Dezfouli v Justice Health [2002] NSWSC 1082 | Case summary

REASONS FOR DECISION 1 This is an appeal by Saeed Dezfouli, filed on 26 June 2008, against a decision of a Tribunal comprising Judicial Member Pearson in Dezfouli v Justice Health [2008] NSWADT 175 in respect of two applications for review made by Mr Dezfouli under the Freedom of Information 1989 ('the FOI Act'), file numbers 073150 and 073263. Written reasons for the decision were provided on 17 June 2008. 2 The background to the review was set out by the Tribunal in its decision and need not be repeated here. Essentially, Mr Dezfouli, who is a patient at Long Bay Forensic Hospital, made applications to Justice Health for access to his "medical file", covering the period 28 February 2006 to 13 April 2006 (file no 073150), and for access to his "medical records" from 19 October 2006 to 1 January 2007 (file no 073263). The Tribunal's decision was to affirm the decisions under review pursuant to which Mr Dezfouli was granted full or partial access to some documents and was refused access to other documents. 3 The Tribunal was satisfied that the exemptions contained in Schedule 1 of the FOI Act, clauses 4(1)(a), (c) and (h) (documents affecting law enforcement and safety), 6 (documents affecting personal affairs) and 16(a)(iv) and (b) (documents concerning operations of agencies) applied to the material to which access was refused by Justice Health. Further, the Tribunal found there were no strong grounds justifying overriding the exemptions so that the material could be released. 4 Mr Dezfouli's appeal against the Tribunal's decision relies on the following grounds: (1) that the decision was contrary to the provisions of the Evidence Act 1995; (2) that there was no evidence to support certain findings of fact; and (3) that the Judicial Member displayed actual bias by (a) not providing Mr Dezfouli with a proper opportunity to present his case, thereby failing to afford him procedural fairness, and (b) making reference to her previous decision involving the same parties. The parties made both written submissions and, at a hearing on 30 October 2008 when Mr Dezfouli participated by telephone, further oral submissions. (1) Was the decision contrary to the provisions of the Evidence Act 1995? 5 Mr Dezfouli submits the Judicial Member breached provisions of the Evidence Act. He has not, however, identified the relevant provisions of the Act he alleges were breached. He contends further that the fact that the statement by AB, on whose evidence the Judicial Member relied, was false, was also in breach of the Act. Again, Mr Dezfouli has not identified the provision he contends was breached. 6 Ms Mattes states, correctly, that the Tribunal is not bound by the rules of evidence. Section 73(2) of the Administrative Decisions Tribunal 1997 ('the ADT Act') states: (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. However, the Tribunal should, nevertheless, be guided by the principles in the Evidence Act and rely only on evidence that is probative and reliable: see, for example, Cianfrano v Director General, Premier's Department (GD) [2006] NSWADTAP 48. 7 Essentially, Mr Dezfouli disputes the truthfulness of AB's evidence and contends that the Judicial Member should not have relied on that evidence. This is a matter considered specifically in relation to the second ground of appeal, below. However, in relation to the first ground of appeal, the Appeal Panel is not satisfied that there was a breach of the Evidence Act either by the Judicial Member, who, as stated, was not bound by the Act, or in relation to the statement made by AB. Thus, the first ground of appeal must fail. (2) Was there evidence to support the Tribunal's findings of fact? 8 Mr Dezfouli contends that the Tribunal's decision was "based on an untrue, false, fabricated, inaccurate and misleading" witness statement by AB, an employee of Justice Health. Mr Dezfouli said although he wrote to the Tribunal and supplied a number of relevant documents to provide a contrary view to that expressed by AB, the Tribunal ignored this evidence. At the appeal hearing, Mr Dezfouli said he wanted the Tribunal to take into account alternative evidence about the treatment of patients by staff at Long Bay Forensic Hospital. He said the regime is an oppressive and repressive one in which patients are kept in solitary confinement for 18 hours a day. He has been victimised and, on occasions, been forced to undergo treatment without being given information about the treatment or its effect. 9 Mr Dezfouli said the infrastructure at the Hospital is not conducive to the avoidance of conflict, and staff behaviour is often provocative - for example, through insults or intimidation - and triggers aggressive or violent behaviour by inmates. In its decision, the Tribunal refers to the violent behaviours of patients. In his experience, only two staff have been assaulted in seven years, and this was only after staff provocation. He said AB's statement does not describe the reality of what occurs. For example, the Tribunal refers to rehabilitation provided to patients. He is not currently receiving any rehabilitation. He is only allowed outside his cell for six hours a day. AB's statement refers to comprehensive and accurate notes being maintained by staff of matters relevant to the treatment of patients. Mr Dezfouli says this is not