Dezfouli v Justice Health and Forensic Mental Health Network

Legal Principles

1. A person may make a complaint to the President on their own behalf alleging that a person(s) has contravened a provision of the Act: s 87A(1)(a)(i) of the Act.
2. Where the President decides to accept a complaint under s 89B, she must investigate that complaint: s 90(1) of the Act. If the President is satisfied at any time of the investigation that the complaint is lacking in substance, she may decline the complaint in whole or in part: s 92(1)(a)(i). A complaint will be "lacking in substance" if it can be demonstrated that there exists no factual basis for the allegations or that the complaint is "not reasonably arguable": Langley v Niland [1981] 2 NSWLR 104 at 107 and Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 at [22].
3. Where, as here, the President declines a complaint under s 92 of the Act, the President must refer the complaint to the Tribunal if she has received a written request from the complainant to do so: s 93A of the Act. Where a complaint is referred to the Tribunal at the request of a complainant under s 93A(1), that complaint may not be the subject of proceedings before the Tribunal without the leave of the Tribunal: s 96(1) of the Act.
4. Section 96(1) gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones v Ekermawi [2009] NSWCA 388 at [58] (Jones); Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [25] ("Ekermawi"). That discretion must be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant's rights under that scheme: Jones at [57]; Ekermawi at [32]. The question of leave involves evaluating whether it is "fair and just" to grant or refuse leave in the particular circumstances of the case: Ekermawi at [36], [37]; Jones at [58]. In deciding whether to grant leave, the Tribunal may have regard to the grounds which the President may take into account in declining a complaint under s 92 of the Act: Jones at [60].
5. The onus is on the Applicant 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]. The applicant's evidence must be taken at its highest, that is, everything the applicant has put in evidence is accepted as true and then the Tribunal determines whether he could possibly succeed in his complaint of discrimination: Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35].

Discrimination on the ground of disability in the provision of goods and services

1. Section 49M of the 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) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services."
2. Discrimination can be direct or indirect. Section 49B(1) of the Act provides for what constitutes discrimination on the ground of disability: "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. The applicant would need to establish that the Respondent provides services, and that they were discriminated against (as defined by s 49B) in a manner which was unlawful under s49M. The conduct which is unlawful under s 49M is limited to either refusing to provide the services, or in the terms on which the services are provided. Terms are the conditions on which the service is or will be performed; they are not part of the manner of actual performance: Spence v Roberts (No 2) [2006] NSWADT 361 at [58-60]; Munt v Workers Compensation Independent Review Officer [2020] NSWCATAD 156 at [28-30]. Section 49M does not allow a complaint of discrimination to be brought in relation to the manner in which goods or services are provided.

"Services"

1. Where a respondent is performing a governmental function or statutory duty, 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, and the respondent may therefore not be providing "services": State of New South Wales v Whiteoak [2014] NSWCATAP 99 at [158]. In Robinson v Commissioner of Police, NSW Police Force [2013] FCA 770 it was held that "services" to a person covers activities which are helpful and beneficial to that person; therefore dealing with a person's bail application did not involve the provision of "services".
2. This Tribunal has previously considered whether the respondent was providing the Applicant 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], and stated at [32]: 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.

