Police, NSW Police Service [2001] NSWADT 44
Tropoulos v Journey Lawyers [2019] FCA 436; (2019) 287 IR 363
Category: Procedural rulings
Parties: Saeed Dezfouli (Applicant)
Justice Health and Forensic Mental Health Network (Respondent)
Representation: Applicant (self-represented)
[2]
Solicitors:
M Sterry (Justice Health and Forensic Mental Health Network) (Respondent)
File Number(s): 2024/0086486
Publication restriction: None
[3]
Background
Saeed Dezfouli (the Applicant) is a forensic patient under the long-term care of the Justice Health and Forensic Mental Health Network (JHFMHN and/or the Respondent) pursuant to the Mental Health (Forensic Provisions) Act 1990 (NSW) (the MHFP Act). He has a diagnosis of schizophrenia and a history of prolific letter writing to a large range of individuals, organisations and government entities including the Courts, Tribunals, departmental executives, ministers, politicians, and the media. He has brought a number of applications to this Tribunal and its predecessor including previous applications for leave pursuant to s 96 of the Anti-Discrimination Act 1977 (NSW) (the Act), which contain further details of his background unnecessary to repeat here, including Dezfouli v State of New South Wales (Justice Health) and anor [2008] NSWADT 122, Dezfouli v State of New South Wales (Justice Health) and anor (No.2) [2008] NSWADT 155, Dezfouli v Department of Corrective Services [2008] NSWADT 277, Dezfouli v Pulley [2013] NSWADT 223, Dezfouli v Pulley [2014] NSWCATAD 1, Dezfouli v Justice Health and Forensic Mental Health Network [2014] NSWCATAD 5, Dezfouli v Justice Health and Forensic Mental Health Network [2015] NSWCATAD 11, Dezfouli v Justice Health and Forensic Mental Health Network [2018] NSWCATAD 83, Dezfouli v Justice Health and Forensic Mental Health Network (No 7) [2018] NSWCATAD 162, Dezfouli v Justice Health and Forensic Mental Health Network (No 6) [2018] NSWCATAD 161, Dezfouli v Justice Health and Forensic Mental Health Network (No 8) [2018] NSWCATAD 163, Dezfouli v Justice Health and Forensic Mental Health Network (No 9) [2018] NSWCATAD 170, Dezfouli v Health Care Complaints Commission [2018] NSWCATAD 245, Dezfouli v Justice Health and Forensic Mental Health Network [2019] NSWCATAD 136, Dezfouli v Justice Health and Forensic Mental Health Network [2021] NSWCATAD 362, Dezfouli v Justice Health and Forensic Mental Health Network [2022] NSWCATAD 57, Dezfouli v Justice Health and Forensic Mental Health Network [2023] NSWCATAD 144, Dezfouli v State of NSW, Justice Health and Forensic Mental Health Network [2024] NSWCATAD 165.
On 6 June 2023 the Applicant lodged a complaint with the President of Anti-Discrimination NSW (the President), alleging that he had been discriminated against on the ground of disability in the provision of goods and services by the Respondent, and victimised by the Respondent. The Applicant's complaint stated:
Last week the patients' rep[resentative] moved to the rehab[ilitation] ward from the sub acute ward and the ward needed a rep[resentative]. I put up my hand to become the patients' rep but I was told because of my psychiatric disability I can't run for this position by the staff. I told them but this is discrimination and victimisation and it is unlawful in New South Wales but they said that is the team's decision. Someone else was appointed to the job
On 12 July 2023 the President accepted a complaint of victimisation against the Respondent for the period 15 to 25 May 2023. The complaint of disability discrimination in the provision of goods and services was declined under s 89B(2)(a) of the Act, because:
…choosing a patient representative could not be characterised as a service, and if it was considered a service, the complainant had not provided details of how he was treated less favourably because of his disability.
On 13 December 2023 the President declined the complaint of victimisation under s 92(1)(a)(i) of the Act as lacking in substance. The reasons for this decision were:
On the available information the election and appointment of the patient representative was subject to the voting process. As part of this process patients were required to nominate themselves as potential candidates prior to the election process. It appears that the complainant was not a nominated candidate and as such could not be considered in the voting process.