happening. He said staff are often engaged in computer games, crosswords, reading the newspapers etc and not in their work. 10 Ms Mattes said Mr Dezfouli has not provided any reason why the veracity of the witness AB should be doubted. Moreover, even if Mr Dezfouli were able to demonstrate some error in the findings of fact as a result of the Judicial Member relying on AB's statement, this would not, of itself, constitute an error of law: RL & D Investments Pty Ltd v Bisby [2002] NSWSC 1082, per Kirby J at [13]. An appellate body will ordinarily respect findings of fact made by a lower court or tribunal unless there is no evidence to support the findings made. 11 Ms Mattes states that, in this instance, the Tribunal made a number of findings of fact based on the open and confidential statements of AB. These findings were clearly open to the Tribunal on the evidence before it and there was no error of law. It is not sufficient for Mr Dezfouli to state that he disagrees with the findings. 12 The Appeal Panel has reviewed the findings of fact made by the Tribunal. The Judicial Member relied on AB's statement and the documents before her in making her findings. In paragraph 35 of her statement of reasons, she refers to AB's statement for its outline of "the role of Justice Health, the operation of the Long Bay Forensic Hospital and ... information on the treatment of patients". In relation to Mr Dezfouli's evidence and submissions, the Judicial Member stated, at paragraph 38: "While the applicant is unhappy with the diagnosis and the statements made about him, his submissions do not contest the general points made by AB as to the nature of the environment at Long Bay Forensic Hospital and the treatment of patients." 13 The Appeal Panel recognises that Mr Dezfouli is concerned with the accuracy of AB's statement in terms of the reality of the day-to-day situation at Long Bay Forensic Hospital. The Tribunal's jurisdiction, however, was limited to reviewing Justice Health's determination to refuse access to the whole or part of documents sought by Mr Dezfouli under the FOI Act. The Tribunal's focus, therefore, was on whether the exemptions claimed by Justice Health in respect of those documents were justified. As the Tribunal pointed out in paragraph 16, pursuant to section 61 of the FOI Act, Justice Health bore the onus of establishing that its determination was justified. 14 The exemptions on which Justice Health relied were those contained in Schedule 1 clause 4(1)(a), (c) and (h) (documents affecting law enforcement and safety), clause 6 (documents affecting personal affairs), and clause 16(a)(iv) and 16(b) (documents concerning operations of agencies). Justice Health bore the onus of establishing, on the balance of probabilities, that the documents in issue contained "matter" the disclosure of which would give rise to the consequences set out in the exemption relied on. 15 For example, in order to establish that a document or part of a document was exempt under clause 4(1)(h), Justice Health was required to provide evidence establishing, on the balance of probabilities, that the document contained matter the disclosure of which could reasonably be expected "to prejudice any system or procedure for the protection of persons or property". The terms of this exemption required a focus on systems or procedures for the protection of persons or property and the expected prejudice that could reasonably be expected if matter in the document were to be disclosed. 16 Clause 16(a)(iv) is of a similar nature. Reliance on this exemption required Justice Health to provide evidence that a document or part of a document contained matter the disclosure of which could reasonably be expected "to have a substantial adverse effect on the effective performance by an agency of the agency's functions". Thus, the terms of the exemption required a focus on the functions vested in Justice Health and whether the disclosure could have the requisite effect on its functions. 17 When considering whether reliance on a claimed exemption can be justified, the broader framework of the FOI Act must also be considered and in particular the objects of the Act stated in section 5. These include conferring on the public "a legally enforceable right to be given access to documents held by the Government, subject only to such restrictions as are reasonably necessary for the proper administration of the Government" (section 5(2)(b)). It is the particular character of documents that will, therefore, often be relevant, something that must be assessed in an objective and relatively abstract way. 18 In the present case, some of the exemptions relied on by Justice Health required consideration of broader questions such as its functions as an agency, the systems it had in place to facilitate the performance of those functions, and the character of the documents to which access had been refused. Clearly, Justice Health relied on AB's evidence in this regard and the Judicial Member summarised that evidence in paragraph 35 of her statement of reasons. The evidence addressed the role/functions of Justice Health in providing care and rehabilitation to forensic patients and mentally ill inmates hospitalised in Long Bay Forensic Hospital, the structure of the Hospital and the treatment of patients, including, for example, staffing and record keeping systems. These are matters of a general operational nature and such evidence was relevant in determining the character of particular documents where access was in issue. Evidence as to whether patients had been diagnosed correctly, the appropriateness or sufficiency of treatment provided, or the accuracy of records was not relevant in conducting the Tribunal's review, as the Judicial Member recognised at paragraph 38 of her statement of reasons. 