Dezfouli v Justice Health and Forensic Mental Health Network

Disability discrimination complaint

1. If the complaint were to proceed, Mr Dezfouli would have the onus of establishing that he had been discriminated against on the ground of disability in the provision of goods and services. Section 49M(1) of the AD Act provides: "49M Provision of goods and services (1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability: (a) by refusing to provide the person with those goods or services, or (b) in the terms on which he or she provides the person with those goods or services."
2. Section 49B(1) of the AD Act provides for what constitutes discrimination on the ground of disability. It provides: "49B What constitutes discrimination on the ground of disability (1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if the perpetrator: (a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply."
3. Discrimination can be direct or indirect: AD Act, s 49B(1)(a), (b). I understand Mr Dezfouli to be alleging that the respondent directly discriminated against him within s 49B(1)(a).
4. In summary, to prove direct disability discrimination, if the complaint were to proceed, Mr Dezfouli would have to prove that: 1. the respondent is a person who provides goods or services; 2. the respondent refused to provide Mr Dezfouli with goods or services or provided him with goods or services on unfavourable terms; 3. by doing so, the respondent treated Mr Dezfouli less favourably than it treated or would have treated a person without his disability in the same or similar circumstances (differential treatment); 4. one of the reasons for that treatment was his disability.

Does the respondent "provide goods or services"?

1. Mr Dezfouli has not clearly identified the "goods" or "services" which he says the respondent provided to him. As Magistrate Hennessy noted in relation to a previous discrimination complaint made by Mr Dezfouli (Dezfouli v Justice Health and Anor [2008] NSWADT 99 at [10]): "It is essential when alleging discrimination in the provision of services that the services that are being provided are precisely defined: IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 16-17 per Brennan CJ and McHugh J."
2. This point was earlier made in Waters v Public Transport Corp (1991) 173 CLR 349 at 404-405 by McHugh J, who said "the relevant goods or services must be identified with sufficient precision to relate them to the facts of the case and the issues which arise for determination."
3. The putative services and/or goods could be photocopying services or nursing services or possibly the paper and ink provided when copying (goods). Mr Dezfouli's failure to identify the services and/or goods with which he was provided makes it more difficult for him to discharge his onus of persuading the Tribunal that the complaint should proceed.
4. There is some doubt as to whether the respondent was providing Mr Dezfouli with "services" whilst he was detained in a forensic hospital (see Dezfouli v Justice Health and Forensic Mental Health Network [2018] NSWCATAD 83 at [27] to [34]). This is because the respondent is performing a governmental function or statutory duty and, depending upon the way in which the relevant "services" are identified, the persons affected may have no ability to decide whether to accept or reject what is done or the outcome (State of New South Wales v Whiteoak [2014] NSWCATAP 99 at [158]).
5. The respondent may have been providing Mr Dezfouli with goods, in the form of paper and ink, but it seems that the complaint is not primarily directed at the refusal to provide goods, but rather the refusal to allow him to photocopy more than 200 pages.
6. In light of the issues referred to above, Mr Dezfouli may have difficulties in discharging his onus of establishing that the respondent was providing him with relevant goods or services.

Refusal / unfavourable terms

1. If Mr Dezfouli establishes that the respondent was providing him with services (most likely photocopying services), or goods (most likely paper and ink), then it is conceded that the terms on which he was provided with those goods or services changed, in that he was restricted to 200 pages per month. These were less favourable terms than those which previously applied to him.
2. Mr Dezfouli contends that he was provided with those goods and/or services on less favourable terms than other people in the forensic hospital. Whether they were "less favourable" is discussed under "Differential treatment" below.

Differential treatment

1. In order to succeed in his claim, Mr Dezfouli would have to establish that the respondent's policy that he only be allowed copy 200 pages per month was treatment which was less favourable than the way the respondent would have treated persons without Mr Dezfouli's disability. Mr Dezfouli describes himself as having a psychiatric disability. This is not disputed.
2. Mr Dezfouli has produced a "photocopies and faxes" log sheet in his name, created by the respondent, which shows how many photocopies he made on any given date in March 2018. Mr Dezfouli claims that he is the only patient in the forensic hospital who has such a sheet. He claims that other patients can photocopy documents without being monitored or registered on a log sheet.
3. The respondent says that Mr Dezfouli's request for a high volume of photocopies had not been encountered by any other patient so there were no procedures or policies applicable to the situation. The hospital developed an interim procedure in relation to the number of photocopies allowed for all patients in the hospital, restricting all patients to 200 sheets per month. It says that this procedure is applied consistently to all patients in the hospital. It says, further, that the procedure was made to balance the rights of patients and the finite resources of the hospital. The Chief Executive of the hospital confirmed, in a letter to the Anti-Discrimination Board, that Mr Dezfouli is not the only patient required to complete a log sheet to record the number of photocopies being made.
4. The question of whether all patients are required to use a log sheet, or whether it is only Mr Dezfouli, is a question of fact which would turn on the evidence presented at hearing. Even if Mr Dezfouli could establish that he had been singled out, Mr Dezfouli has not provided any material to suggest that other patients in the forensic hospital to whom the restriction is not applied, do not also have a psychiatric disability. It may be that all of the patients in the forensic hospital have a psychiatric disability. Without evidence of this, it would be difficult for Mr Dezfouli to establish that the respondent treats patient without a psychiatric disability differently. There is no evidence or material to support that proposition before the Tribunal.
5. Mr Dezfouli could rely upon a hypothetical comparator who did not have a psychiatric disability. However, there is nothing before the Tribunal to indicate that such a person, if that person were a patient like Mr Dezfouli, would not also be subject to the photocopying restriction.

Causation

1. Mr Dezfouli claims that the reason for the restriction on him photocopying more than 200 pages a month is that the respondent's staff members believe that the complaints he is making in this Tribunal and other places, which provide the need for the photocopying, are based on his psychiatric disability. There is no evidence to support this claim. On the contrary, the respondent contends that the reason it is restricting photocopying is because of staff resources and other hospital costs.
2. Even if Mr Dezfouli could succeed on all of the other elements referred to above, there is very little to suggest that the cause of any differential treatment is his psychiatric disability.

Conclusion

1. For these reasons, the complaint lacks substance and it is not fair or just for it to proceed.

ORDER 1. Leave to proceed with the complaint of disability discrimination is refused.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 July 2018