Dezfouli v Justice Health and Forensic Mental Health Network

NCAT Administrative and Equal Opportunity|2018-03-06|Before: Dr J, Health J

Solicitors: Applicant by telephone Justice Health and Forensic Mental Health Network, forensic legal adviser (first respondent) NSW Nurses and Midwives Association, legal officer (second respondent) File Number(s): 2018/00052187

REASONS FOR DECISION

Mr Dezfouli wants the Tribunal's permission to proceed with complaints of sexual harassment against a nurse and her employer, and a complaint of victimisation against the employer.
Mr Dezfouli complained that a nurse, employed by the first respondent (which I will refer to, for convenience, as "Justice Health"), sexually assaulted and sexually harassed him in breach of the Anti-Discrimination Act 1977 (NSW) ("AD Act"). Mr Dezfouli also complained that he was victimised by other nurses after making a complaint. The President of the Anti-Discrimination Board ("President") declined to accept his victimisation complaint for investigation and, after an investigation, declined his other complaints as lacking in substance: AD Act, ss 89B(1), 92(1)(a)(i).
The Tribunal may give Mr Dezfouli permission for his complaints to go ahead if it is fair and just to do so: Jones v Ekermawi [2009] NSWCA 388; AD Act, s 96(1). The onus is on Mr Dezfouli to satisfy the Tribunal that leave should be granted: Bacirongo v ACL Pty Ltd [2011] NSWADT 12 at [2]; Pribicevic v State of New South Wales (Department of Family and Community Services) [2014] NSWCATAD 94 at [3].

Background

Mr Dezfouli is an in-patient in a forensic hospital. On 18 June 2016, Mr Dezfouli complained to the Health Care Complaints Commission ("HCCC"), saying that a nurse, Shane van Herp (the second respondent), had sexually harassed him. He claimed that, the day before, she gave him a piece of paper as he came out of the bathroom then grabbed his genitals and said "Oh, I love this." He also said, in the letter of complaint, that he had woken up at least four times in the last three years "with the hand of a nurse in my pants who wanted to perform oral sex on me."
With the agreement of the HCCC, Justice Health investigated the complaint and found it to be unsubstantiated.
The Police attended the forensic hospital to investigate the complaint on 9 August 2016, but Mr Dezfouli refused to make a statement. The "COPS event" records: "It should also be noted that the VIC has a history of making fictitious complaints/allegations in the past to numerous different organisations."
On 10 April 2017, Mr Dezfouli lodged a complaint with the Anti-Discrimination Board alleging sexual harassment by Ms van Herp. He attached his letter of complaint to the HCCC.
On about 24 July 2017, the President's delegate declined to accept Mr Dezfouli's complaint of victimisation for investigation, but accepted for investigation, pursuant to s 89B of the AD Act, a complaint of sex discrimination and sexual harassment against Justice Health and a complaint of sexual harassment against Ms van Derp, in the period 17 June 2016 to 10 April 2017.
Justice Health relied upon its internal inquiry and the Police investigation, and supported Ms van Herp's account. Ms van Herp strongly denied the allegations.
In his response to the submissions of Justice Health and Ms van Herp, Mr Dezfouli alleged, among other things, that another (named) nurse had sexually harassed him in March or April 2017. Mr Dezfouli annexed a number of letters and other documents to the material he sent to the Anti-Discrimination Board. These included: 1. a letter from Justice Health to Mr Dezfouli in September 2017, denying that the Australian Federal Police had asked it to "silence" Mr Dezfouli, as he had alleged; 2. the first page of a letter from the Independent Commission Against Corruption to Mr Dezfouli, date stamped 7 January 2008, referring to complaints Mr Dezfouli had made about Justice Health referring to "insults, assault, injury, and being placed in seclusion with bones broken, being kept naked in a cell for a number of days and being treated with numerous chemicals"; and 3. a letter from the Health Care Complaints Commission to Mr Dezfouli dated 11 October 2005, declining to investigate allegations Mr Dezfouli had made against Justice Health, including that patients were grabbed and dragged to the cells and that they got injected whilst being assaulted and that a number of patients were kept in segregation by false and fabricated accusations and allegations lodged against them by the nurse or prison officers; 4. an extract from a report of Dr Dayalan (presumably a psychiatrist) dated 31 August 2017 to the Mental Health Review Team which stated that, on 10 July 2017, Mr Dezfouli said that his primary nurse had placed her hand on him whilst dispensing medication in March 2017 and made a statement that she had feelings for him.
The President's delegate declined the complaints against Justice Health and Ms van Herp on 5 December 2017. On 22 December 2017, Mr Dezfouli requested the President to refer his complaint to the Tribunal.

