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Administrative Decisions Tribunal of New South Wales |
Last Updated: 30 May 2011
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Decision Date:
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Decision:
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. Publication of the following evidence to Mr
Dezfouli is prohibited:
a) the oral evidence of Dr Keller; b) the emails, letters, statements and reports of Dr Keller dated 25 and 31 May 2010, 23 June 2010, July 2010 and 2 September 2010; (vol 1, tab C, vol 1, tab D) c) the documents in Volumes 2, 3 and 4 (Additional Material) of CSNSW’s bundle of documents that were provided to Dr Skinner and Dr Westmore for the purposes of preparing their reports, but which were not provided to Mr Dezfouli except for: (i) type written letter from Mr Dezfouli to “NSW Police Officers†dated 28 November 2001 (vol 2, tab 1 and vol 2, tab 9(2)) (ii) letter dated 18 June 2007 from Mr Dezfouli to Mr Debnam; (vol 2, tab 8 and vol 1 tab D) (iii) letter from Mr Dezfouli to Morris Iemma, then Premier of NSW dated 3 July 2008; (vol 2, tab 11 and vol 1, tab D) (iv) the 29 August 2003 alert (vol 1, tab D) (v) reasons for recommendations made by the Mental Health Review Tribunal dated 27 October 2004 (vol 2, tab 9(24) and vol 1, tab D) 2. Pursuant to section 71(4) of the Administrative Decisions Tribunal Act 1997, the Tribunal orders that a person be appointed as the representative of Mr Dezfouli in relation to the following proceedings. a) File No. 081005 b) File No. 081091 c) File No. 081129 d) File No. 091113 The role of the representative is to act in the best interest of Mr Dezfouli. 3. The proceedings to be listed for a case conference on 31 January 2011 at 9.30am |
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Legislation Cited:
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Cases Cited:
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Dezfouli v R [2007] NSWCCA 86Scott v Scott [1913] AC
417
Russell v Russell [1976] HCA 23 (1976) 134 CLR 495Q R v Commissioner of Police, NSW Police [2005] NSWADTAP 59 Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247 Re SJ and Minister for Immigration and Ethnic Affairs (1983) 5 ALN N99 CC v Djerrkura [2003] FMCA 372 Re KB and Minister for Immigration and Ethnic Affairs (1982) 4 ALN N273 Re VC and Australian Federal Police (1985) 8 ALD 587 Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] 1 WLR 1511 Murphy v Doman [2003] NSWCA 249 Murray v Williams [2010] NSWSC 1243 Slaveski v State of Victoria and Others [2009] VSC 596 Dezfouli v Justice Health [2009] NSWADT 80 Dezfouli v Department of Corrective Services [2009] NSWADT 81 |
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Representation
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Publication Restriction:
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REASONS
FOR
DECISION
Introduction
1
These proceedings concern an application by Corrective Services NSW (CSNSW) for
the Tribunal to appoint a person to
represent Mr Dezfouli on the basis that he
is totally or partially incapable of representing himself in the proceedings
because of
mental incapacity: Administrative Decisions Tribunal Act 1997
(ADT Act), s 71(4). The proceedings are four complaints of
discrimination, harassment and victimisation that Mr Dezfouli has made pursuant
to the Anti-Discrimination Act 1977 (AD Act) against CSNSW. The
complaints allege that CSNSW, through its employees, has breached the AD
Act while he has been a patient at Long Bay Hospital and, since early 2009,
at The Forensic Hospital.
2
Mr Dezfouli was found to have deliberately set a fire in the offices of the
Community Relations Commission at Ashfield
on 18 January 2002 and thereby to
have caused the death of Radmila Domonkos and extensive damage to the premises.
On 19 March 2004,
a jury found that he was not guilty of manslaughter or
maliciously damaging property by reason of mental illness. His appeal to the
Court of Criminal Appeal was unsuccessful: Dezfouli v R [2007] NSWCCA 86.
At [56] the Court concluded that, “The evidence that Mr
Dezfouli was mentally ill at the time of the offences so as not
to be
responsible according to law for his actions was
overwhelming.†Mr Dezfouli has been diagnosed as having
a
psychotic mental illness manifesting itself in the form of persecutory
delusions. His illness is said to be only partially responsive
to treatment.
3
Section 71(4) of the ADT Act gives the Tribunal power to appoint a
representative for a party in proceedings:
If it appears to the
Tribunal that a party is an incapacitated person, the Tribunal may appoint any
other person the Tribunal thinks
fit to represent the party.
4
“Incapacitated person†is defined in s
71(7) to include “a
person who is totally or partially
incapable of representing himself or herself in proceedings before the Tribunal
because the person
is intellectually, physically, psychologically or sensorily
disabled, of advanced age, a mentally incapacitated person or otherwise
disabled.†In order to determine whether an applicant is an
incapacitated person the Tribunal must find two things:
a) that he
or she is totally or partially incapable of representing him or herself in the
proceedings; and
b) that this incapacity has occurred as a result of at least
one of the causes or reasons set out in the definition of incapacitated
person.