19 While Mr Dezfouli may disagree with the findings of fact made by the Judicial Member and her reliance on AB's evidence, the Appeal Panel agrees with Ms Mattes that it was open to the Judicial Member to make those findings. The Panel is satisfied that the Judicial Member took Mr Dezfouli's evidence into consideration - referred to in paragraph 38 of her statement of reasons - and it is evident from her comments in paragraph 39 that she considered AB to be a reliable witness. 20 In RL & D Investments Pty Ltd v Bisby [2002] NSWSC 1082, Kirby J said, at paragraph 12: "In Australian Gaslight Co v Valuer-General (1940) 40 SR (NSW) 126, Jordan CJ considered the nature of an appeal on a question of law. He distilled from the authorities a number of propositions. Relevantly, he said this (omitting references) (at 138): '(3) A finding of fact by a tribunal of fact cannot be disturbed if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its finding, and there is evidence capable of supporting its inferences. (4) Such a finding can be disturbed only (a) if there is no evidence to support its inferences, or (b) if the facts inferred by it and supported by evidence are incapable of justifying the finding of fact based upon those inferences, or, (c) if it has misdirected itself in law.'" 21 In the present matter, there was nothing unsound about the Judicial Member's reasoning process. Indeed, the Judicial Member set out clearly her reasoning and the specific evidence upon which she relied in determining that the exemptions claimed by Justice Health applied. As noted above, the Judicial Member focused principally on broader questions such as Justice Health's functions as an agency, the systems it had in place to facilitate the performance of those functions, and the character of the documents to which access was sought, all of which was relevant to whether she was satisfied that Justice Health had established that reliance on the exemptions claimed could be justified. The Judicial Member was not required to consider how well Justice Health performed its functions, because this was not relevant to the issue she was required to determine. 22 The Panel is not therefore satisfied that the Tribunal made an error of law in relation to its findings of fact, and the second ground of appeal must fail. (3)(a) Did the Tribunal display actual bias by not providing Mr Dezfouli with a proper opportunity to present his case, thereby failing to afford him procedural fairness? 23 Mr Dezfouli said the Judicial Member ignored his request for an opportunity to cross-examine AB and thereby denied him a proper opportunity to respond to Justice Health's evidence in presenting his case. He is seeking access to a fax sent by the Australian Federal Police, which is on his medical file (referred to in paragraph 26 of the Tribunal's statement of reasons), because he believes this document has had an adverse effect on his situation in the Hospital. Mr Dezfouli said most of the documents in his medical file are incorrect, out of date or misleading (referring to section 5(1) of the FOI Act). 24 Ms Mattes submitted that Mr Dezfouli did have an opportunity to respond to material filed by Justice Health and availed himself of this opportunity, including sending material to the Tribunal for consideration. The Judicial Member's reasons, at paragraph 38, show that she turned her mind to this material. With regard to Mr Dezfouli seeking to cross-examine AB, Ms Mattes said she was not aware that Mr Dezfouli had made such a request and, in any event, the matter was determined 'on the papers'. Moreover, it would have been appropriate to deny such a request since maintaining the confidentiality of the identity of the Justice Health staff was a principal issue. 25 The Appeal Panel examined the Tribunal files which showed that Mr Dezfouli sent a letter to the Tribunal dated 16 June 2008, received on 19 June 2008, requesting a further Planning Meeting and for AB to be summonsed to give evidence in relation to his statement. However, submissions closed on 20 May 2008 and the Judicial Member had finalised her decision on 17 June 2008, when the decision was published, two days before receiving Mr Dezfouli's letter. There is no indication on the Tribunal files that Mr Dezfouli had previously sought to cross-examine AB, which he acknowledged when asked about this at appeal hearing. The Appeal Panel therefore determined that in these circumstances, there was no substance to Mr Dezfouli's contention that the Judicial Member denied him an opportunity to cross-examine AB. 26 The Appeal Panel is also not satisfied that the Tribunal otherwise denied Mr Dezfouli procedural fairness. The Judicial Member's statement of reasons, at paragraph 38, refers to the documents provided by Mr Dezfouli and makes clear that the Judicial Member took these and his submissions into consideration in making her decision. It is also clear from the file that both parties agreed to the matter being determined 'on the papers'. Thus, the Panel is not satisfied that there is any substance to this ground of appeal. (3)(b) Did the Tribunal display actual bias by making reference to its previous decision involving the same parties? 