Roberts v Department of Justice, Corrective Services NSW

The complaint

1. Mr Roberts summarised his complaint as being that, when detained pursuant to a segregation order, the respondent, through its employees: 1. did not provide or denied him access to a psychologist for the purpose of one-on-one therapeutic psychological services; 2. did not provide or denied him access to a psychiatrist for the purpose of one-on-one therapeutic psychological services; 3. did not provide or denied him access to medical care services; and 4. withheld medication (namely methadone and analgesia) on one occasion.
2. According to Mr Roberts the respondent's employees denied him access to see psychologists, psychiatrists and medical staff by ignoring his requests to do so. The employees are said to be correctional officers, staff of the Personality Behaviour Disorders Services (PBDS) and the staff responsible for the administration of medication to inmates.
3. In the material accompanying the President's Report, the period of the complaint is recorded as the three weeks from 26 October 2015 to 16 November 2015. Mr Roberts submits that the period should be the five month period from 26 October 2015 to March 2016. In his written submission to the Tribunal, however, Mr Roberts stipulates that the complaint period is the 12 months from November 2015 to November 2016.
4. The respondent did not object to the period of the complaint being extended. I have included events that occurred during that extended period when deciding whether to grant leave. Parties should provide consent orders for the amendment of the complaint to cover the relevant period: AD Act, s 103.

Does the Felons (Civil Proceedings) Act apply to this case?

Legislative provisions

1. Section 4 of the Felons Act require a person who is in custody having been convicted of an indictable offence to obtain the court's permission before instituting any civil proceedings: 4. Leave to sue required for persons convicted of serious indictable offences A person who is in custody as a result of having been convicted of, or found to have committed, a serious indictable offence may not institute any civil proceedings in any court except by the leave of that court granted on application.
2. The court cannot give permission for civil proceedings to be instituted unless it is satisfied that the proceedings are not an abuse of process and that there is a prima facie ground for the proceedings. 5. Grant of leave A court shall not, under section 4, grant leave to a person to institute proceedings unless the court is satisfied that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings.
3. There was no objection by Mr Roberts to the respondent appearing and being represented for the determination of this part of the application and I grant that leave: Felons Act, s 7 and Farrow v Nationwide News Pty Ltd [2017] NSWDC 28 at [5] - [9].
4. The parties agreed that Mr Roberts is in custody as a result of being convicted of a serious indictable offence. Once instituted, the complaint falls within the definition of a civil proceeding, that is a common law, equitable or statutory "... claim for a private remedy to redress an injury from wrongful conduct": Patsalis v State of New South Wales [2012] NSWCA 307, [5] (Allsop P).

Issues

1. The remaining questions are: 1. whether the Tribunal is a 'court' for the purposes of ss 4 and 5 of the Felons Act; 2. if so, whether, by requiring the President of the ADB to refer the complaint to the Tribunal, Mr Roberts has instituted proceedings; 3. if so, whether the Tribunal is satisfied that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings.

Is the Tribunal a court?