5
Even if both these findings are made, the Tribunal has a discretion to make or
not to make an order. If an order is
made, the role of the person appointed is
generally to act as a “best interestsâ€
representative
of the person. That means that rather than acting on that
person’s instructions, the representative is to impartially
and objectively determine what is in the best interests of the person and tender
evidence or make legal submissions in accordance
with those interests: Practice
Note 15.
6
CSNSW also applied for an order under s 75(2)(c) of the ADT Act
prohibiting the publication of certain oral and documentary evidence to Mr
Dezfouli. The oral evidence that CSNSW sought to prohibit
Mr Dezfouli from
hearing was the evidence of Dr Keller, the Clinical Director of Inpatient Mental
Health Service at The Forensic
Hospital. Dr Keller’s
evidence related to the issue of whether certain documents which had been
provided to two
psychiatrists, Dr Skinner and Dr Westmore, should be disclosed
to Mr
Dezfouli.
7
At a preliminary hearing on 15 July 2010, the Tribunal made the following order
prohibiting the disclosure of certain
documents:
Pursuant to s
75(2)(c) of the ADT Act, the disclosure of volumes 2 and 3 of the
confidential documents provided by the respondent to the Tribunal on 17 June
2010 is prohibited
except that the respondent's solicitors may provide those
documents to Dr Westmore in accordance with the Tribunal's
directions.
8
The CSNSW agreed to give access to Mr Dezfouli to many of the documents in those
volumes, but a continuing order is
sought in relation to the remaining
documents. A further order was sought in relation to additional material
provided confidentially
to the Tribunal as well as to reports and correspondence
generated by Dr Keller in the process of giving his opinion about whether
publication of the documents to Mr Dezfouli should be restricted. Mr Dezfouli
opposes the application but was prevented from hearing
Dr
Keller’s evidence or seeing the material pending the
Tribunal’s final decision. CSNSW
foreshadowed that if the
Tribunal’s decision was to refuse their application for
confidentiality, they may withdraw
the documents and the evidence.
Summary of
complaints
9
The four complaints to which CSNSW’s application for the
appointment of a representative relate,
are summarised below.
a)
File No. 081005: A complaint against the Commissioner of CSNSW alleging a breach
of the sexual harassment and victimisation provisions
of the AD Act.
Mr Dezfouli alleges that on 26 March 2007 an employee of CSNSW put
his hand between his legs during a strip search. This complaint
was considered
by the Appeal Panel of the Tribunal on 23 December 2008 ([2008] NSW ADTAP 85).
The Appeal Panel remitted the matter
to the Tribunal at first instance to be
determined in accordance with the Appeal Panel’s reasons.
b) File No. 081091: A complaint against the Commissioner of CSNSW
alleging a breach of the victimisation provision of the AD Act by an
employee of CSNSW following the making of separate complaint of sexual
harassment.
Mr Dezfouli alleges that: on 6 December 2007 an
employee insisted on searching him when he was ill; on 22 February 2007 the same
employee
was rostered on the ward where Mr Dezfouli is a patient; and on 21
March 2007 the employee swore at him. On 7 January 2009, Deputy
President
Hennessy granted leave for this complaint to proceed despite the fact that it
had been declined as lacking in substance
by the President of the
Anti-Discrimination Board.
c) File No. 081129: Complaints against
the Commissioner of CSNSW and the CEO of Justice Health respectively alleging
disability discrimination
(mental illness) in the provision of
services.
Mr Dezfouli alleges that the practice of locking up
inmates with psychiatric disabilities from 4 pm until after breakfast the
following
day amounts to discrimination. (A similar complaint has been made
against Justice Health in File No 091112 but as Justice Health
is not a party to
these proceedings, the Tribunal has no jurisdiction to determine the question of
Mr Dezfouli’s
capacity in relation to the complaint against
Justice Health.)
d) File No. 091113: A complaint against the
Commissioner of CSNSW alleging disability discrimination (mental illness) in the
provision
of services in relation to an alleged denial of the right to education
and access to the prison library.
Procedural background
10
In mid-2009 CSNSW foreshadowed that it may apply to the Tribunal for an order
that a person be appointed to represent
Mr Dezfouli because of his incapacity.
On 19 August 2009 Mr Dezfouli told the Tribunal that he had arranged for a
psychiatrist, Dr
Bruce Westmore, to prepare a report in relation to his capacity
and he was content for the Tribunal to provide a copy of that report
to CSNSW.
At a case conference on 30 September 2009 CSNSW considered Dr Westmore's report
and proposed that he be given further documents
to consider including Mr
Dezfouli's clinical records. The Tribunal directed CSNSW to provide the
documents to Dr Westmore confidentially
but Dr Westmore refused to provide a
further report without Mr Dezfouli's consent. On the 27 January 2010 Mr Dezfouli
refused to
consent to that course or to be examined by any other expert witness.
Directions were then made for Mr Dezfouli to file Points of
Claim in relation to
all matters by 27 April 2010. No documents were filed but Mr Dezfouli said that
he had given them to a nurse
to send but had not kept a copy for himself.
