effectively, efficiently or in a timely manner'.
8. Mr Giblett 'illegally intercepted and destroyed' his court documents mailed to the Supreme Court and the Court of Appeal.

39 The respondent compares this with what it considers is now being alleged by the applicant and concludes that there is only one allegation that the Tribunal should inquire into, namely the allegation that, in November and December 2013, the applicant was forced to sign out all of his property, including legal materials.

40 The respondent accepts that the general allegation in the applicant's statement that the applicant was bullied and harassed was also included in the applicant's original complaint to the Commissioner. However, the respondent considers that this should be struck out on the grounds that it is too vague and general and lacks particulars so that the respondent is unable to properly respond to it. As such, the allegation is embarrassing and so constitutes an abuse of process.

41 The respondent seeks orders that the parties file amended statements of issues, facts and contentions, which specifically relate and are restricted to the allegation that in November and December 2013, the applicant was forced to sign out all of his property, including legal materials.

The applicant's response to the strike out application

42 The applicant maintains that the Tribunal has jurisdiction to inquire into the entirety of his claim, but also seeks an opportunity to file an amended statement of issues, facts and contention 'as necessary'.

43 The applicant accepts that in both Sanzana and Director General, Disability Services Commission [2011] WASAT 208 (Sanzana) and Winter and Commissioner of Western Australian Police Service [2006] WASAT 87, the Tribunal found that it only has jurisdiction over matters referred to it by the Commissioner. However, the applicant says that both of these cases can be distinguished from the present case as they relate to circumstances where the original complaint did not contain any reference to the relevant facts. In this case, the applicant says that his original complaint raised the matter of his victimisation sufficiently, in light of the circumstances and the resources available to him. The applicant says that his witness statement and statement of issues, facts and contentions simply provide context to his original claim.

44 However, if the Tribunal considers that the applicant failed to particularise his complaints to the Commissioner, then this is related to the circumstances of his incarceration and, in particular, to the respondent's successful attempts to victimise him and preclude judicial review. He says that in the present matter he has not made multiple applications for review of the issue of his victimisation, despite the fact that it was continuing.

45 The applicant considers that his subsequent documentation detailing the complaint is comprehensive and outlines his victimisation in detail, and that if further detail of specific issues for the purposes of this application is necessary, then the applicant should be afforded the opportunity to provide such particulars.

46 The applicant points out that, if the Tribunal finds that it does not have jurisdiction to determine part of the applicant's claim on the basis that this is insufficiently detailed in his original complaint, then this would render the matter incapable of further review in circumstances where, he says, there is prima facie evidence of victimisation.

47 The applicant further says that the respondent has failed to particularise the specific objections to his legal application and has not previously afforded him an opportunity to amend his legal application as necessary.

48 In relation to the respondent's claim that the applicant's application is lacking in substance, he says that it is unclear which proposition of law or fact in this matter is untenable, particularly as the respondent has accepted a part of the application. He reiterates that his evidence prima facie establishes his claim.

49 The applicant notes the respondent's claim that the application is embarrassing or an abuse of process. The applicant says that a definition of an embarrassing pleading can be found in a decision which I understand is Shelton v National Roads and Motorists Association Ltd [2004] FCA 1393 (Shelton). An embarrassing pleading includes 'a pleading that is susceptible to various meanings, or contains inconsistent allegations, or in which alternatives are confusingly intermixed, or in which irrelevant allegations are made that tend to increase expense'; Shelton at [18]. The applicant says that his statement of issues, facts and contentions does not fit this description. The applicant makes the following points:

1. The applicant is not seeking to re­litigate matters previously determined.
2. The applicant's claim is a series of facts he seeks to rely on, and is not formulated as legal pleadings.

1. Certain facts are presented to contextualise the applicant's claim of victimisation.

1. No 'improper purpose' on the part of the applicant has been identified by the respondent. The applicant's cause of action is genuine, in that he is sincerely seeking review of his victimisation. He is not engaged in this matter for pecuniary benefit.

50 In relation to the respondent's claim that the applicant's general allegation of harassment and bullying is non­specific, he contends that his original 11 page letter to the Commissioner in January 2014 was detailed and his complaints were subsequently particularised in August 2016.

