Dezfouli v Justice Health and Forensic Mental Health Network

Should the Appeal Panel extend the time for lodging the appeal?

1. Mr Dezfouli did not lodge the appeal within 28 days from the day he was given reasons for the decision: Civil and Administrative Tribunal Rules 2014 (NSW), (the Rules) rule 25(4)(c). The Tribunal made the decision on 30 September 2024. Mr Dezfouli lodged the appeal on 19 November 2024, twenty-two days late.
2. Mr Dezfouli says he received the Tribunal's reasons for decision on 8 October 2024 and immediately wrote to the Tribunal requesting a hard copy of a Notice of Appeal. He received that document on 9 November 2024 and completed it on 11 November 2024. The Notice of Appeal was received by the Registry on 19 November 2024.
3. The Tribunal has power under s 41 of the NCAT Act to grant an extension of time, even if the time for compliance has expired. We grant an extension in this case because the reason for the delay is the time it took for the postal correspondence between the Tribunal's Registry and Mr Dezfouli to be delivered.

Should the Tribunal give Mr Dezfouli permission to appeal from the interlocutory decision to appoint a guardian ad litem in four proceedings?

1. Before a party can appeal from an interlocutory decision, they must obtain the Appeal Panel's permission or "leave". The rationale for that rule is to ensure that such appeals are not used as a tactic to delay the proceedings. It accords with the guiding principle of the NCAT Act which is "to facilitate the just, quick and cheap resolution of the real issues in the proceedings": NCAT Act, s 36(1).
2. In Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 the Appeal Panel gave the guidance as to the principles to be kept in mind when considering whether to give leave to appeal from an interlocutory decision. The following principles (at [35]) are particularly relevant:

"(3) Leave should only be granted where there are substantial reasons to allow an appellate review: Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572; [2000] 104 FCR 564;

(4) Circumstances justifying leave may be an error of principle resulting in substantial injustice: Minogue v Williams [2000] FCA 125. However, these concepts may not be cumulative;

(5) There is a difference between the exercise of a discretion concerning a matter of practice and procedure and an exercise of a discretion that determines substantive rights: Adam P Brown per Aickin, Wilson and Brennan JJ at 177 citing with approval Jordan CJ in In re Will of FB Gilbert (dec) [1946] NSWStRp 24; (1946) 46 SR (NSW) 318 at 323;

(6) Where an interlocutory decision effectively determines the substantive rights of the parties, that may be a significant factor in favour of granting leave to appeal: Eltran Pty Ltd v Westpac Banking Corporation [1988] FCA 398; (1991) 32 FCR 195 per Spender J at [14]-[15], referring to Ex parte Bucknell [1936] HCA 67; (1936) 56 CLR 221 at 225-6;

...

(8) Leave should not be granted unless a substantial injustice would result and the decision is attended with sufficient doubt to warrant it being reconsidered by the appeal body. What is sufficient is dependent on the particular case: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9;"

1. The appointment of a guardian ad litem does not determine Mr Dezfouli's substantive rights under the Anti-Discrimination Act 1977, but that decision is not merely a matter of practice and procedure. If a guardian ad litem is appointed, Mr Dezfouli would be deprived of the right that other parties have, to appear in person and present their case as they see fit: Cachia v Hanes [1994] HCA 14 at [22]; (1994) 179 CLR 403 at 415. Significantly, the guardian ad litem does not have to act in accordance with Mr Dezfouli's wishes or instructions. They could withdraw Mr Dezfouli's complaints of discrimination if they considered that it was not in his best interests for those complaints to go ahead.
2. While the Tribunal's decision does not affect Mr Dezfouli's substantive rights under the Anti-Discrimination Act, a substantial injustice would result if we do not give Mr Dezfouli leave to appeal. We should give leave to appeal if the prospects of a successful appeal are high or, in the words of the Federal Court "the decision is attended with sufficient doubt to warrant it being reconsidered . . .": Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9.