Parties' submissions at hearing

Mr Dezfouli made a number of submissions in support of his position that the Tribunal should grant leave, under s 96(1) of the AD Act, for his complaint to be the subject of proceedings before the Tribunal. In response to the submission of Justice Health that there was no evidence of the alleged sexual assault, he said that no evidence could be expected in the absence of CCTV cameras. He compared himself to the persons making allegations against George Pell, suggesting that victims of sexual offences were often in the position where they had no evidence, other than their own testimony, of what occurred.
Mr Dezfouli denied that Justice Health had conducted an internal inquiry, saying that it did not interview him. He said that the reason he did no pursue his complaint with the Police was to reduce the possibility of reprisals.
Mr Dezfouli also said he had been victimised after making his complaint of sexual harassment, in that other staff then refused to interact with him.
Mr Sterry, for Justice Health, submitted that there was insufficient evidence to support Mr Dezfouli's complaint. He submitted that Mr Dezfouli had fabricated a large number of complaints including to the Anti-Discrimination Board, the Ombudsman and the Supreme Court. Many of these, according to Mr Sterry, had been dismissed. He said that this particular complaint was a continuation of a vendetta against Justice Health. However, Justice Health did not provide any evidence in support of these submissions.
Ms Toose, who represented Ms van Herp, also referred to the applicant's lack of evidence in support of his allegations and submitted that Mr Dezfouli habitually sought to raise complaints which were baseless. Ms Toose did not provide any evidence in support of this submission.

Victimisation complaint

All parties made submissions at the hearing as to whether Mr Dezfouli's victimisation complaint should be allowed to proceed.
As indicated above, the President's delegate declined to accept Mr Dezfouli's complaint of victimisation for investigation on or about 24 July 2017 (see AD Act, s 89B(1)). This decision is not reviewable by the Tribunal (see AD Act, s 89B(4)). Because the complaint of victimisation was not investigated, it is not a complaint which was referred to the Tribunal pursuant to s 93A of the AD Act.
For these reasons, the Tribunal does not have jurisdiction to consider Mr Dezfouli's victimisation complaint.

Sexual harassment complaint against nurse and Justice Health

The President's delegate accepted, for investigation, a complaint of sexual harassment in the provision of services against Ms van Herp and her employer, Justice Health. These complaints were referred to the Tribunal at the request of Mr Dezfouli.
To succeed in a complaint of sexual harassment against either of the respondents, Mr Dezfouli would have to prove that, in the course of receiving services from a person, that person engaged in unwelcome conduct of a sexual nature in relation to him in circumstances in which a reasonable person would have anticipated that Mr Dezfouli would be offended, humiliated or intimidated (AD Act, ss 22A and 22F).

Identification of services

Mr Dezfouli has not identified the services that he was receiving at the relevant time from either respondent. 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."
McHugh J also stressed the importance of defining the relevant services with precision in Waters v Public Transport Corp (1991) 173 CLR 349, where his Honour said (at 404-5) "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."
The Full Court of the Federal Court has likewise observed that the way in which the service is identified is critical: Rainsford v State of Victoria [2008] FCAFC 31 at [72].
Mr Dezfouli's failure to identify the services with which he was provided makes it more difficult for him to discharge his onus of persuading me that the complaint should proceed.

Are either of the respondents providing a service within the AD Act?