1. The English common law deprived a felon of the right to sue in a court. That law was in force in New South Wales at the time of its settlement and was confirmed by a majority of the High Court (Barwick CJ, Gibbs, Stephen, Mason and Jacobs JJ) in Dugan v Mirror Newspapers Ltd [1978] HCA 54; 142 CLR 583, per Barwick CJ at p 586. The Felons Act was "designed simply to prevent persons in custody, having been convicted of a felony, from attempting to institute vexatious or frivolous actions": Second Reading Speech, Felons (Civil Proceedings) Bill, NSW Legislative Assembly, 18 March 1981, p 4814.
2. The word "court" is not defined in the Felons Act. The definition in the Civil Procedure Act 2005 (NSW) is not helpful because that legislation does not apply to the NSW Civil and Administrative Tribunal (NCAT) and has a different object from the Felons Act. The purpose of empowering a 'court' to determine a leave application under the Felons Act was expressed in the Second Reading Speech as being to prevent 'convicted felons from initiating irresponsible actions' and ensuring that the 'important task' of 'considering whether a prisoner is to be given the opportunity to come to court should be vested in the court itself and not in an anonymous official within the prison system': Second Reading Speech, Felons (Civil Proceedings) Bill, NSW Legislative Assembly, 18 March 1981, p 4814. The possibility of a convicted felon instituting civil proceedings in a body that is called a tribunal is not contemplated by the legislation.
3. The only directly relevant authority on the question of whether a tribunal is a court for the purpose of the Felons Act relates to the Administrative Decisions Tribunal (ADT) - on of the predecessors to the Administrative and Equal Opportunity and Occupational Divisions of NCAT: Hall v State of NSW (Department of Corrective Services) [2006] NSWADT 243. In that case, there was no dispute between the parties that the ADT was a court for the purposes of s 4 of the Felons Act: Hall v State of NSW (Department of Corrective Services) [2006] NSWADT 243, at [5].
4. Referring to Trust Company of Australia Limited (trading as Stockland Property Management) v Skiwing Pty Ltd (trading as Café Tiffany's) [2006] NSWCA 185, the ADT found, correctly in my view, that the question of whether the ADT was a "court of a state" for the purpose of Chapter III of the federal Constitution was not relevant: Hall v State of NSW (Department of Corrective Services) [2006] NSWADT 243 at [7]-[8].
5. The question is not whether the Administrative and Equal Opportunity Division of the Tribunal is a 'court' but whether the Tribunal as a whole meets that description: Trust Company of Australia Limited (trading as Stockland Property Management) v Skiwing Pty Ltd (trading as Café Tiffany's) [2006] NSWCA 185 at [36]. Referring to the ADT, the Court of Appeal has held that "[F]or many statutory purposes, the Tribunal would have sufficient of the characteristics of a court to answer a statutory provision relating to "courts": Trust Company of Australia Limited (trading as Stockland Property Management) v Skiwing Pty Ltd (trading as Café Tiffany's) [2006] NSWCA 185 at [29].
6. The characteristics of a court, and which of those characteristics are held by NCAT, was described in Australian Executor Trustees v Steak Plains Olive Farm Pty Ltd [2014] NSWCATCD 143 at [60]. I agree that NCAT has the relevant features set out in [61] of that decision. Those features support a finding that NCAT is a court for the purpose of the Felons Act.
7. If the Tribunal is not a 'court' for the purposes of the Felons Act, the common law doctrine of attainder, which completely bars a 'felon' from instituting civil proceedings, would continue to apply. In those circumstances Mr Roberts would be barred from bringing any proceedings in the Tribunal. That serious consequence cannot have been the intention of the legislature.
8. In my view, the Tribunal is a 'court' for the purpose of the Felons Act because it cannot have been the intention of the legislature for the doctrine of attainder to continue to apply to civil proceedings in tribunals as distinct from courts. In addition, the Tribunal has many features of a court.

Has Mr Roberts instituted proceedings?

1. The President of the ADB declined the complaint as lacking in substance under s 92(1)(a)(i) of the AD Act. When that happens, a complainant may "require the President, by notice in writing, to refer the complaint to the Tribunal": AD Act, s 93A. The President referred the complaint to the Tribunal in accordance with s 93A(2). Under s 96(1) of the AD Act, such a complaint "may not be the subject of proceedings before the Tribunal without the leave of the Tribunal". If the complaint is not currently "the subject of proceedings" it is arguable that Mr Roberts has not instituted proceedings and s 4 of the Felons Act does not apply, at least at this stage. I do not subscribe to that view for the following reasons.
2. The term "institute any civil proceedings" is not defined in the Felons Act. The word "institute" should be given its ordinary meaning which, in this context, is "to set in operation: to institute: a lawsuit": Macquarie Dictionary https://www.macquariedictionary.com.au/features/word/search/?word=institute&search_word_type=Dictionary.
3. This broad meaning of the word "institute" has been adopted in other legislation which has a similar legislative intention. Under the Vexatious Proceedings Act 2008 (NSW), the three superior courts in New South Wales may make a "vexatious proceedings order". One circumstance in which such an order may be made is where the court is satisfied that "the person has frequently instituted or conducted vexatious proceedings in Australia": s 8(1)(a). The word "institute" is defined in s 5(1)(b) to include "for proceedings before a tribunal--the taking of a step or the making of an application that may be necessary before proceedings can be started before the tribunal". That definition was not included in the Felons Act, which was enacted 27 years earlier. Nevertheless, I consider that, given that the objective was to prevent 'felons' from attempting to institute vexatious or frivolous actions, a similarly broad definition of the phrase "institute" was intended.
4. In a broad sense, by requiring the President to refer the complaint to the Tribunal, Mr Roberts has "set in operation" a lawsuit in the Tribunal. He has taken a step in the proceedings that is necessary before proceedings can be started. I am satisfied that he has instituted proceedings as required by s 4 of the Felons Act.