Meanwhile, CSNSW had obtained a report from another psychiatrist, Dr Skinner,
and had
lodged an application for Mr Dezfouli's capacity to be the subject of a
hearing. The hearing was set down for 15 July
2010.
11
Directions were made for the filing and service of evidence but Mr Dezfouli did
not file any further material. Enquiries
were made and while it appeared that Mr
Dezfouli wished to rely on Dr Westmore's report, he had not arranged for him to
be available
for cross-examination. On 15 July 2010 the matter was adjourned
because Mr Dezfouli indicated that he wished to rely on Dr Westmore's
report. He
agreed to give Dr Westmore permission to review confidential documents to be
provided by CSNSW and to prepare a further
report. Mr Dezfouli understood that
those documents would not be disclosed to him at that stage of the proceedings.
Dr Westmore prepared
a further report taking into account those documents. Mr
Dezfouli also agreed to give Dr Westmore permission to give oral evidence
to the
Tribunal. The matter was adjourned to 7 September 2010 to allow Dr Skinner, Dr
Westmore and Dr Keller to attend and give evidence
before the Tribunal.
Evidence of
capacity
12
The evidence relied on by CSNSW in relation to Mr Dezfouli’s
capacity to represent himself
comprised:
a) a report from Dr Skinner dated 9 March 2010 expressing the opinion that
Mr Dezfouli is not capable of representing himself in these
proceedings;
b) a
bundle of materials sent to Dr Skinner;
c) further material provided to Dr
Skinner for which a confidentiality order is sought;
d) a statement from Ms
Singer, solicitor for CSNSW dated 2 June 2010 setting out the details of other
complaints made by Mr Dezfouli
against CSNSW under the AD Act and the
outcome of those
complaints.
13
CSNSW also arranged for Dr Westmore to provide an up to date report. Mr Dezfouli
relied on two reports from Dr Westmore
dated 14 July 2009 and 2 September 2010
and on his oral evidence, which was to the effect that Mr Dezfouli was capable
of representing
himself.
Test for confidentiality orders
14
The order is sought pursuant to s 75(2)(d) of the ADT Act:
(1) If proceedings before the Tribunal are to be determined by
holding a hearing, the hearing is to be open to the public.
(2)
However, if the Tribunal is satisfied that it is desirable to do so by reason of
the confidential nature of any evidence or matter
or for any other reason, it
may (of its own motion or on the application of a party) make any one or more of
the following orders:
. . .
(d) an order prohibiting
or restricting the disclosure to some or all of the parties to the proceedings
of evidence given before the
Tribunal, or of the contents of a document lodged
with the Tribunal or received in evidence by the Tribunal, in relation to the
proceedings.
15
The principles which can be derived from the Tribunal’s
previous consideration of this provision
can be summarised as
follows:
a) the primary purpose of section 75 is to reinforce
the long held and well-established principle of open justice: Scott v
Scott [1913] AC 417; Russell v Russell [1976] HCA 23; (1976) 134 CLR
495;
b) the test under section 75(2) is whether suppression is
“desirable†because of the confidential
nature of the evidence or for any other reason. The discretion should be
"strictly and narrowly construed, and operate only if and
when there is a public
interest supporting their use which outweighs the public interest in the
implementation of the fundamental
principles of open justice and procedural
fairness": QR v Commissioner of Police, NSW Police [2005]
NSWADTAP 59 at
[20].
16
The second principle is consistent with the words of Brennan J, then President
of the Administrative Appeals Tribunal,
in Pochi v Minister for Immigration
and Ethnic Affairs (1979) 26 ALR 247 at 273. His Honour expressed the view
that to prevent a party, as opposed to members of the public, from seeing or
hearing certain
evidence, it must appear that “exclusion of
the party is essential to preserve the proper confidentiality of the
information.†The information must be “of
such importance and cogency that justice is more
likely to be done by receiving
the information in confidence than by refusing an order to exclude the
party.â€
In that case Brennan J held at p 274 that the public
interest in protecting the sources of information used to combat crime were
paramount and the material was withheld from Mr Pochi.
17
Other examples of circumstances where courts and tribunal have considered it
appropriate to make suppression orders,
albeit where the test has been worded
more narrowly, are:
a) to conceal the nature or extent of a
party’s medical condition;
b) where disclosure
would prejudice a party’s health or rehabilitation: Re SJ
and Minister for Immigration and Ethnic Affairs (1983) 5 ALN N99) and CC
v Djerrkura [2003] FMCA 372;
c) where a child is involved:
Re KB and Minister for Immigration and Ethnic Affairs (1982) 4 ALN N273);
and
d) where a person’s reputation may be
affected: Re VC and Australian Federal Police (1985) 8 ALD
587.
18
The Tribunal is not bound by the rules of evidence and may inquire into and
inform itself on any matter in such manner
as it thinks fit, subject to the
rules of natural justice: ADT Act, s 73(2). Similar provisions have been
interpreted to mean that the Tribunal may have regard to evidence which is not
legally admissible
but which is logically probative, including circumstantial
and hearsay evidence. Nevertheless, the Tribunal should be mindful of
the rules
of evidence and their rationale: Re Pochi and Minister for Immigration and
Ethnic Affairs 26 ALR 247 at p 256.
