Commissioner of Police v LZ [2008] NSWADT 300

CITATION: Commissioner of Police v LZ [2008] NSWADT 300

DIVISION: General Division

APPLICANT LZ PARTIES: RESPONDENT Commissioner of Police

FILE NUMBER: 063453

HEARING DATES: 16 October 2008

SUBMISSIONS CLOSED: 16 October 2008

DATE OF DECISION: 6 November 2008

BEFORE: Handley R - Deputy President

CATCHWORDS: Representation – incapacitated person – appointment of a representative

Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Freedom of Information Act 1989 Protected Estates Act 1983

LZ v Commissioner of Police, NSW Police [2007] NSWADT 267 Commissioner of Police, NSW Police v LZ (GD) [2008] NSWADTAP 22 EM v Commissioner of Police, NSW Police Service [2002] NSWADT 268 CASES CITED: Fei v Director General, Department of Commerce [2006] NSWADT 165 NZ v NSW Department of Housing [2008] NSWADTAP 67 P v R [2003] NSWSC 819 Jones v Dunkel (1959) 101 CLR 298 St Joseph's Hospital Ltd v Corey [2008] NSWADTAP 4

APPLICANT In person REPRESENTATION: RESPONDENT A Johnson, solicitor

ORDERS: Ms Janina Szyndler is appointed to represent LZ in these proceedings.

