CITATION: Fei v Director General, Department of Commerce [2006] NSWADT 165 DIVISION: Equal Opportunity Division APPLICANT PARTIES: Liu Fei RESPONDENT Director General, Department of Commerce FILE NUMBER: 041075; 041076; 041077 HEARING DATES: 5/05/2006 SUBMISSIONS CLOSED: 05/05/2006 EXTEMPORE DECISION DATE: 05/05/2006 DATE OF DECISION: 06/02/2006 BEFORE: Ireland G - Judicial Member; Weule B - Non Judicial Member; Quayle C - Non Judicial Member CATCHWORDS: Representative Appointment - repeal of order MATTER FOR DECISION: Preliminary matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Anti-Discrimination Act 1977 Interpretation Act 1987 APPLICANT D Patch of counsel (instructed by B Ramjan, as representative appointed by the Tribunal) - for the purpose of proceedings generally REPRESENTATION: RESPONDENT T Anderson of counsel ORDERS: 1. The Tribunal orders, that pursuant to section 43(2) of the Interpretation Act 1987, the order made by the Tribunal on 14 April 2005 appointing Ms Barbara Ramjan as representative of the applicant for the purposes of these proceedings, be repealed effectively from 4.00pm on 5 May 2006; 2. That the hearing of the complaints made by the applicant against the respondent proceed before the Tribunal, with the applicant representing himself or by such person as the applicant may nominate provided in the case of a nominee that the approval of the Tribunal to that representation be first obtained; 3. That prior to setting down dates for a hearing of the complaints before the Tribunal, that a case conference be held to determine the best manner of managing the preparation of the case for a hearing before the Tribunal; 4. That the case conference be held at 10.00am on 12 July 2006; 5. That the applicant is directed to consider the note, prepared by the Judicial Member on 24 February 2005 relating to "jurisdictional issues" and to advise the Tribunal at the case conference if he agrees that the items of complaint as stated in that document are acceptable to him to go forward as his points of claim; 6. The Tribunal directs that the applicant complete, in his own handwriting if necessary, the narrative document filed by him in the Tribunal on 16 February 2005. The completed document to be filed and served by the applicant no later than 7 July 2006 REASONS FOR DECISION BACKGROUND 1 On 14 April 2005, the Tribunal, on the application of the applicant, made an order (representative order) pursuant to section 71(1) of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act). The representative order appointed Ms Barbara Ramjan as the representative of the applicant in the future proceedings before the Tribunal in relation to the complaints made by the applicant against the respondent under the provisions of the Anti-Discrimination Act 1977 (the Act). The proceedings in respect of which Ms Ramjan was appointed as representative of the applicant, relate to the series of complaints made by the applicant to the Anti-Discrimination Board (ADB) which have been referred by the Board to the Tribunal for the purpose of conducting an enquiry under the Act. The Tribunal had identified, as a result of a number of case conferences conducted with the applicant and representatives of the respondent, a total of eight separate items of complaint. At these case conferences, the applicant represented himself without the assistance of legal representation although on most occasions the applicant required the assistance of an interpreter. The applicant also had an interpreter assist him on the two days of the hearing of this application, that is, on 26 April 2006 and on 5 May 2006. 2 On 23 December 2005, Ms Ramjan filed with the Tribunal, on behalf of the applicant, points of claim which related to only one of the items of complaint made by the applicant to the Anti-Discrimination Board. Later, on 23 December 2005, the applicant, personally, filed with the Tribunal a letter which indicated that the applicant wished to continue with each of the eight items of complaint referred to the Tribunal by the ADB. The applicant informed the Tribunal that he required further time to complete a narrative document which he filed on 16 February 2005 in order to cover each of the eight items of complaint that he had made to the Board. 3 In this application, no explanation was given to the Tribunal by the applicant or by Mr Patch as to the reason why the document filed on behalf of the applicant on 23 December 2005 related to only one of the eight items of complaint originally made by the applicant. The applicant stressed to the Tribunal that it was his wish at the hearing of his complaints before the Tribunal to present each of the eight items of complaint as matters for which he was entitled to redress under the Act. The eight items of complaint relate to claims of unlawful discrimination by the respondent against the applicant either on the ground of race or on the ground of disability. The disability alleged by the applicant relates to claims that at the time of the alleged unlawful discrimination, the applicant suffered from mental disorders. 