Documents and evidence
for which confidentiality order
sought
19
The documents provided by Justice Health pursuant to a summons issued by CSNSW
were in evidence. No suppression order
is sought in relation to those documents.
20 Dr
Keller, Clinical Director of Inpatient Mental Health Service at The Forensic
Hospital, prepared reports and gave oral
evidence expressing the view that
certain documentary material relied on by Dr Skinner and Dr Westmore for the
purpose of expressing
an opinion in these proceedings should not be disclosed to
Mr Dezfouli. The material over which a confidentiality order has been
sought can
be summarised as follows:
a) the oral evidence of Dr
Keller;
b) the emails, letters, statements and reports of Dr Keller
dated 25 and 31 May 2010, 23 June 2010, July 2010 and 2 September
2010;
(vol 1, tab C, vol 1, tab D)
c) certain documents in Volumes
2, 3 and 4 (Additional Material) of CSNSW’s bundle of
documents that was provided
to Dr Skinner and Dr Westmore for the purposes of
preparing their reports.
21 Not
for publication
Evidence in support of confidentiality
order
22
Not for
publication
23
Not for
publication
24
Not for
publication
25
Documents written by Mr Dezfouli. Dr Keller expressed the view that the
letters written by Mr Dezfouli himself should be disclosed to Mr
Dezfouli….
(remainder of sentence not for publication).I
accept that view. (Sentence not for
publication).
26
Not for
publication
27
Not for
publication
28
Not for
publication
29
Not for
publication
30
Reasons for recommendations made by the Mental Health Review Tribunal.
This document is a recommendation to the Minister together with reasons that
was made at a time when the MHRT did not have power to
make binding decisions in
relation to forensic patients. I understand that the practice of the MHRT at
that time was not to make
the recommendations public. The document reflects what
took place at a hearing which Mr Dezfouli attended with Dr Mastroianni and
a
registered nurse on 5 August 2004. There is nothing in that document which Mr
Dezfouli does not already know. CSNSW did not make
any specific submission or
lead any evidence as to why the document should not be disclosed. This document
should not be included
in any suppression
order.
31
Not for
publication
32
Not for
publication
33
Not for publication
34
Not for
publication
35
Dr Keller considered that the alert dated 29 August 2003 should be disclosed to
Mr Dezfouli because it does not contain
any specific information which would
identify any individual. Although it identifies the positions of Chief Executive
and Executive
Director those officers are listed as a potential passive
recipients of information. I accept that view and find that the 29 August
2003
alert should not be included in any suppression
order.
36
Not for
publication
37
Conclusion. I have refused CSNSW’s application for a
non-publication order in relation to the following documents:
(i)
type written letter from Mr Dezfouli to “NSW Police
Officers†dated 28 November 2001 (vol
2, tab 1 and vol 2, tab
9(2))
(ii) letter dated 18 June 2007 from Mr Dezfouli to Mr Debnam;
(vol 2, tab 8 and vol 1 tab D)
(iii) letter from Mr Dezfouli to
Morris Iemma, then Premier of NSW dated 3 July 2008; (vol 2, tab 11 and vol 1,
tab D)
(iv) the 29 August 2003 alert (vol 1, tab D)
(v) reasons for recommendations made by the Mental Health Review
Tribunal dated 27 October 2004 (vol 2, tab 9(24) and vol 1, tab
D)
38
Mr Dezfouli wrote the first three documents. While he may not be aware of the 29
August 2003 alert, Dr Keller took the
view that there was no reason why that
document could not be disclosed to him. The reasons for recommendation made by
the MHRT reflect
the evidence that was given at the hearing that Mr Dezfouli
attended and no specific evidence was presented or submissions made which
would
justify withholding that document. The fact that Mr Dezfouli did not have access
to these documents before or during the hearing
meant that he was not able to
make any submissions about them. However, Dr Westmore, who gave evidence
supporting Mr Dezfouli’s
position, did have access to those
documents. There is no need, from a procedural fairness point of view, to give
Mr Dezfouli an
opportunity to make further submissions in the light of that
evidence. Apart from the alert, the material in those documents was
already
within Mr Dezfouli’s knowledge.
Test for
incapacity
39
In order to determine whether an applicant is an incapacitated person the
Tribunal must find two things:
a) that he or she is totally or
partially incapable of representing him or herself in the proceedings; and
b)
that this incapacity has occurred as a result of at least one of the causes or
reasons set out in the definition of incapacitated
person.
40
CSNSW submitted that Mr Dezfouli is partially incapable of representing
himself. There is a presumption that a person who is over 18 years of age is
capable of representing himself
or herself in proceedings. The onus is on the
party asserting incapacity to prove their case on the balance of probabilities.
41 The
Tribunal’s Practice Note No 15 provides some guidance in
relation to the appointment of a representative
under s 71(4) of the ADT
Act. It notes in paragraph 2.4 that, “It is not possible
to define the conduct or behaviour which indicates incapacity.