REASONS FOR DECISION 1 The Commissioner of Police ('the Commissioner') has requested that the Tribunal appoint a person to represent LZ in her proceedings before the Tribunal on the ground that she is an incapacitated person. Background 2 During the course of a hearing in proceedings before the Tribunal on an application by LZ filed on 22 December 2006 for the review of a decision made by the Commissioner under the Freedom of Information Act 1989 ('the FOI Act'), the Commissioner requested that the Tribunal appoint a person to represent LZ on the ground that she is incapable of managing her own affairs. Neither the Tribunal nor LZ had any foreknowledge that such an application would be made and submissions filed by the Commissioner in support of this request. LZ therefore sought an adjournment of this application to enable her to prepare submissions in reply, to which I agreed. 3 I did, however, proceed to determine the principal matter under consideration on that occasion, namely the Commissioner's application that the proceedings should be dismissed on the ground that they were 'frivolous or vexatious', pursuant to the Tribunal's power of dismissal set out in section 73(5)(h) of the Administrative Decisions Tribunal Act 1997 ('the ADT Act'). I refused the Commissioner's application (LZ v Commissioner of Police, NSW Police [2007] NSWADT 267 (20 November 2007)), a decision that was affirmed on appeal (Commissioner of Police, NSW Police v LZ (GD) [2008] NSWADTAP 22 (18 April 2008)). The history of LZ's application is set out in my decision dated 20 November 2007. 4 On 22 January 2008, I conducted a directions hearing with the parties to discuss a timetable for the filing and service of evidence and submissions on the question of whether a representative should be appointed for LZ. Both parties indicated that they were likely to seek further psychiatric evidence on this question. LZ said that she would approach Legal Aid to ascertain whether they would pay for a psychiatric report for her, noting that she was not prepared to see a psychiatrist paid for by the Commissioner. 5 A further directions hearing was held on 22 April 2008, the purpose of which was to enable the parties to inform me of progress in the matter and whether they had obtained or intended to obtain fresh psychiatric evidence. LZ stated that she had arranged appointments with two psychiatrists, one on the following day and the other before the end of April. She was not prepared to name those psychiatrists. Ms Johnson, for the Commissioner, said that she had written to LZ on 11 April 2008 requesting that LZ undergo a psychiatric examination at the expense of the Commissioner, for the purpose of obtaining objective psychiatric evidence as to whether LZ was capable of representing herself. Ms Johnson named three psychiatrists, for each of whom she attached a curriculum vitae, and asked LZ to select one. Ms Johnson asked LZ to notify her if she was willing to attend one of the psychiatrists so that an appointment could be arranged. 6 At the directions hearing on 22 April 2008, LZ said she would not agree to be examined by any psychiatrist nominated by the Commissioner. After some discussion, it was agreed that the Tribunal would prepare a short letter from the Registrar for LZ to hand to the two psychiatrists with whom she had arranged appointments. This letter stated: "In preparing your report would you please consider the decision of the Tribunal in the attached matter, LZ v Commissioner of Police, dated 20 November 2007 relating to ADT File no 063453. This decision provides the background against which [LZ] is seeking a psychiatric report. In preparing your report would you also please list all the documentary evidence provided to you by [LZ] so that both parties and the Tribunal are fully informed of the basis on which you made your assessment." I asked LZ to provide copies of the psychiatric reports to the Tribunal and the Commissioner, and arranged another directions hearing for 17 June 2008. 7 On 17 June 2008, LZ informed me that she would not be providing reports from the two psychiatrists. She said she had seen the two psychiatrists but they did not have the necessary information to enable them to prepare a suitable report. After some considerable discussion as to how the matter could be progressed, I made further directions requesting that LZ file and serve any psychiatric evidence upon which she proposed to rely, and for LZ and the Commissioner to file submissions on the issue of the appointment of a representative. LZ filed no further evidence or submissions. The Commissioner filed submissions on 10 October 2008. The Law 8 The power to appoint a representative is set out in section 71(4) of the ADT Act, which provides relevantly: (4) 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. 9 The term 'incapacitated party' is defined in section 71(7) to include: (b) 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, ... 10 The Tribunal's Practice Note Number 15 sets out the procedure to be followed by the Tribunal when appointing a representative for an incapacitated person under section 71(4), together with guidelines as to the role of the appointed representative. An order appointing a representative can be made on the application of a party or on the Tribunal's own motion. A decision as to 'incapacity' is one the Tribunal "must make relying on objective evidence" (Practice Note, paragraph 2.4), especially medical evidence. However, the Tribunal may also have regard to its own observations of the person's behaviour: EM v Commissioner of Police, NSW Police Service [2002] NSWADT 268; Fei v Director General, Department of Commerce [2006] NSWADT 165; NZ v NSW Department of Housing [2008] NSWADTAP 67. 11 The role of the person appointed to represent a party 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, paragraph 2.7). Submissions 12 Ms Johnson noted that LZ had refused to attend one of several psychiatrists proposed by the Commissioner, for whose report the Commissioner had offered to pay, and despite having said she would obtain her own psychiatric report, she had not done so. Nevertheless, the Tribunal was not without evidence of incapacity. On 11 September 2003, the Supreme Court found LZ was incapable of managing her own affairs and ordered that her estate be subject to management under the Protected Estates Act 1983: P v R [2003] NSWSC 819. 13 In those proceedings, Barrett J found LZ to be "incapable of managing her affairs", including District Court proceedings brought by LZ, and ordered that her estate be subject to management under the Protected Estates Act 1983, an order that is still in effect. Ms Johnson contended that although His Honour's findings date from 2003, they apply with equal force today given the material similarities between LZ's conduct referred to in those proceedings and her conduct in the proceedings currently before the Tribunal: for example, LZ's persistent requests for adjournments based on ill health, her failure to file written submissions, and her belief that her neighbour is engaged in systematic harassment of her and regularly illegally enters her house and removes papers concerning legal proceedings in which LZ is engaged. There is nothing to indicate that LZ's situation has changed since 2003 and it is open to the Tribunal to infer that the medical conditions identified by Barrett J in 2003 persist today. 