The term "services" is defined in s 4(1) of the AD Act to include: "(a) services relating to banking, insurance and the provision of grants, loans, credit or finance, (b) services relating to entertainment, recreation or refreshment, (c) services relating to transport or travel, (d) services of any profession or trade, (e) services provided by a council or public authority, (f) services consisting of access to, and the use of any facilities in, any place or vehicle that the public or a section of the public is entitled or allowed to enter or use, for payment or not."
The definition is inclusive and the term "services" has its ordinary meaning (IW v City of Perth (1997) 191 CLR 1 at 23; State of New South Wales v Whiteoak [2014] NSWCATAP 99 at [145]-[147]). The only one of the specified examples which appears to be potentially applicable is "services provided by a … public authority" (paragraph (e)). However, there must be some doubt as to whether Justice Health was providing Mr Dezfouli with "services" whilst he was detained in a forensic hospital.
In Rainsford v Victoria (2007) 96 ALD 90; [2007] FCA 1059, Sundberg J found, in relation to a complaint under the Disability Discrimination Act 1992 (Cth), that neither the transportation of prisoners nor the accommodation of prisoners in cells within the prison system was the provision of a "service" for the purposes of that Act (at 106 [76]-107 [79]). On appeal, the Full Federal Court (Tamberlin, North and Mansfield JJ), without deciding the matter, observed that it saw "some strength in the view that the provision of transport and accommodation, even in a prison, may amount to a service or facility" (Rainsford v State of Victoria [2008] FCAFC 31 at [9]).
The President of this Tribunal, Justice Wright, considered the meaning of the terms "service" and "services" in the context of s 19 of the AD Act in State of New South Wales v Whiteoak [2014] NSWCATAP 99. Section 19 makes it unlawful for a person who provides goods or services to discriminate against another person on the ground of race, in certain ways. The phrase "goods and services" in s 19 is also used in s 22F and is, in my view, to be interpreted in the same way.
Justice Wright gave detailed consideration to the relevant authorities as to the meaning of the word "services" in anti-discrimination legislation and made the following comments about its proper construction: 1. "services" in its ordinary meaning refers to those activities done for the purpose of supplying the needs of, providing assistance to, doing work for or providing help to persons (at [155]); 2. activities resulting in a benefit to a person are not necessarily activities amounting to "services" provided to that person (at [156] and [200]); 3. if a governmental function or statutory duty is being performed and the persons affected have no ability to decide whether to accept or reject what is done or the outcome, it is unlikely that services are being provided in those circumstances (at [158]). This is because the ordinary meaning of "services" does not include "a fundamental integer of a system over which those affected have no or almost no control" (at [211]).
As Mr Dezfouli has not identified the putative "services" which were being provided to him, it is impossible to determine whether they were "services" as defined under the AD Act. Possibilities include the provision of nursing services to Mr Dezfouli in the forensic hospital and the delivery of mail to Mr Dezfouli in the forensic hospital. In either case, it may be, that because Mr Dezfouli is detained in the facility against his will, he has no ability to decide whether to accept or reject what is done, and the activities are not "services" within the AD Act.
Mr Dezfouli would also have to establish that he was sexually harassed "in the course of" receiving the identified services. This would be a matter for evidence.
There are thus some significant legal obstacles to Mr Dezfouli establishing that he was sexually harassed "in the course of" receiving "services" from Justice Health or Ms van Herp. The test as to whether a complaint should be given leave is not the same as that for determining whether to summarily dismiss a complaint because it lacks substance: Kuruppa v Director General, Department of Justice and Attorney General [2011] NSWADT 51 at [2]. This means that the Tribunal does not need to consider whether Mr Dezfouli lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious. Rather, the question for the Tribunal is whether it is fair and just for the complaint to proceed. The legal obstacles for Mr Dezfouli in establishing that he was provided with a service tend against it being fair and just for the complaint to proceed, because they mean that his prospects of succeeding, if the matter were to proceed, are lower.

Did Ms van Herp engage in unwelcome conduct of a sexual nature?