The decision as
to incapacity is one that the Tribunal or Appeal Panel must make relying on
objective evidence.â€
Nevertheless, courts have formulated
tests for capacity in similar contexts and given examples of conduct which may
indicate incapacity.
The Tribunal’s power to appoint a
representative is based on similar policies to the power to appoint a tutor
or
litigation guardian in court proceedings. Those policies were expressed by
Kennedy LJ in Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] 1
WLR 1511 at [31] as follows:
In the context of litigation, rules as
to capacity are designed to ensure that plaintiffs and defendants who would
otherwise be at
a disadvantage are properly protected, and in some cases that
the parties to litigation are not pestered by other parties who should
be to
some extent
restrained.
42
In the same case at [65] Chadwick LJ also emphasised the dual policy objectives
of appointing a representative for an
incapacitated person:
The
pursuit and defence of legal proceedings are juristic acts which can only be
done by persons having the necessary mental capacity;
and the court is concerned
not only to protect its own process but to provide protection to both parties to
litigation which comes
before it. A defendant is entitled to expect that he will
not be required to defend proceedings brought against him by a person of
unsound
mind acting without a next friend.
43 The
Civil Procedure Act 2005 provides that a person, who is under a legal
incapacity in relation to the conduct of legal proceedings, must act through a
tutor:
Part 7 r7.14. The District Court Rules 1973 provide that an
“incompetent personâ€, that is a person
incapable of managing his affairs, may
not bring or make a claim, except by his
tutor or next friend: Pt 45, r 5(3). In Murphy v Doman [2003] NSWCA 249,
the Court of Appeal said at [35] in relation to self-represented applicants
that:
The cases do no consider the level of mental capacity
required to be a “competent†litigant
in
person but it cannot be less than that required to instruct a solicitor. It
should be greater because a litigant in person has
to manage court proceedings
in an unfamiliar and stressful
situation.
44
In that case, the Court of Appeal held at [37] that a plaintiff who had a
psychotic illness and had ‘lost
touch with
reality’ was incapable of managing the legal proceedings he
was attempting to conduct on his own behalf.
Mr Murphy had prepared lengthy
written submissions but told the judge that he did not wish to tender them
saying that it had all
become ‘too muchâ€
for him.
45 The
principles formulated in that and other cases were applied by the Supreme Court
in Murray v Williams [2010] NSWSC 1243. The Court held at [26] quoting
Masterman-Lister v Brutton & Co at [75], that the test to be applied
to a person represented by a lawyer was “ . . . whether the
party to legal
proceedings is capable of understanding, with the assistance of
such proper explanation from legal advisers and experts in other
disciplines as
the case may require, the issues on which his consent or decision is likely to
be necessary in the course of those
proceedings.†The Court
decided that although Mr Murray had had a stroke and his ability to communicate
was impaired,
he was able to demonstrate that he understood the nature of the
operation of a Will and that he did not want to change or challenge
it. The
Court held that Mr Murray was not a person under a legal
incapacity.
46
In Slaveski v State of Victoria and Others [2009] VSC 596, Kyrou J found
that a litigation guardian should be appointed for a self represented plaintiff
who had an anxiety disorder. Mr Slaveski
has sued 19 police officers and the
State of Victoria seeking damages for various causes of action including assault
and battery,
wrongful arrest, false imprisonment, malicious prosecution,
defamation, trespass to land, trespass to goods and negligence. During
the
course of a trial that had run for more than 20 days, Mr Slaveski had
intermittently behaved in ways which Kyrou J described
as disrespectful,
argumentative and abusive. Kyrou J usefully identified the following issues as
potentially relevant when determining
whether a self-represented party is
capable of representing himself or herself. These issues accord with the policy
objectives and
the legal tests that the courts have formulated when considering
whether to appoint a person to represent a party with an incapacity.
(a) Does the plaintiff understand the factual framework for his or
her claims and the type of evidence required to succeed in his
or her claims?
(b) Is the plaintiff capable of understanding what is relevant to
the proceeding and what is not relevant when these matters are explained
to him
or her?
(c) Is the plaintiff capable of assessing the impact of
particular evidence on his or her case?
(d) Is the plaintiff able
to understand the Court processes and the basic rules for conducting his or her
case when these matters
are explained to him or her?
(e) Is the
plaintiff able to understand Court rulings made during the trial when they are
explained to him or her?
(f) Assuming the plaintiff is able to
understand Court processes, the basic rules of conducting his or her case and
Court rulings,
is he or she capable of complying with them and directions given
by the judge?
(g) Does the plaintiff understand the roles of
counsel for the defendant, witnesses and the judge and is he or she capable of
respecting
those roles and allowing the relevant individuals to discharge their
duties without inappropriate interference or abuse?
(h) Is the
plaintiff able to control his or her emotions and behave in a non-abusive and
non-threatening manner when events do not
go his or her way during the trial
(such as when adverse rulings are made by the judge, questions are asked in
cross-examination
on sensitive issues or unfavourable answers are given by
witnesses)?
(i) Does the plaintiff have an insight into the
possible adverse consequences of his or her behaviour in court, including delay
in
the resolution of the claims, the defendant incurring additional costs that
the plaintiff might have to pay if the claims are unsuccessful
and the tying up
of scarce judicial resources when these matters are explained to him or
her?