Consideration

1. The Applicant complained that he was subject to restrictions because of his disability which were not imposed on anyone else in the mental health unit, numbering some 130 patients, or within his ward, numbering 32 patients. The Tribunal therefore understands his complaint to be one of direct discrimination within the meaning of s 49B(1)(a) of the Act and s 49M(1)(a) and (b) of the Act.
2. The Applicant stated that his disability gave him a "special need to copy documents" for the purpose of sending them to authorities "to get their attention regarding being locked up for twenty years". He stated at hearing that the restrictions complained of in these proceedings were that he was required to approach and obtain permission from the Nursing Unit Manager (NUM) or Social Worker to photocopy documents, when all other patients were able to obtain permission from their allocated nurse. A patient's allocated nurse was available at all times to provide this permission, but the availability of the NUM or Social Worker to provide that permission was limited, particularly on weekends and holidays. He complained that the NUM and Social Worker were seldom available so he had limited opportunities to obtain their permission, because the Social Worker was only there 2 days per week, and they were also required to manage 32 patients and conduct case reviews. The Applicant stated that he was therefore treated less favourably than other patients as a result of his disability, and that he was discriminated against in the terms or conditions on which the Respondent was providing him with goods and services.
3. The Applicant stated that he was treated less favourably than other patients because he was a high profile patient who was rocking the boat, trying to shed light on his treatment over the past twenty years. He said that the restrictions had been placed on him because of the nature of his case, that he was a "high profile person". The Applicant stated that he was targeted, singled out, and treated less favourably because he "is exposing them and what they are doing". He claimed the Respondent's actions constituted crimes against humanity and brutal treatment.
4. When asked by the Tribunal "how is this less favourable treatment on the ground of disability?" the Applicant responded in words to the effect of: On 7 June 2021 Forrest says I am doing this because of my mental illness but this is not true. Because of their conduct they are blocking me, singling me out.
5. The Applicant otherwise relied on the remaining documents provided to the Tribunal through both the President's referral of complaint and additional handwritten documents received by the Tribunal on 26 October 2021, enclosing examples of the documents the Applicant photocopied for the purpose of "sending them to the authorities and the watchdogs of the system to know what is going on…".
6. The reference by the Applicant in his oral submissions to "7 June 2021 Forrest" is a reference to the Respondent's response to the Applicant's complaint, as received by ADNSW. Gary Forrest, the Chief Executive of JHFMHN, wrote to ADNSW on 7 June 2021 stating the following: As background, Mr Dezfouli suffers from a mental illness as defined by the NSW Mental Health Act 2007. This illness is typically characterized by symptoms such as delusions and disorganised thoughts, which Mr Dezfouli experiences. In the context of this condition, Mr Dezfouli engages in prolific and litigious letter writing to external agencies including, tribunals, boards, ministers/politicians and the media. The content of these letters can be, at times, abusive or fear inducing. One incident in 2019 involved white powder being sent to the NSW State Premier, eliciting a counter terrorism response. Mr Dezfouli has also made violent threats and attempted to use intimidation when he feels his needs are not being met. Such behaviour has been associated with his delusional beliefs about the Government and Justice Health and Forensic Mental Health Network (the Network). In relation to Mr Dezfouli's complaint, a significant proportion of the requested photocopying relates to his desire to duplicate letters he has written to send to multiple recipients. Mr Dezfouli's treating team have therefore placed limitations around photocopying, due to observed links between letter writing, photocopying and Mr Dezfouli's mental health. Mr Dezfouli's mental health, associated risks and any restrictions imposed on him are reviewed every two weeks during multi-disciplinary team (MDT) meetings; this includes a review of his access to photocopying. Currently, Mr Dezfouli has access to photocopying five days per week, with access provided by the Nurse Unit Manager and Social worker. Any limitations on Mr Dezfouli's photocopying is guided by MDT clinical assessment and the need for risk management, noting Mr Dezfouli is at high risk of sending unwanted correspondence. The Network imposes limitations by the powers vested in it, by delegation from the Secretary Ministry of Health, under section 117(1) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, which enables a forensic patient detained in the Forensic Hospital to be subject to any security conditions that the Secretary considers necessary. Any forensic patient detained in the Forensic Hospital and considered by the Network and the patient's MDT to be a high risk of sending unwanted correspondence would have similar limitations imposed on them.
7. The Respondent denied that the conditions imposed on the Applicant's photocopying constituted unfavourable terms within the meaning of s 49M(1)(b) of the Act, or that he was treated less favourably within the meaning of s 49(1)(a) of the Act than another person with a similar risk assessment by the MDT. The Respondent submitted that ADNSW's findings that the complaint was lacking in substance should be upheld in determining that it was neither fair nor just for leave to be granted for the complaint to proceed.
8. To prove direct disability discrimination, if the complaint were to proceed, the Applicant would have to prove that: 1. the respondent is a person who provides goods or services; 2. the respondent refused to provide him with goods or services or provided him with goods or services on unfavourable terms; 3. by doing so, the respondent treated him 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.
9. The onus is on the Applicant to demonstrate how it would be "fair and just" for his complaint to proceed, in circumstances where ADNSW has determined it was lacking in substance. The Applicant did not identify with particularity the "goods or services" the Respondent was said to be providing to him. As discussed in relation to previous discrimination complaints made by the Applicant, including Dezfouli v Justice Health and Forensic Mental Health Network [2021] NSWCATAD 362 at [32] to [33], this failure to identify the services with which he was provided makes it more difficult for him to discharge his onus, but is not determinative of his leave application. The Respondent did not make submissions in these proceedings in relation to whether it was providing the Applicant with goods or services.
10. The Applicant's evidence to the Tribunal was to the effect that his disability created the "need" for him to photocopy documents, but the Respondent's conditions on that photocopying were because of his "high profile", rather than his disability or any characteristic thereof. Taking the Applicant's evidence at its highest, even if the Tribunal found that allowing the Applicant to photocopy documents was a "provision of goods and services", and that the conditions imposed on the Applicant in relation to his photocopying of documents were "less favourable terms", there is no evidentiary basis upon which the Tribunal could find that this resulted in him being treated less favourably than other patients with a similar risk assessment, or that the conditions were placed on him because of his disability or a characteristic thereof. It is highly unlikely that the Applicant would be able to demonstrate differential treatment or causation if his complaint were to proceed.
11. I therefore agree with ADNSW's ground for declinature that the Applicant's complaint is lacking in substance. The Applicant has not satisfied me that it would be fair and just for leave to be granted in relation to the complaint made 17 February 2021 regarding his ability or access to photocopy documents while under the care of JHFMHN.

Order 1. Leave is refused for the Applicant's complaint to proceed pursuant to s 96(1) of the Anti-Discrimination Act 1977 (NSW).

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: 18 February 2022