CITATION: Dezfouli v Department of Corrective Services [2008] NSWADT 277 DIVISION: Equal Opportunity Division APPLICANT Saeed Dezfouli PARTIES: RESPONDENT Department of Corrective Services FILE NUMBER: 081076 HEARING DATES: 12 August 2008 DATE OF DECISION: 12 August 2008 BEFORE: Needham J SC - Deputy President CATCHWORDS: Application for leave to proceed under section 92(A) of the Anti-Discrimination Act 1977 LEGISLATION CITED : Anti-Discrimination Act 1977 Mental Health Act 1990 Blair v Curran (1939) 62 CLR 464 Xu v Sydney West Area Health Service [2006] NSWADT 3 Dezfouli v Justice Health and anor [2008] NSWADT 99 CASES CITED: 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 [2008] NSWADT 155 Dezfouli v Department of Corrective Service & anor [2008] NSWADT 198 Rainsford v State of Victoria & Anor (2007) 242 ALR Rainsford v State of Victoria [2008] FCAFC 31 APPLICANT in person (by telephone) REPRESENTATION: RESPONDENT G Singer, solicitor ORDERS: 1. Leave is refused. REASONS FOR DECISION The Application 1. The applicant, Mr Dezfouli, brings an application for leave to proceed under section 92(A) of the Anti-Discrimination Act (1977) ("the Act"). He brings complaints under various sections of the Act which are, generally sexual harassment, sex discrimination against the first and second respondent, aiding and abetting against the second respondent and vicarious liability under the various provisions of the Act relating to the provision of goods and services. 2. The applicant points to the conduct of the second respondent, being an employee of the first respondent, and alleges that his conduct amounts to sex discrimination and harassment. 3. The sections of the Act relied upon to ground the complaint are sections 22A, 22F, 23, 24, 33, 52 and 53 of the Act. 4. The elements of the complaints are:- a. that he was being provided with a service; b. in the course of providing those services the second respondent engaged in unwelcome conduct; c. that conduct was a sexual advance, a request for sexual favours or other conduct of a sexual nature; d. the conduct is "in relation to" the applicant; and e. a reasonable person, having regard to all the circumstances, would have anticipated that The applicant would be offended, humiliated or intimidated by that conduct: see sections 22A and 22F of the Act. 5. The facts are as follows. 6. The applicant is an inmate at Long Bay Hospital and is being managed by the Mental Health Review Tribunal pursuant to the Mental Health Act 1990. 7. The applicant's complaints arise out of his participation in the "early shower programme" at Long Bay Hospital. The "early shower programme" was put in place to provide inmates in particular circumstances the opportunity of an early shower to secure their safety and generally the order of the forensic unit the hospital. 8. There is some dispute as to what happened on 21 December 2007 but the applicant alleges that the second defendant entered the shower room and told the applicant to "hurry up". The applicant alleges that the second defendant had his eyes on the applicant's genitals when he did so, and that that conduct made the applicant "uncomfortable, annoyed, bothered and angry". He took issue with the second respondent's viewing of his genitals and then the second respondent left the shower room. 9. The second respondent admitted that he entered the shower room, told the applicant to hurry up, and then left. He denies the other conduct alleged. 10. The applicant complains that there was no reason for the second respondent to enter the shower room. He alleges that Mr Kent's conduct made him feel offended and, in the circumstances, that it constituted sexual harassment. 11. The applicant complained to the Anti-Discrimination Board. The Report of the President, the covering letter and the summary of the complaint were in evidence as Exhibit 1. 12. As the complaint was declined by the President as lacking in substance under section 92 of the Act, and the applicant sought that the matters be referred to this Division of the Tribunal, leave is required for the matter to proceed (see section 96 of the Act). 13. The proper approach to an application for leave is found in Xu v Sydney West Area Health Service [2006] NSWADT 3 at [17] and [18]: '17. The legislature has not given the Tribunal the task of conducting a merits review of the President's decision. Consequently, it is not the Tribunal's task to determine whether the President has made the correct and preferable decision in declining the complaint as lacking in substance. Nor has the legislature given applicants a right to appeal to the Tribunal against the legality of the President's decision. It is not up to the Tribunal to determine whether or not the President has made an error of law. Nevertheless, as with appeals to the Court of Appeal and the Federal Court against interlocutory decisions, the legislature has given the Tribunal a gatekeeper role. That role is to ensure that a fair balance is struck between the interests of complainants in having their complaints heard and determined and the interests of respondents in not having to spend money defending unmeritorious claims. There is also a public interest in ensuring that unmeritorious complaints do not proceed to hearing. The legislature has placed the onus on the applicant to satisfy the Tribunal that the complaint should proceed notwithstanding the President's decision that it lacks substance. 