(j) Does the plaintiff understand that he or she could
possibly lose the case in whole or in part when this matter is explained to
him
or her?
(k) If the cumulative effect of the evidence is such that a
lay person of reasonable intelligence and common sense would form the
view that
a particular claim will fail, would the plaintiff be capable of forming such a
view?
(l) Is the plaintiff capable of assessing any settlement
proposal on its merits, having regard to the state of the evidence, the
parties’
submissions and other developments in the
proceeding as at the time the proposal is made?
(m) If the trial
is long and complex, is there a risk that the stress and pressure of the
litigation might harm the plaintiff’s
physical or mental
health?
47
Based on the case law and the policy objectives of s 71(4), a person will be
totally or partially incapable of representing
himself or herself if, because of
one of the disabilities listed in s 71(7), the person is unable to conduct the
proceedings in a
sufficiently competent, co-operative and objective manner. In
determining whether a person exhibits those attributes to a sufficient
degree,
the Tribunal must be mindful of its obligations under s 73(4) of the ADT
Act to take such measures as are reasonably practicable:
a) to
ensure that the parties to the proceedings before it understand the nature of
the assertions made in the proceedings and the
legal implication of those
assertions, and
b) if requested to do so – to
explain to the parties any aspect of the procedure of the Tribunal, or any
decision
or ruling made by the Tribunal that relates to the proceedings,
and
c) to ensure that the parties have the fullest opportunity
practicable to be heard or otherwise have their submissions considered
in the
proceedings.
Evidence of
incapacity
48
Not for
publication
49
Not for
publication
50
Not for
publication
51
Not for
publication
52
Not for
publication
53
Opinion of Dr Skinner. Dr Skinner is a consultant psychiatrist with over
30 years experience in psychiatry including significant experience with forensic
psychiatry. Mr Dezfouli refused to talk to her so her conclusions were based on
the examination of various documents. Dr Skinner
noted that there was a general
consensus among doctors who have examined him, that Mr Dezfouli suffers from a
psychotic mental illness
characterised by delusions. She said that Mr Dezfouli
appears to have sufficient knowledge of the law to understand the nature of
the
proceedings to prepare the necessary paper work. However he has delusions in
relation to authority and his perceptions of his
treatment by authority figures
is affected by his delusional beliefs. She did not consider him to be capable of
representing himself
before the
Tribunal.
54
Opinion of Dr Westmore. Dr Westmore has been a psychiatrist for 23 years
and has significant experience in the United Kingdom and Queensland prison
systems.
He interviewed Mr Dezfuoli for 2 ½ hours and noted that he
has been diagnosed as suffering from a psychotic illness which
he described as a
delusional disorder. He wrote two reports, one dated 14 July 2009 and the other
2 September 2010. The second report
included consideration of the confidential
material discussed above. Dr Westmore concluded that Mr Dezfouli was capable of
representing
himself. He said that the fact that a person is psychotic and
paranoid does not necessarily result in them being incapacitated. Dr
Westmore
did not consider his complaints of discrimination and harassment to be bizarre
or peculiar.
55
Complaint history. As well as the complaints that are the subject of
these proceedings, Mr Dezfouli has made several complaints of discrimination and
harassment which have either been declined by the President of the
Anti-Discrimination Board or where the Tribunal has refused leave
to proceed.
Those complaints include multiple complaints of sexual harassment, disability
discrimination, race discrimination and
victimisation. The details are set out
in the 2 June 2010 statement of Glen Singer, a solicitor employed by CSNSW.
Discussion
56
To varying degrees, CSNSW submitted that Mr Dezfouli was not sufficiently
competent, co-operative or objective to represent
himself in the proceedings.
Most of Kyrou J’s issues, referred to at [46] can be
conveniently divided into one
or other of those categories.
57
Competence. There is no dispute that Mr Dezfouli is an intelligent and
articulate man who has a better than average understanding of the law
and its
processes. He has represented himself in numerous proceedings before the
Tribunal in the past, both in the Equal Opportunity
Division and in the General
Division where has brought applications under the Freedom of Information
Act 1989. He represented himself in proceedings before the Court of Criminal
Appeal: Dezfouli v R [2007] NSWCCA 86. Among the list of thirteen issues
Kyrou J identified in Slaveski v State of Victoria, at least five relate
primarily to a party’s competence. A party will be competent
if he or she:
(i) can understand the factual framework for his or
her claims and the type of evidence required to succeed in his or her claims;
Issue (a)
(ii) can understand what is relevant to the proceedings
and what is not relevant; Issue (b)
(iii) can understand the
Tribunal’s processes and the basic rules for conducting his
case; Issue (d)
(iv) can understand the
Tribunal’s rulings made during the hearing; Issue (e)
and
(v) can understand the Tribunal’s
processes, the basic rules of conducting his or her case and Tribunal rulings
and is capable of complying with them and with directions given by the Tribunal
Member; Issue
(f).