51 Finally, the applicant says that any application to dismiss a proceeding should be approached with caution. The applicant says that it is not possible to say without doubt that there is no question to be tried or that there is no reasonable prospect of success and that it is inappropriate to dismiss even a part of this matter because of the following circumstances:

1. Although both the applicant and his daughter have legal training, they are unfamiliar with this jurisdiction.
2. The applicant is 70 years old with a number of health conditions, which mean that he is clearly unable to precisely set out his claim in writing.

1. The applicant's daughter terminated her employment as a family lawyer to assist the applicant with this case.

1. The application was made under restrictive conditions, while the applicant was in confinement.
2. Both the applicant and his daughter are functioning under extreme difficulty with limited resources.
3. Accordingly, the standard principles that apply to self­represented litigants should, the applicant says, apply in this case.

Can the Tribunal under s 107 of the EO Act hold an inquiry into all of the allegations contained in the applicant's statement?

52 In summary, the EO Act relevantly provides that a complaint about a contravention of the EO Act is to be lodged with the Commissioner; s 83(1). The Commissioner must then investigate that complaint; s 84. If the Commissioner dismisses the complaint under s 89, the complainant may require the Commissioner to refer the complaint to the Tribunal and the Commissioner must do so; s 90. The Tribunal must then hold an inquiry into that complaint; s 107(3).

The jurisdiction of the Tribunal, which is created by s 107 of the EO Act, derives from referrals by the Commissioner or referrals by the relevant Minister. The Tribunal's jurisdiction is limited to the complaint referred to it by the Commissioner and does not extend to allegations that are not in the original complaint lodged with the Commissioner; Summerville and Department of Education & Ors [2006] WASAT 174 at [11] ­ [12].

54 The Tribunal held in Summerville and Department of Education & Ors [2006] WASAT 174 at [12]:

While [the issue of whether the applicant has raised issues before the Tribunal which go beyond the complaint determined by the Commissioner for Equal Opportunity] is a preliminary point, it is an important one as the Tribunal in equal opportunity matters does not have a roving commission to consider fresh complaints. If a person has fresh complaints, they must be referred to the Commissioner and dealt with in accordance with the requirements of the Equal Opportunity Act 1984.

56 Clearly it is a statutory function of the Commissioner under the EO Act to receive and investigate complaints at first instance. For the Tribunal to investigate a complaint which has not yet been considered by the Commissioner would be to usurp that statutory function. In my view, the Tribunal has no power to hold an inquiry in respect of any such a complaint.

57 Further, after the Commissioner has referred a complaint to the Tribunal and the complainant during the course of the subsequent proceeding then seeks to include new factual allegations, then obviously the Commissioner could not have investigated those allegations to any extent. Again, in my view, the Tribunal's jurisdiction is not enlivened in respect of those allegations. Any factual allegations not included in the complaint to the Commission cannot be considered by the Tribunal: see Sanzana at [20].

58 It is therefore necessary to consider the allegations contained in the original complaint to the Commissioner in the light of the factual allegations which the applicant is now making.

59 I have already set out in full the applicant's original complaint in his letter to the Commissioner dated 7 January 2014. I agree with and adopt the respondent's summary of the allegations contained in that complaint as set out earlier in these reasons at [38].

60 Comparing those allegations with the facts now asserted by the applicant set out at [36], I also agree with the respondent's conclusion that there are only two allegations now being made against the respondent which were contained in the initial complaint to the Commissioner. Those allegations are that:

1. in November and December 2013 the applicant was forced to sign out all of his property, including legal materials; and
2. the applicant was harassed and bullied (or similar) by Assistant Superintendent Giblett and other prison officers.

61 The remaining allegations set out or referred to in the applicant's statement of issues, facts and contentions are not part of what was originally complained about and therefore are beyond the Tribunal's jurisdiction to inquire into. I consider that they should be struck out under s 47 of the SAT Act as an abuse of process.

Should the allegation of bullying and harassment also be struck out as an abuse of process?

62 I now turn to the respondent's submission that the applicant's allegation that he was harassed and bullied (or similar) by Assistant Superintendent Giblett and other prison officers should also be struck out because it is embarrassing and so constitutes an abuse of process.