Are the proceedings an abuse of process and is there a prima facie ground for the proceedings?

1. Under s 5 of the Felons Act I must not grant leave unless I am satisfied that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings. Rein J summarised the relevant principles at [4] and [5] of Application of Dixon Ly [2013] NSWSC 906 (27 June 2013): 4. By way of background, it can be noted that in the Application of Malcolm Huntley Potier [2012] NSWCA 222, Allsop AcJ and Basten JA made reference to the purpose of the legislative scheme, which was: ... in part, to overcome the perceived injustice resulting from the decision in Dugan v Mirror Newspapers Ltd [1978] HCA 54 ; 142 CLR 583 that a convicted felon could not sue at law or in equity. On the other hand, the purpose of the statute was to permit the court to ensure that neither it nor prospective defendants were subjected to proceedings which were an abuse of process or which lacked any real merit... 5. In Potier the Court of Appeal having referred to Ford v Simes [2009] NSWCA 351 per Bergin CJ in Eq with whom Tobias and Handley AJA concurred, went on to say this: As with a summary dismissal application, the court is not required to embark upon a detailed analysis of the claims and the evidence which might support them, but rather is to form a broad impression as to whether a claim enjoys a realistic prospect of success and is thus not "hopeless" or "unarguable". and see SW v State of New South Wales [2010] NSWSC 966 (dealing with proceedings at first instance) it being obtained by Johnson J at [16] that the statutory gateway "ought not be an overly demanding one".
2. The respondent submitted that leave should be refused because: 1. to the extent that these proceedings may be regarded as an attempt to re-agitate issues arising from the segregation hearing before the Serious Offenders Review Council (SORC), it is an abuse of process; and 2. Mr Roberts has failed to establish a prima facie case as the proceedings are not arguable.
3. The issue in these proceedings, if leave is granted, is whether the respondent discriminated against Mr Roberts in the provision of services. That was not an issue before SORC so it cannot be said that Mr Roberts is intending to re-agitate issues arising from the segregation hearing.
4. The term "prima facie ground for the proceedings" has been interpreted by the High Court of New Zealand to mean the "traditional" prima facie test of "the Court being satisfied, without hearing the other side, that the plaintiff has a good reason to start or continue a proceeding": Re Collier (vexatious litigant: leave to commence proceedings) - [2004] NZAR 472 at [6]. The test is not whether there is a prima facie case.
5. Without making any findings of fact, there is some evidence in support of Mr Roberts' allegations. That evidence is contained in the further material summarised below. I am satisfied that there is a good reason to start these proceedings
6. Leave is granted for the applicant to institute these proceedings.

Further material

1. At the hearing, Mr Roberts sought to rely on the following further evidence: 1. medical report from J Adams dated 11 March 2016; (Exhibit A1) 2. transcript of Serious Offenders Review Council (SORC) of 31 March 2016; (Confidential Exhibit A2) 3. transcript of SORC 8 April 2016; (Confidential Exhibit A 3) and 4. decision of SORC 8 April 2016 (Confidential Exhibit A4).
2. The respondent objected to that material being taken into account because it was not provided to the President of the ADB. Before relying on that evidence, the respondent submitted that it should be given an opportunity to provide evidence in reply. Mr Roberts submitted that the respondent is not prejudiced by the late inclusion of this material because the medical report was tendered in court proceedings and the respondent was a party to the SORC proceedings.
3. At the hearing I admitted the evidence but emphasised that it would not be used as a basis for any findings of fact as to whether Mr Roberts has substantiated his complaint. The respondent has provided submissions in reply to that evidence. Consistently with the directions made in relation to this evidence at the hearing, I make the following order: The publication of paragraphs 30 to 36 of the Respondent's submissions dated 8 September 2017 is prohibited. This order is made under section 64(1)(c) of the Civil and Administrative Tribunal Act 2013.
4. In submissions dated 20 September 2017 and filed on 26 September 2017, Mr Roberts purported to file further new evidence comprising four attachments to that submission. At the leave hearing I made directions for the respondent to provide any evidence in response to the new evidence listed above at [32]. I did not direct the applicant to provide any further evidence. For that reason and because the respondent has not had an opportunity to respond to the further evidence, I have not taken it into account for the purpose of these proceedings.