In these circumstances, the complainant has provided insufficient information to demonstrate victimisation.
At the Applicant's request, on 5 March 2024 the President referred the complaint to this Tribunal as required by s 93A of the Act.
The Tribunal has power to grant, or to refuse to grant, leave for the complaint accepted for investigation by the President and referred to the Tribunal under s 93A of the Act: s 96(1) of the Act.
For the reasons that follow, I have decided to grant leave for the complaint to proceed.
[4]
Legal Principles
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.
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].
Complaints declined under s 89B(2)(a) of the Act are not reviewable by the Tribunal: s 89B(4) of the Act.
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.
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].
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].
[5]
Victimisation
If the complaint were to proceed, the Applicant would have the onus of establishing that he had been victimised. Section 50(1) of the Act provides:
50 Victimisation
(1) It is unlawful for a person (the discriminator) to subject another person (the person victimised) to any detriment in any circumstances on the ground that the person victimised has:
(a) brought proceedings against the discriminator or any other person under this Act,
(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,
(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or
(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,
or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.
In summary, to prove victimisation the Applicant would have to prove that:
1. He did one or more of the things listed in s 50(1)(a)-(d): (the trigger);
2. The Respondent's conduct subjected him to a detriment; and
3. One of the "real, genuine or true reasons" for the Respondent's conduct was because the Applicant did one of the things listed in (a)-(d) (causation): Caroll v Department of Family and Community Services [2015] NSWCATAD 82 at [24]; Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [8], [37].
Whether something constitutes a detriment requires an objective not a subjective evaluation to be undertaken: Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 (Sivananthan) at [41]. The word "detriment" in the context of s 50(1) of the ADA means "loss, damage or injury" that is "real and not trivial": Sivananthan at [40]; and "all that is required... is that the complainant has been placed under a disadvantage as to a matter of substance as distinct from a trivial matter": Bogie v The University of Western Sydney (1990) EOC 92-313; Burns v Sunol [2014] NSWCATAD 62 at [34].
The words "on the ground that" require a direct causal link between the relevant act of victimisation - namely subjecting a person to a detriment - and the reason for that act: Tropoulos v Journey Lawyers [2019] FCA 436; (2019) 287 IR 363 at 475 [323].
[6]
Consideration
At hearing both parties identified the complaint for the Tribunal's consideration as including disability discrimination in the provision of goods and services, and victimisation. This is a mistake, because the complaint of disability discrimination in the provision of goods and services was declined by the President under s 89B(2)(a) of the Act and is therefore not reviewable by this Tribunal, pursuant to s 89B(4) of the Act. The only complaint before the Tribunal on the question of leave is the Applicant's complaint of victimisation.
The Applicant was sworn and gave oral evidence at the hearing. His evidence was to the effect that a vacancy for patient representative emerged and the nursing staff told the patients that they could nominate for the role. If there was more than one nomination, an election would be held the following day. Two people nominated themselves at the meeting, including one patient who was in a smaller, 7 bed ward.
Following the meeting the Applicant was approached by other patients who indicated they would support him if he nominated. He agreed to run. This conversation was overheard by nursing staff. At 7pm that night one of the nurses came into the 20 bed ward (in which the Applicant was resident) with the voting box identifying 2 candidates. The Applicant complained "this is not right. The vote should be at the patient meeting tomorrow". The nurse said "the [nursing] team decided that the election should be tonight". The Applicant complained that he wanted to nominate, and that this was discriminatory. The nurse then told him that the 7 bed ward had already voted. The Applicant protested "this is against democracy" and so the nursing staff took the box away and no one in the 20 bed ward voted.
The following morning at the patient meeting, which the Applicant was chairing, the Applicant stated that he was nominating for the representative role. He was told that the election had already taken place and the patient from the 7 bed ward was elected. The Applicant asked how many people had voted and was told by nursing staff that 4 people had voted.