1. The Tribunal correctly identified the legal principles for the appointment of a guardian. They are contained in NCAT Guideline 2 at [10] and [11] and the questions posed by Kyrou J in Slaveski v State of Victoria and Others [2009] VSC 596 at [29].
2. The Tribunal referred to a report by Dr Matthews dated 31 July 2024 as being "the only available contemporaneous medical evidence" of Mr Dezfouli's capacity. The Tribunal gave no weight to medical reports relied on by Mr Dezfouli which were prepared between 2005 and 2008.
3. Dr Matthews is a Consultant Psychiatrist and the Medical Superintendent at the Forensic Hospital. The Tribunal noted Dr Matthews' expert opinion that: Mr Dezfouli's querulous behaviour is a direct result of his psychotic illness; that he has an inaccurate perception of the role and goals of a legal inquiry; and that his illness makes it difficult for him to balance information presented in the context of legal proceedings and make rational decisions. The Tribunal also noted Dr Matthews' ultimate conclusion that Mr Dezfouli does not have capacity to represent himself in legal proceedings because he is limited in his capacity to rationally prepare for a case.
4. The Tribunal acknowledged that Mr Dezfouli is "intelligent" and "articulate". At [42], the Tribunal gave the following five reasons for concluding that despite those traits Mr Dezfouli lacks capacity to represent himself in the proceedings:

"(1) Mr Dezfouli's submissions do not grapple in any substantive way with Dr Matthew's opinions regarding the question of capacity. Rather, Mr Dezfouli's submissions contain unfounded, personal and at times highly derogatory accusations against Dr Matthews and against Justice Health's legal representative. They also contain serious but unsubstantiated allegations against the mental health system generally. The combative and vitriolic nature of Mr Dezfouli's submissions corroborate Dr Matthew's views regarding his persecutory delusions, and his difficulty in balancing information presented in the context of legal proceedings to make rational decisions. They reveal a lack of understanding about the type of evidence and arguments required to refute Dr Matthew's evidence and indicate that Mr Dezfouli's incapacity seriously affects his ability to present his views and respond to arguments in an appropriate manner.

(2) Mr Dezfouli's acknowledgment of his conduct in 2019 in sending white powder substances to the then NSW Premier and to the HCCC, and his misguided attempts to justify that behaviour, exhibit a lack of understanding of the seriousness of those actions and align with Dr Matthews' opinions regarding Mr Dezfouli's accusatory stance and querulous behaviour. Mr Dezfouli's attempts to minimise and justify his conduct give rise to serious concerns that Mr Dezfouli lacks insight into the possible adverse effects of his conduct, and that his ability to respond to arguments and act in his own best interests is seriously compromised.

(3) The wide-ranging allegations made by Mr Dezfouli against Justice Health, its staff and other government agencies, and the information provided about his health care and other matters, are not relevant to Mr Dezfouli's contention that he has the requisite capacity to represent himself in the proceedings. Similarly, his repeated references to his "legal and human rights" under ss 68 and 69 of the Mental Health Act 2007 (NSW) are misconceived. Section 68 of the Mental Health Act sets out the Parliament's intentions regarding the general principles that are, as far as practicable, to be given effect to with respect to the care and treatment of people with a mental illness or mental disorder. Under s 69 it is an offence for an authorised medical officer, or any other person employed at a mental health facility to "wilfully strike, wound, ill-treat or neglect a patient or person detained at the facility". Neither of these provisions are relevant to the question I must decide, which is whether Mr Dezfouli has the capacity to represent himself in the proceedings. Again, these irrelevant and misconceived submissions raise doubts about Mr Dezfouli's ability to understand the issues in dispute in the proceedings, to respond to the other party's arguments, and to act in his own best interests.

(4) Attached to both sets of Mr Dezfouli's written submissions are dozens of pages of supporting documents. I have outlined the nature of those documents earlier in these reasons. With regard to the majority of those documents, Mr Dezfouli has not provided any cogent explanation as to why he seeks to rely on them, or how they support his position. Many of them are more than a decade old and relate to Mr Dezfouli's long-held grievances with the mental health system and other government agencies. It is not apparent how they are relevant to supporting Mr Dezfouli's position regarding capacity. The fact that he seeks to rely on such documents, without proper explanation, supports Dr Matthews' evidence regarding Mr Dezfouli's incapacity and its effect on his ability to effectively represent himself in the proceedings.