14 Ms Johnson noted that the unedited set of relevant documents falling within LZ's FOI application, supplied to the Tribunal in confidence, make plain that the NSW Police believe there is no substance to LZ's complaints that her property is regularly burgled by her neighbour. Further, LZ's failure to provide her own psychiatric evidence and/or attend a psychiatrist nominated by the Commissioner allow the Tribunal to conclude that such reports would not be favourable to LZ. The Tribunal may infer that any fresh psychiatric evidence would tend to show LZ is partially or totally incapable of representing herself in these proceedings and that the psychiatric assessments referred to by Barrett J are still applicable: Jones v Dunkel (1959) 101 CLR 298, recently discussed in St Joseph's Hospital Ltd v Corey [2008] NSWADTAP 4, at [78]. Finally, the Tribunal can and should rely on its own observations of LZ in these proceedings, in particular, that she is continually distracted by notions of corruption on the part of the Protective Commissioner, the Police, the Supreme Court and the Tribunal. She is unable to focus on the key issues to progress her application and has failed to file any documents in support of her application despite the many orders of the Tribunal. 15 In conclusion, Ms Johnson submitted that there is abundant evidence that LZ is incapable of representing herself and that a representative should be appointed to conduct these proceedings on her behalf. 16 LZ agreed that she tends to repeat herself all the time and that she suffers from medical conditions. She spoke at some length about her neighbour entering her house illegally, causing damage to her property and removing documents. LZ said she is planning to apply for an Apprehended Violence Order (AVO) against her. LZ also spoke at some length about the alleged corruption of those involved in legal proceedings in which LZ has been engaged including in the proceedings in the Supreme Court before Barrett J. 17 With regard to obtaining psychiatric reports, LZ said she is having problems with Legal Aid. She has about 20 cases on foot in which she is supposed to get advice from Legal Aid. LZ contended that she has filed documents in these proceedings – those filed on 18 June 2007 and 30 October 2007. LZ said she does not lack capacity but she does need legal representation. Discussion 18 As noted above, the Tribunal does not have the benefit of fresh medical evidence as to LZ's mental state because she has declined to provide such evidence or to be examined by any psychiatrist proposed by the Commissioner. Ms Johnson referred me to the decision of Barrett J in P v R [2003] NSWSC 819. His Honour discussed the medical evidence before him, including that of four psychiatrists who had prepared written reports and who gave oral evidence in the proceedings. His findings based on that evidence, at [55] to [56], were as follows: "55. There are, of course, differences in the medical opinions to the extent that, while Dr Bell considers the defendant psychotic, Dr Lewin's diagnosis emphasized a long-standing personality disorder, Dr Clark referred in the witness box to the defendant's obsessiveness and abnormal pre-occupations by which she was harming herself and Dr Russell expressed lack of confidence in the defendant's ability to run her case because of her ongoing difficulties in trusting people and co-operating, collaborating and compromising. It is nevertheless clear from the course of the questioning of all four psychiatrists by the defendant in court that all consider her to be very significantly impaired in her social functioning and in her ability to look after herself. 56. On the whole, the medical evidence leads me to a conclusion that the defendant is suffering from a clinical condition that affects adversely her ability to make rational decisions about where her own best interests lie. She is preoccupied with the various grievances to such an extent that they occupy center stage in her life and absorb virtually all her energies. The question for decision is whether, in the light of the effects of that condition and the remainder of the evidence, the defendant must be said to be incapable of dealing, in a reasonably competent fashion, with the ordinary routine affairs of life and that, by reason of such lack of competence, she may be disadvantaged in the conduct of those affairs or her money or property may be dissipated." 19 There is no evidence to indicate that there has been any change in LZ's mental state. Indeed, as Ms Johnson has pointed out, her conduct in these proceedings, especially in not complying with directions for the filing of submissions and evidence and her regular claims that she was unable to do so because her neighbour had stolen her documents, bears a close similarity to that described by Barrett J in his decision. The documents identified by the Commissioner as relevant to LZ's FOI application and provided to the Tribunal in their unedited form, indicate that the Police have dealt with a large number of incidents involving complaints made by LZ over many years, many in respect of her neighbour, and that LZ has made a significant number of complaints against the Police. The Police records indicate that the Police consider there is no substance to LZ's allegations about her neighbour entering LZ's property and stealing her documents. 20 My own observation of LZ's conduct in these proceedings leads me to conclude that she has significant difficulty in focusing on the relevant issues and, as Ms Johnson has commented, she is continually distracted by what she perceives to be corrupt conduct by various public officials and judicial officers who, she claims, have conspired to undermine her position. There is no evidence before me to substantiate these allegations to which LZ constantly refers. LZ's failure to comply with directions – detailed above - has also made it difficult to progress these proceedings. 21 In my view, the evidence supports a finding that LZ is incapable of representing herself in proceedings before the Tribunal because of mental incapacity. I note she has made multiple applications to the Tribunal, and also her comment in making oral submissions that, at present, she has about 20 cases on foot – presumably including applications currently before the Tribunal - in which she is seeking advice from Legal Aid. I am satisfied that a representative should be appointed to represent LZ, who will act in her best interests, objectively assessing her grievances and identifying relevant facts and issues, so that, where appropriate, an application can be pursued. Conversely, where an application is without substance and appears doomed to fail, the representative will be able to withdraw the application. 22 Thus, in my view, LZ falls within the definition of an 'incapacitated party' in section 71(7) of the ADT Act. I therefore exercise the Tribunal's power under section 71(4) to appoint a person to represent her in proceedings before the Tribunal. An instrument of appointment has been prepared and will be forwarded to the parties.