58
Issue (a) in Kyrou J’s list asks whether an applicant
understands the factual framework for his claim
and the type of evidence
required to succeed in his claim. CSNSW submitted that Mr Dezfouli does not
appreciate that he needs to
do more than merely assert that he has been
discriminated against on the ground of disability. Dr Skinner expressed the view
that
Mr Dezfouli would not understand that merely asserting that he had been
discriminated against would be insufficient to prove his
case. Dr
Westmore’s view was that any difficulty Mr Dezfouli might
have in that regard is not as a result of
a mental illness. From my experience,
there is seldom direct evidence of causation in discrimination cases. Whether or
not a person
has been unlawfully discriminated against on the ground of
disability is commonly an issue requiring an inference to be drawn from
all the
circumstances. The fact that Mr Dezfouli has ‘merely
asserted’ disability discrimination
does not mean that he
lacks the competence to represent himself.
59 I
accept Dr Westmore evidence, which is consistent with Mr
Dezfouli’s conduct before me, that he
is able to express his
allegations in a clear and detailed way and understand the evidence. CSNSW
submitted that Mr Dezfouli has
failed to comply with directions and has failed
to advance his case in a clear and cogent fashion. I agree that there have been
instances
where Mr Dezfouli has failed to comply with directions and has filed
irrelevant material. However, taking all the evidence into account,
I am not
satisfied that any lack of competence Mr Dezfouli has exhibited is sufficient to
form the view that he is incapable of representing
himself.
60
Co-operation. Issues (g) and (h) of Kyrou J’s list
ask whether an applicant has respect for the roles of counsel for the
respondent,
witnesses and the judge and is able to control his emotions and
behave in a non-threatening manner towards those people. There is
no evidence of
Mr Dezfouli showing any lack of respect for counsel for the respondent,
witnesses or Tribunal Members. Mr Dezfouli,
who appears by phone in every case,
has conducted himself in a polite, restrained and generally appropriate manner
before me. There
is, however, evidence that Mr Dezfouli is not able to remain
calm and polite in all his interactions with and correspondence about
Justice
Health employees. In his correspondence with various government officials and
bodies he routinely describes Justice Health
employees as corrupt and criminal
thugs. His progress notes record that he has been abusive, argumentative and
hostile to nursing
staff, and has made threats to staff and doctors. Dr Skinner
expressed the view that any threats made by Mr Dezfouli should be taken
seriously because he has no insight and the index offence occurred following
written threats to persons in authority. Despite his
abusive and threatening
conduct towards Justice Health employees and others who have direct contact with
him, I am satisfied because
of the way that he has behaved in proceedings before
me, that he is able to conduct himself in a non-abusive and non-threatening
manner in the context of Tribunal proceedings. He is not sufficiently
unco-operative to justify the appointment of a
representative.
61
Objectivity. Mr Dezfouli’s lack of objectivity, as a
result of his mental illness, justifies the appointment of a
representative.
Issue (c) in Kyrou J’s list asks
whether an applicant is capable of assessing the impact of particular evidence
on his or her case? This was one of the main points that CSNSW put forward in
their evidence and submissions. Dr Skinner said that
Mr Dezfouli was not capable
of representing himself because “he has delusions in relation
to authority and his
perceptions of his treatment by authority figures is
affected by his delusional beliefs.†At the time of the index
offence, and intermittently since that time, Mr Dezfouli has focused on
political figures. Since he has been detained, his focus
has increasingly been
on staff in his new environment. Dr Skinner said that Mr
Dezfouli’s complaints of discrimination
and harassment are
reflective of the persistent theme in Mr Dezfouli’s
correspondence with various government
agencies that people in authority were
biased against him, disliked him or were trying to persecute him. These claims
were so consistent
and pervasive and related to people who are otherwise highly
regarded, that she believes them to be delusional. She said that because
of
these fixed beliefs, Mr Dezfouli would not be capable of evaluating conflicting
evidence or of being persuaded to another point
of view, even by cogent evidence
or argument.
62 Dr
Westmore disagreed. He said that Mr Dezfouli would have no difficulty in
understanding that there may be conflicting
evidence and added that an
individual does not need to be psychotic to have difficulty evaluating
conflicting evidence. Dr Westmore
was less willing to characterise Mr
Dezfouli’s complaints of discrimination and harassment as
delusional. He
distinguished between the persecutory beliefs which Mr Dezfouli
exhibited in relation to former Prime Minister, Mr Howard at the
time of the
index offence, and his current complaints. He said that the more bizarre the
complaints are, the less likely they are
to be reality based. While his earlier
beliefs were bizarre and peculiar his current complaints are not. He conceded
that Mr Dezfouli’s
ideas might be paranoid and that he
continues to express persecutory beliefs, but those beliefs are not necessarily
delusional. Nevertheless,
Dr Westmore expressed the view that it was generally
unwise for people to run their own cases because they lost
“the
buffer of objectivity which can be provided by a legal
representativeâ€.