(5) Mr Dezfouli's reliance on voluminous materials and lengthy submissions which do not support his position also gives rise to concerns that if Mr Dezfouli was to represent himself in the proceedings, he would have difficulty complying with his obligation in s 36(3) of the NCAT Act. That provision requires litigants to cooperate with the Tribunal to give effect to its 'guiding principle', which is to facilitate the just, quick and cheap resolution of the real issues in the proceedings."

1. None of Mr Dezfouli's assertions or submissions identifies an error of law or any other basis for concluding that the prospects of a successful appeal are high. However, because Mr Dezfouli is self-represented, we have ensured that he has not failed to put forward relevant grounds of appeal because of a lack of legal skills: Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138 at [55] quoting Rajski v Scitec Corporation Pty Ltd (unreported, Court of Appeal, NSW, 16 June 1986). Having read the Tribunal's decision, the parties' submissions on appeal and heard their oral submissions, we could not identify a ground of appeal that would have any prospect of success.
2. Mr Dezfouli's submissions contain two points that could possibly constitute a question of law or a ground of appeal on the merits. The first is that he was not given an opportunity to obtain a second opinion from another psychiatrist. If that were the case, it could amount to a breach of procedural fairness. The second submission is that the Tribunal gave no weight to old medical reports that refer to his capacity.
3. As to the procedural fairness ground, Mr Dezfouli consented to the Tribunal determining Justice Health's application for a guardian ad litem to be appointed "on the papers": NCAT Act, s 50; Dezfouli v Justice Health and Forensic Mental Health Network [2024] NSWCATAD 288 at [15] - [18]. He made written submissions about Dr Matthews' report but did not say that he wanted to obtain his own evidence nor did he seek an adjournment to allow him more time to do so. Mr Dezfouli understood the nature of the proceedings and had a reasonable opportunity to be heard: NCAT Act, s 38(5)(a) and (c).
4. As to the Tribunal's failure to give any weight to old medical reports, Mr Dezfouli denies he has a mental illness and refers to old medical reports as to his capacity. For example, he refers to the report of Dr Paul Mullen dated 19 July 2006 and clinical notes from Timothy Castle RN dated 27 October 2006. The Tribunal gave those reports no weight because they were not sufficiently current. There is no error in the Tribunal's placing no reliance on out of date medical opinions.
5. We outline Mr Dezfouli's other submissions below. None of them identifies a question of law or raises sufficient doubt about the merits of the Tribunal's decision.
6. Mr Dezfouli submits that Dr Matthews "doesn't know me", "did not speak to me" and "writes fabricated reports" that he is "delusional". Mr Dezfouli's grounds of appeal contain derogatory personal accusations towards Dr Matthews including that she "slept with her boss" in order to obtain a promotion. Dr Matthews is the medical superintendent at the mental health facility where Mr Dezfouli is detained. She had access to Mr Dezfouli's file. Mr Dezfouli did not present any evidence, other than his own assertions, which would cast doubt on the reliability of her opinions.
7. Mr Dezfouli had a guardian ad litem represent him in previous proceedings. He says that the guardian ad litem is "stupid" and that he can do a better job. The guardian ad litem has not been incarcerated like he has and does not understand what has happened to him. The fact that Mr Dezfouli does not want a guardian ad litem to be appointed and will not co-operate with that person, is not a ground of appeal.
8. A substantial injustice would result if we do not give Mr Dezfouli leave to appeal, but leave should only be given if there is sufficient doubt about the lawfulness or the merits of the Tribunal's decision. Mr Dezfouli has not identified any errors as to the law or the facts that would justify leave being granted, nor were we able to identify an error of that kind.

(1) The time for lodging the appeal is extended to 19 November 2024.

(2) Leave to appeal from the interlocutory decisions to appoint a guardian ad litem for Mr Dezfouli in proceedings 2024/00086486, 2024/00170203, 2024/00226225 and 2024/00207539 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.