63 The respondent submits that the applicant's letter to the Commission dated 7 January 2014, which sets out his general allegation of bullying and harassment, is vague and general and lacking in particulars. It does not sufficiently particularise his complaint of general harassment and bullying and, if this matter were to proceed to final hearing, the respondent would be prejudiced.

64 The applicant on this point repeats his contention that the allegation of general bullying is sufficiently particularised in his original complaint to the Commissioner. However, he says that, even if his general allegation of harassment and bullying is not sufficiently specific, this does not constitute an abuse of process.

65 I disagree with the applicant that the general allegation of bullying is sufficiently particularised in the applicant's original complaint to the Commissioner.

66 I note that the Commissioner shares this view. As I have already mentioned, when the Commissioner received the applicant's complaint, which was on or around 14 January 2014, one of her conciliation officers wrote back to the applicant informing him that 'there is insufficient information [in your complaint] regarding your allegations to commence an investigation into your concerns'. She asked the applicant to identify the incidents of victimisation in chronological order (key dates, what happened, when and where did it happen ­ including which prison) and explain why the applicant believes that it is victimisation. The Commissioner cautioned the applicant that unless he provided that information, the Commissioner may dismiss his complaint under s 89 of the EO Act.

67 The Commissioner requested that the applicant provide that information in writing by 24 February 2014.

68 The Commissioner then wrote again to the applicant on 12 March 2014 and, as I have already said, it can be inferred from the terms of that letter that the applicant did not provide that information. Had the applicant done so, the situation in which he finds himself now would not have arisen.

69 The Commissioner said in that letter that she had considered all the material regarding the applicant's complaint of victimisation and after considering it she had decided that the complaint of victimisation was lacking in substance and dismissed it. She asked whether the applicant wished the matter to be referred to the Tribunal under s 90 of the EO Act and it was only in response to that letter, on 23 March 2014, that the applicant wrote back to the Commissioner.

70 That might have been a further opportunity for the applicant to provide the details requested by the Commissioner, if necessary by way of a new complaint, given that the original complaint had by this time been dismissed. However, the applicant again chose not to do so. Instead, he requested the Commissioner to refer to the matter to the Tribunal. He made mention of the difficulties he had been experiencing in contacting the Commissioner, but only in the context of how he had tried to exercise his right to have the matter referred to the Tribunal, not in the context of his failure to provide the further information requested by the Commissioner.

71 I have considered whether, in fairness to the applicant, I should allow the applicant to amend his statement of issues, facts and contentions to include further details of the bullying and victimisation. However, I have decided not to do so. To allow the applicant to amend his statement of issues, facts and contentions in this way and at this point in the proceeding would be tantamount to allowing the applicant to expand his original complaint to the Commissioner. As I have already concluded, the detailed allegations of bullying and harassment would not have been investigated by the Commissioner and therefore the Tribunal would have no jurisdiction to hear them.

72 I have therefore determined that the general allegation of bullying and victimisation should also be struck out on the basis that it is embarrassing and constitutes an abuse of process in that the respondent is unable to respond properly to it.

73 I have considered whether it is possible to strike out the objectionable parts of the applicant's statement of issues, facts and contentions and I have concluded that it is not. Accordingly, the Tribunal's orders will be that the applicant's statement of issues, facts and contentions is struck out in its entirety and leave be given to the applicant to file an amended statement of issues, facts and contentions limited to the allegation that the applicant in November and December 2013 was forced to sign out all of his property, including legal materials.

1. Pursuant to s 47(1) of the State Administrative Tribunal Act 2004 (WA), the applicant's statement of issues, facts and contentions filed on 17 August 2016 is struck out as an abuse of process.
2. Within 28 days, the applicant is to file and serve an amended statement of issues, facts and contentions, limited to his allegation that in November and December 2013 the applicant was forced to sign out all of his property, including legal materials, failing which the proceeding will stand dismissed.
3. Within 28 days of service of the applicant's amended statement of issues, facts and contentions, the respondent is to file and serve a statement of issues facts and contentions which it says arise in this proceeding.
4. The proceeding is adjourned to a further directions hearing at 10 am on 20 March 2017 in order to program the matter to a final hearing.

I certify that this and the preceding [73] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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