To succeed in his sexual harassment complaint, Mr Dezfouli would need to establish that Ms van Herp engaged in unwelcome conduct of a sexual nature towards him.
This is a situation in which a complainant alleges that sexual harassment occurred with nobody else present, and the alleged perpetrator denies that the alleged conduct occurred. As Mr Dezfouli pointed out, many instances of alleged sexual abuse occur in situations where nobody other than the alleged perpetrator and alleged victim are present. It would not be just for the Tribunal to decline to allow such complaints to proceed, solely on the basis that there are no witnesses to the conduct the subject of the complaint. There are many cases in which it would be just for a complainant of sexual harassment to have the opportunity to cross examine the alleged perpetrator and to attempt to persuade the Tribunal, on the balance of probabilities, that the alleged conduct occurred.
There are, however, in this case, factors which make it unlikely that Mr Dezfouli would be able to prove that Ms van Herp engaged in the alleged conduct of grabbing his genitals and making a suggestive comment. Mr Dezfouli has made a lot of complaints in the past, many about the conduct of Justice Health and its staff members. Whilst the respondents did not provide evidence of these complaints, Mr Dezfouli provided the Anti-Discrimination Board with material relating to some of those complaints, as outlined above, which is before the Tribunal. These make extremely serious and quite outrageous allegations, with little supporting material (certainly insufficient material to reach the state of reasonable satisfaction referred to in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362). Mr Dezfouli has recently complained that at least two other named nurses sexually harassed him and that four nurses, whose names he has not provided, woke him up, wanting to perform oral sex on him.
Mr Dezfouli has also made previous complaints of sexual harassment in the Tribunal. In the case of Dezfouli v Justice Health and Anor [2008] NSWADT 99 at [3], Magistrate Hennessy describes a sexual harassment complaint made by Mr Dezfouli, relating to the period of 2005 to 2006, as follows: "The sexual harassment complaint alleges that nurses have touched his arms and hands while talking to him which made him uncomfortable. He also says that he has been improperly touched around the genitals by prison officers while they were searching him. He alleges that officers have made improper comments such as "big dick". According to Mr Dezfouli, a night nurse once said to him, "If you put your dick out of the latch I will suck it for you". He said he told the nurse to "fuck off" or he would call the prison officer."
Whilst it is possible that all of his allegations of sexual harassment have substance, the evidence indicates that none of the allegations referred to in these reasons have been substantiated. I consider that it is likely that the respondents would be successful in establishing, to the civil standard, that Mr Dezfouli habitually makes allegations which are without substance, including about being sexually harassed. This would cast considerable doubt upon his claims about the conduct of Ms van Herp.

Circumstances in which a reasonable person would have anticipated that Mr Dezfouli would be offended, humiliated or intimidated

If Mr Dezfouli could establish that the conduct occurred, I consider that he would have very good prospects of establishing that a reasonable person would have anticipated that he would be offended, humiliated or intimidated by the conduct.

Is Justice Health vicariously liable for the unlawful acts of its employee?

No submissions were made on this point.

Conclusion - sexual harassment

I am not persuaded that it is fair or just for Mr Dezfouli's complaints of sexual harassment against the respondents to proceed. Having regard to the matters raised above, including both the legal and evidentiary obstacles faced by Mr Dezfouli, I consider that it is very unlikely he would be able to substantiate those complaints.

Sexual discrimination complaint

The President characterised Mr Dezfouli's complaint as including a complaint of sexual discrimination in the provision of services. At the hearing, Mr Dezfouli made clear that he was not pressing for the sexual discrimination complaint to proceed.
Had he done so, I would not have been satisfied that it would be fair or just for the complaint to proceed. The complaint suffers from the same difficulties as the sexual harassment complaint in terms of the lack of identification of the services provided (AD Act, s 33(1)(b)), the question of whether those services are "services" within the AD Act and the difficulties in establishing the factual basis of the claim. Further, Mr Dezfouli has not indicated how he could demonstrate that he was treated less favourably than another person "on the ground of" his sex (AD Act, s 24(1)(a)).

Order 1. Leave to proceed with the complaints of sexual harassment and sexual 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: 16 April 2018

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