27 Mr Dezfouli said the Judicial Member acted unfairly by relying on her previous decision in Dezfouli v Justice Health [2006] NSWADT 274. The Judicial Member was not prepared to rule against her previous decision and, therefore, failed to act impartially. 28 Ms Mattes submitted that the Judicial Member did not err in referring to an earlier decision in which she considered similar issues of fact and law. With regard to the law, the Judicial Member referred to her decision in order to restate her views on similar legal issues raised in both matters. By doing so, she was consistent in her application of legal principles. As the President of the Tribunal, O'Connor DCJ, stated in BY v Attorney General's Department [2002] NSWADT 79, at paragraph 22, a later Tribunal should "exercise caution in reopening prior, considered rulings of an earlier Tribunal". Consistency in decision-making by a Judicial Member is generally a desirable outcome and not a matter that can give rise to claims of actual or apprehended bias. 29 The Appeal Panel agrees with this submission. The fact that a Judicial Member has made a prior decision in relation to a similar matter is not evidence of either actual or apprehended bias. Actual bias is established where a decision-maker is shown to have been committed to a particular conclusion and had a closed mind to the issues raised: Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507, at [127]. Apprehended bias is demonstrated where "a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide": Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, at 344. 30 What is important is that, in each case, the Judicial Member must approach the matter before him or her with an impartial and open mind and make a determination on the evidence having given the parties a proper opportunity to present their cases including providing relevant evidence and making submissions. As Mason J pointed out in Re JRL; ex parte CJL (1986) 161 CLR 342, at 351: "There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way." 31 The Appeal Panel has examined the Tribunal's statement of reasons for the decision. The Judicial Member's reference to her prior decision in Dezfouli v Justice Health [2006] NSWADT 274 was to refer to similar factual material in that case, and to refer to her explanation of the relevant principles of law which were also applicable in her later decision. In the Panel's view there is no evidence to support either a claim of actual bias or of apprehended bias, and this ground of appeal must fail. Should the review be extended to the merits? 32 Section 113(2) of the ADT Act states that an appeal may only extend to a review of the merits of an appealable decision with the leave of the Appeal Panel. In Hinton v Commissioner for Fair Trading, Office of Fair Trading [2007] NSWADTAP 17, the Appeal Panel said, at paragraph 17: "While the Appeal Panel's discretion to grant leave is not qualified by the ADT Act (see, for example, Sunol v Collier [2006] NSWADTAP 51 at [29]), it should be exercised with caution and in the interests of justice. It is not enough that the appellant disagrees with the decision. The Appeal Panel is not designed to be a second trial level of the Tribunal. As McHugh J said in CDJ v VAJ [1998] HCA 76, (1998) 197 CLR 172 at [111] the power to permit an appeal on a question of fact is 'not intended to have the practical effect of obliterating the distinction between original and appellate jurisdiction'. Appeal Panels must recognise the importance of not interfering with soundly-made decisions. An appellant should normally, we think, demonstrate on persuasive grounds that a substantial injustice would result if the decision was allowed to stand." (See also Building Professionals Board v Hans (GD) [2008] NSWADTAP 13, at paragraphs 28 to 40.) 33 Ms Mattes submitted that there was no persuasive reason for the Appeal Panel to grant leave for the appeal to extend to the merits. She submitted that Mr Dezfouli has not identified any compelling reason for extending the appeal to the merits, nor has he demonstrated that a substantial injustice would result if the decision were allowed to stand. 34 Mr Dezfouli said his focus is the evidence. His observations and experience are very different from those of AB, whose evidence Mr Dezfouli believes is false and upon which the Judicial Member relied. English is his second language and it is very difficult representing himself over the telephone without access to legislation or case law. 35 The Appeal Panel is not persuaded that leave should be granted. Essentially, Mr Dezfouli's appeal has focused on his disagreement with the evidence upon which the Judicial Member relied in making her decision. This is reflected in the grounds of appeal addressed above. The Appeal Panel is not satisfied that there are other substantial reasons justifying the granting of leave. 36 Leave to extend the appeal to the merits is therefore refused. The Tribunal's decision dated 17 June 2008 is affirmed.

Dezfouli v Justice Health

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (11 paragraphs)

Parties

Cases Cited (5)

Cited By (50)