18. The discretion to have a complaint heard by the Tribunal when it has been declined as lacking in substance is unfettered and should not be constrained by rigid rules or criteria. Given the drafting history, the nature of the President's decision and the decisions of superior courts in comparable circumstances, leave should be granted when the applicant is able to show a substantial reason for leave being granted. A substantial reason may include the fact that the complaint has reasonable prospects of success. To have reasonable prospects of success a complaint of direct discrimination must include some direct evidence, or evidence from which an inference can be drawn, linking the alleged treatment with the ground of discrimination." 14. The respondents, who were each represented by Ms G. Singer, makes a number of submissions in relation to the matter. Firstly, she says that the complaint are vexatious. She points to two other complaints which have already been declined by the Tribunal in similar circumstances, she also says that there is an issue estoppel which arises out of those complaints. 15. The other complaints brought by the applicant raise different factual issues. I do not consider that findings on different factual issues and against different second respondents (ie, the employees of the relevant Departments of the government of State of New South Wales) could found an issue estoppel – see Blair v Curran (1939) 62 CLR 464 at 53. Further, such an estoppel requires a final decision of the Tribunal, and a decision not to grant leave is of its nature interlocutory. 16. The solicitor for the respondents further pointed to the difficulties faced by the applicant in showing that the respondents or either of them were providing a 'service". It appears that at least two complaints have had an application for leave declined (see Dezfouli v State of New South Wales (Justice Health) and anor [2008] NSWADT 122 and Dezfouli v State of New South Wales (Justice Health) and anor [2008] NSWADT 155), each decision being a decision of Magistrate Hennessy, Deputy President. However, in relation to a further complaint brought by the applicant (Dezfouli v Department of Corrective Service & anor [2008] NSWADT 198), the complaint did not require leave. In that decision (at [50] Judicial Member Layton said:- "The Tribunal agrees that it is desirable to have consistency in Tribunal decisions. However, this Tribunal distinguishes the decisions of Dezfouli v State of New South Wales (Justice Health) and anor [2008] NSWADT 122 and Dezfouli v State of New South Wales (Justice Health) and anor [2008] NSWADT 122 (sic), for the following reasons. First, in the said cases , Deputy President Hennessy was dealing with different issues, that is, she was considering whether to grant leave for Mr Dezfouli to proceed with claims which had been rejected by the President of the Anti-Discrimination Board as lacking in substance. Being different issues, there were different considerations to the present case where the claims were forwarded by the President. Secondly, Deputy President Hennessy did not find that Mr Dezfouli was not provided with a 'service' by the DCS. Rather, she found it would be problematic for Mr Dezfouli to prove a 'service' within the ADA was involved: In both cases, she found that Mr Dezfouli had not defined the 'services' involved in his complaint. However, in the present case, the services were identified as "strip searching to protect his and other inmates' safety and accommodation providing an appropriate level of facilities." Last, in Dezfouli v Justice Health and anor [2008] NSWADT 99, Deputy President Hennessy found that Rainsford's case cast 'some doubt' on whether Mr Dezfouli would be able to satisfy the Tribunal he had been provided with a service, and in the subsequent appeal to Rainsford's Case, the Full Federal Court in Rainsford v State of Victoria [ 2008] FCAFC 31, said it saw 'some strength in the view that the provision of transport and accommodation, even in a prison, may amount to a service or facility'. 17. In this case, the "service" alleged in order to ground the jurisdictional requirement of provision of "goods and services" under the Act is the provision of an "early shower programme". As noted above, this is a programme which assists both the inmates and the correctional officers in providing a safe shower environment within the facility. 18. In my view there is nothing to show that a service in the sense of the term used in the Act was being provided to the applicant and the decision in Rainsford v The State of Victoria is pointed to in that regard by Ms Singer, both in the Federal Court and full Federal Court. Despite the Full Court's comments which were cited by Judicial Member Layton above, it appears to me that there is real difficulty in identifying a shower schedule as a "service" within the meaning of the Act. The "early shower programme" appears to be an administrative matter rather than a "service" in the usual sense of the term. 19. Further, it seems to me that the applicant would have difficulties in persuading a Tribunal that the conduct alleged was "of a sexual nature". Given the very nature of incarceration, whether under the criminal law or as a forensic patient, it is inconceivable that no such disturbances of otherwise private functions may not occur. Combined with the difficulties in analysing the "early shower programme" as a service, it appears to me that there are real difficulties in this case. 20. The applicant has to show a substantial reason why leave should be granted. In my view he has not done so. He does not have reasonable prospects of success and that is sufficient for refusal of a grant of leave. 21. Accordingly, leave is refused. 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.