63
Issue (k) in Kyrou J’s list asks whether, if the cumulative
effect of the evidence is such that a
lay person of reasonable intelligence and
common sense would form the view that a particular claim will fail, whether the
applicant
would be capable of forming such a view. Issue (l) is similar. Kyrou J
asks whether the applicant is capable of assessing any settlement
proposal on
its merits. Dr Skinner said that Mr Dezfouli would not be able to evaluate
whether he had a strong or weak case. Dr Westmore
agreed but said that that was
typical of many self-represented parties. I am not satisfied that Mr Dezfouli
would be able to assess
the merits of the complaints or any settlement proposal.
A related question is whether Mr Dezfouli understands that he could possibly
lose the case in whole or in part (Issue j). Dr Westmore gave evidence that Mr
Dezfouli told him that he understood that it would
be up to the Tribunal
to make a determination as to the merits of his allegations. Dr Skinner said
that despite this understanding,
Mr Dezfouli would be dissatisfied with any
adverse decision, and infer that the decision maker is biased. Mr Dezfouli has
applied
for a Tribunal Member to disqualify herself for actual bias on two
occasions in relation to applications under the Freedom of Information
Act 1989. Those applications were unsuccessful: Dezfouli v Justice
Health [2009] NSWADT 80 (16 April 2009) and Dezfouli v Department of
Corrective Services [2009] NSWADT 81. Mr Dezfouli has also appealed against
a decision of the same Tribunal Member on the ground, among others, of bias. The
appeal was
unsuccessful: Dezfouli v Justice Health [2008] NSWADTAP
72. I am satisfied that Mr Dezfouli understands that he could lose his
discrimination and harassment cases. He has been unsuccessful
in several
previous matters. While he has appealed on the ground of bias against a decision
made in relation to an application under
the FOI Act, he has not appealed
against every adverse decision the Tribunal has made nor has he consistently
applied for Tribunal Members to
disqualify themselves for bias.
64
Despite understanding that he may lose the case, I am satisfied that the nature
and severity of Mr Dezfouli’s
lack of objectivity means that
he is partially incapable of representing himself in the proceedings. That
incapacity arises from
his mental illness. I accept Dr Skinner evidence that Mr
Dezfouli’s complaints of discrimination and harassment
are
reflective of the persistent theme in Mr Dezfouli’s
correspondence with various government agencies that
people in authority were
biased against him, disliked him or were trying to persecute him. These claims
were so consistent and pervasive
and related to people who are otherwise highly
regarded, that she believes them to be delusional. Dr Westmore agreed that Mr
Dezfouli’s
ideas might be paranoid and that he continues to
express persecutory beliefs. In my view, it is not necessary for those beliefs
to
be delusional for Mr Dezfouli to lack the capacity to represent himself. Even
if they are not obviously delusional, those beliefs
significantly affect Mr
Dezfouli’s capacity to represent himself because, among
other things, they prevent him
from being able to evaluate conflicting evidence,
objectively assess the merits of his complaints and respond in his best
interests
to any settlement proposal. It is irrelevant that parties
without a mental illness may also lack objectivity. It is the nature and
severity of Mr Dezfouli’s persecutory beliefs and the fact
that they arise from a mental illness that justifies
an order being made.
65
Appointment of a representative will ensure that Mr
Dezfouli’s claims are assessed more objectively
by a person
who does not have Mr Dezfouli’s persecutory beliefs. As a
best interest representative, that person
may take the view that his claims have
substance and should be pursued, that the claims should be settled or that they
should be
withdrawn. Ensuring that a person with a sufficient level of
objectivity makes those decisions protects the interests of both parties.
Order
1. Publication of the following evidence
to Mr Dezfouli is prohibited:
a) the oral evidence of Dr
Keller;
b) the emails, letters, statements and reports of Dr Keller
dated 25 and 31 May 2010, 23 June 2010, July 2010 and 2 September
2010;
(vol 1, tab C, vol 1, tab D)
c) the documents in Volumes 2, 3
and 4 (Additional Material) of CSNSW’s bundle of documents
that were provided
to Dr Skinner and Dr Westmore for the purposes of preparing
their reports, but which were not provided to Mr Dezfouli except
for:
(i) type written letter from Mr Dezfouli to
“NSW Police Officers†dated 28 November
2001 (vol
2, tab 1 and vol 2, tab 9(2))
(ii) letter dated 18 June
2007 from Mr Dezfouli to Mr Debnam; (vol 2, tab 8 and vol 1 tab
D)
(iii) letter from Mr Dezfouli to Morris Iemma, then Premier of
NSW dated 3 July 2008; (vol 2, tab 11 and vol 1, tab D)
(iv)
the 29 August 2003 alert (vol 1, tab D)
(v) reasons for
recommendations made by the Mental Health Review Tribunal dated 27 October 2004
(vol 2, tab 9(24) and vol 1, tab D)
2. Pursuant to section 71(4) of
the Administrative Decisions Tribunal Act 1997, the Tribunal orders that a
person be appointed as the representative of Mr Dezfouli in relation to the
following proceedings.
a) File No. 081005
b) File No. 081091
c) File No.
081129
d) File No. 091113
The role of the
representative is to act in the best interest of Mr Dezfouli.
3.
The proceedings to be listed for a case conference on 31 January 2011 at
9.30am.
**********
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