The Applicant said that the evidence of victimisation was in his Care Management Plan. He said that document contained an entry to the effect that he couldn't be a patient representative because he had "raised issues of neglect under section 69 and collected petitions" when he had previously been a patient representative. He said:
I am litigious. They victimised me because they don't want me making complaints. Because of who I am and what I was doing. Because they know I complain of discrimination and neglect.
I adjourned the hearing to allow the Respondent some time to obtain copies of the Applicant's current care management plan, and the plan in place in the period of the complaint being 15-25 May 2023.
The Respondent provided the Tribunal with three care management plans, identified as Treatment, Placement, Restriction, Implementation and Monitoring (TPRIM) plans. The TPRIM plans are developed following an assessment of the Applicant at various times. The dates of assessment for these three plans were 4 April 2023, 16 May 2023 and 2 November 2023.
In each of the three TPRIM plans there is a section on "Identified Risks" and associated "Restriction/Management" which includes:
Identified risk details: History of complaints against staff
Restriction/management: All staff to meet with Saeed 2:1
Identified risk details: Multiple issues when held role as patient rep for the ward
Restriction/management: Not to be patient rep or attend CAC
The Applicant submitted that the identified risks and restriction/management entries in the TPRIM plans demonstrated victimisation - that one of the real, genuine or true reasons for the Respondent preventing him from nominating as patient representative was because he had a history of making complaints against staff and the Respondent, including specifically discrimination complaints.
The Respondent's solicitor stated that, on his instructions, the TPRIM plan would not be considered or implemented until the Applicant was actually elected to a patient representative role. The Applicant would then be subjected to an assessment at that time as to whether the identified risk remained.
I do not accept that statement of the Respondent's solicitor's instructions as evidence. Further, it is clearly disputed by the Applicant and it is not the Tribunal's role, in the context of a leave hearing, to determine factual disputes.
Taking the Applicant's evidence at its highest, including his oral evidence at hearing and the three TPRIM plans which he relied upon, I find that the Applicant's complaint of victimisation has substance.
There is a trigger, which is the Applicant's extensive history of making complaints of discrimination under the Act and his verbal statement during the incident that "this is discriminatory".
There is a detriment, which is the Respondent's conduct in preventing the Applicant from nominating himself as a patient representative. Arguably, this objectively placed the Applicant at a disadvantage as to a matter of substance, preventing him from being eligible for the patient representative position. Whilst the Respondent may dispute that any objective detriment was ultimately caused by the conduct, that dispute is an issue for determination on the evidence at hearing.
The TPRIM plans relied upon by the Applicant demonstrate that one of the reasons for that conduct which caused the Applicant detriment was because of the trigger.
I therefore disagree with the President's ground for declinature of the Applicant's complaint of victimisation.
As to whether it would be fair and just in all the circumstances for leave to be granted, I have regard to the purpose of the legislative scheme established by the Act and am guided by the consideration that the refusal of leave will finally determine the complainant's rights under that scheme. The Applicant has made numerous complaints to this Tribunal alleging contraventions of the Act and has been largely unsuccessful in having leave granted or having his complaints substantiated. This does not mean, however, that every complaint made by the Applicant is automatically lacking in substance or has limited prospects of success. I appreciate that the Respondent has expended significant time and resources in dealing with the Applicant's complaints, but I have no evidence that the Tribunal's acceptance of this particular complaint will make any difference, either way. Each complaint has to be taken on its merits. It may be the case that, ultimately, the Applicant's evidence is not accepted by the Tribunal when it considers some conflicting evidence provided by the Respondent, or when it is tested by the Respondent at hearing. There is, however, evidence upon which the Tribunal could agree with the Applicant's version of events and could determine therefore that his complaint is substantiated, In my view it is fair and just in all the circumstances for the Tribunal to exercise its discretion and grant leave for the Applicant's complaint of victimisation to proceed.
[7]
Order
1. Leave is granted for the Applicant's victimisation complaint to proceed pursuant to s 96(1) of the Anti-Discrimination Act 1977 (NSW).
2. The matter is listed for case conference on the next available opportunity.
[8]
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: 11 July 2024