Principles for granting leave

1. The Supreme Court set out the principles to be applied when determining whether to grant leave in Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143. In that case Schmidt J: 1. emphasised that a cautious approach should be adopted because a refusal of leave will "finally determine the rights of the parties under this legislative scheme, which is dealing with important human rights": [32]; 2. found that the Tribunal's discretion is unfettered and is not confined to the grounds on which the President of the Anti-Discrimination Board may decline a complaint: [28]; 3. concluded that leave must be granted or refused "depending on what (is) fair and just in the particular circumstances, with an onus falling on the plaintiff to establish that the leave should be granted … " and went on to say at [38], that: "Whatever the contest between the parties might be, the question of leave must be determined having in mind the purposes of the Act, which includes precluding unlawful discrimination and to permit those who have been so discriminated against, a remedy. Given that the legislation does not require all complaints to be investigated and dealt with, this means that while on the one hand, an obviously meritorious complaint will not be refused leave, where, for example on the other, it is apparent that the complaint lacks substance, or where the complaint is already being redressed elsewhere, leave may be refused, if that is what justice dictates": [38].
2. The criteria laid down in s92(1)(a), which relate to the declining of a complaint by the President of the ADB, are relevant to, but are not determinative of, the decision of the Tribunal to grant leave: Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWCA 388 [60]

Legislative provisions

1. The alleged conduct was said to breach s 49M(1) of the AD Act which provides that: (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. Discrimination on the ground of disability is defined in s 49B: (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.

Is the respondent providing a service for the purposes of the AD Act?

1. The "services" provided by the respondent's employees are said to be the provision of one-on-one therapeutic psychological services to inmates of NSW prisons. It is also said the respondent provides access to psychiatric and medical care services, including the provision of medication, to inmates in the NSW prison service which are in turn provided by Justice Health NSW. It is alleged that these services were denied to Mr Roberts on the basis of his disability.
2. According to the respondent, it would be difficult for Mr Roberts to show that the alleged conduct involved the provision of a service. In support of that proposition, the respondent relied on the cases of Rainsford v Victoria [2007] FCA 1049; (2007) 167 FCR 1 at [77] and State of New South Wales v Whiteoak [2014] NSWCATAP 99 at [217]. In Rainsford, Sundberg J noted at [77] that the prison system could not function without transportation or accommodation. In those circumstances it was "an artificial use of the word service to apply it to a fundamental integer of a system over which those affected have no or almost no control".
3. The Appeal Panel has decided that the classification of inmates under the under the Crimes (Administration of Sentences) Regulation 2008 (NSW) does not constitute a "service" to those individuals: State of New South Wales v Whiteoak [2014] NSWCATAP 99 (4 December 2014). The conclusion of Justice Wright at [217] was that: (1) providing "services" to a person involves making available to the class of persons to which the aggrieved person belongs activities to supply the needs of, to do work for, or to assist or help that class of persons; and (2) when a governmental function or statutory duty is being performed for a purpose other than benefitting the relevant class of persons and any outcome is imposed on, rather than just being made available to, that person, it is unlikely that this will amount to "services" being "provided" in the relevant sense.
4. Justice Wright went on to say, at [153] that: ... The text of the section therefore suggests that "services" will not in this context include activities in discharge of governmental functions or statutory duties which do not have as their primary or sole function meeting the needs of consumers. …
5. The respondent submitted that it is not providing Mr Roberts with a service because the management of the mental health issues of prisoners is primarily directed to managing the behaviour of inmates. A subsidiary function is providing for the needs of inmates, an activity which benefits them, but that is not its primary function.
6. While the respondent's submissions are arguable, they are not so clearly correct as to justify refusing leave on that basis. As the respondent concedes, medical services are provided, not only to control inmates, but for their benefit. There is room for argument that they constitute a service as defined in the Anti-Discrimination Act.

Direct discrimination - differential treatment and causation

1. The first component of the test for direct disability discrimination in s 49B(1) is the "differential treatment" test. The treatment afforded to Mr Roberts must be compared with the treatment that would have been afforded to a person who did not have his disabilities in the same or similar circumstances. In the absence of an actual person whose treatment can be compared with the treatment given to Mr Roberts, a decision maker would have to rely on a hypothetical person in a comparable situation.
2. Relying on the decision of the High Court in Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92, the respondent submitted that the comparator in this case is an inmate without a disability but who exhibits oppositional violent behaviour. According to the respondent, it is obvious that such a person would have been treated in the same way Mr Roberts was treated.
3. Whether or not this is a correct understanding of the principles in Purvis as they apply to the AD Act, it is not obvious that a comparator would have been treated in the wayMr Roberts alleges he has been treated. A person who exhibited the same aggressive behaviours as Mr Roberts would not necessarily have been denied access to a psychologist or denied medical services or medication. There is no reason to assume that his aggressive behaviours justified those actions.
4. At least one of the reasons for the treatment must have been Mr Roberts' disabilities, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability: AD Act, s 4A and s 48B(1) and (2). According to Mr Roberts, it is arguable, particularly having regard to the report of Dr Adams, that there was a causal link between his disability and the alleged conduct. In Dr Adams' report of 11 March 2016 at p 7, he reviews recent Justice Health medical records and makes the following observations: I note a further entry on 12 October 2015 by a member of nursing staff relating to Mr Roberts' request to see a psychiatrist, although he could not be seen "due to previous threatening behaviour". I note the reference on 2 November 2015 to Mr Roberts "threatening self-harm", and how he remained "agitated and oppositional" on 4 November 2015. The last entry in the file was dated 10 January 2016. It does not appear that a psychiatrist has seen Mr Roberts since his last review by Dr McClure.
5. In the same report at p 11, Dr Adams questioned the "utility, as well as the ethical and clinical basis, for withholding his methadone prescription, as it appears was the case at the time of the last alleged offence".
6. As with the vast majority of complaints of discrimination, a causal link between Mr Roberts' disability and the alleged conduct would have to be established by inference from primary facts: Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262. The principles identified in Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70] are relevant.
7. The respondent challenges the evidence provided by Mr Roberts saying that it is unreliable or, at least, equivocal especially on the point of whether methadone was withdrawn. Mr Roberts is not required to prove his case at this preliminary stage. It suffices if there is some evidence which could be a foundation for a finding, or for an inference to be drawn, that the alleged conduct occurred and that his disability was a reason for that conduct. There is some evidence which meets that description and in those circumstances, it is fair and just to grant leave for the complaint to proceed.

Indirect discrimination

1. I understand that Mr Roberts is also relying on indirect discrimination as defined in s 49B(1)(b). The respondent will have discriminated against Mr Roberts 'indirectly' if: 1. it has required him to comply with a requirement or condition, 2. with which a substantially higher proportion of persons who do not have that disability comply or are able to comply, 3. such a requirement not being reasonable having regard to the circumstances of the case, and 4. with which Mr Roberts is not able to comply.
2. Mr Roberts did not develop this aspect of his complaint and as I have decided to give leave for the complaint to proceed, there is no need to consider it.

Orders

1. Leave is granted for the respondent to appear and be represented for the purpose of determining the applicant's application under s 4 of the Felons (Civil Proceedings) Act 1981 (NSW).
2. Leave is granted under s 5 of the Felons (Civil Proceedings) Act 1981 (NSW) for the applicant to institute these proceedings.
3. Leave is granted under s 96(1) of the Anti-Discrimination Act 1977 (NSW) for the applicant's complaint to proceed.
4. The publication of paragraphs 30 to 36 of the Respondent's submissions dated 8 September 2017 is prohibited. This order is made under section 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (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: 07 June 2018