4 On 14 April 2005, in making the order for the appointment of Ms Ramjan as the representative of the applicant, the Tribunal delivered its reasons ex tempore. In its reasons, the Tribunal referred to its reliance on medical reports from Dr Kuan Soon, a general medical practitioner who had examined the applicant on several occasions and especially on a report from a consulting psychiatrist, Dr S K Law, dated 1 April 2005. The Tribunal also relied on the observations of the Judicial Member of the Tribunal who had observed the difficulties experienced by the applicant at case conferences where the applicant had difficulties in concentration and difficulties in understanding the requirements on him in preparing points of claim and written witness statements. In its decision, the Tribunal expressed its conclusion that based on the medical evidence and the observations of the Tribunal, that the applicant was a person who was incapable of representing himself before the Tribunal because he was a person who was psychologically disabled. He was a person who came within the description of an incapacitated person in sub-section 7(2)(b) of section 71 of the Tribunal Act. In coming to that conclusion, the Tribunal had relied in particular on the description by Dr Law of the condition of the applicant as suffering from chronic depression, and because of the side effects of taking the drug Citramil, which rendered the applicant's concentration impaired. Dr Law considered that the applicant would be impaired in making representation for himself in hearings in a court of law. Dr Law recommended that the Tribunal appoint a person to represent the applicant in the hearings. 5 In its decision the Tribunal emphasised that it had stressed to the applicant that a consequence of the appointment of a representative, in acting in the applicant's best interests, the representative may take decisions which would not necessarily coincide with what the applicant considered to be the appropriate decision to be taken and that the applicant would be bound by decisions taken by the representative about the future conduct and course of the proceedings which might be different to the wishes of the applicant. The Tribunal stated "the applicant has satisfied the Tribunal that he understands those effects of the appointment and although in some degree reluctant about the matter, has assured the Tribunal that he would accept the decision of the representative …" 6 Although not stressed either by the applicant or by Mr Patch, it would appear to the Tribunal from the material before it on this application that such a conflict has arisen in relation to the presentation at a hearing of only one of a total of eight items of complaint made by the applicant to the Board. APPLICATION TO REPEAL ORDER 7 By agreement with the parties, the Tribunal had set aside ten days for the hearing of the applicant's complaints, commencing on 26 April 2006. On that day and before the hearing commenced, the applicant informed the Tribunal that his medical condition had improved and that he considered he was now capable of representing himself in further proceedings before the Tribunal. He stated that he had consulted Dr Law on 1 December 2005 and that Dr Law would support an application to allow the applicant to continue the proceedings without a representative. 8 In considering the application by the respondent for an adjournment, the Tribunal expressed doubt that it had power to repeal or revoke an order made under section 71 of the Tribunal Act. That Act contains no provision providing for the revocation or repeal of an order made under that section. If the applicant was to be allowed to continue the proceedings without a representative, it would be necessary, in the view of the Tribunal, that the order made on 14 April 2005 be repealed. 9 Counsel for the respondent referred the Tribunal to the provisions of section 43 of the Interpretation Act 1987 (the Interpretation Act) which is in the following terms: ' 43 Implied power to amend or repeal statutory rules and orders (1) If an Act confers a power on any person or body to make a statutory rule, the power includes power to amend or repeal any statutory rule made in the exercise of that power. (2) If an Act or statutory rule confers a power on any person or body to make an order (whether or not the order must be in writing), the power includes power to amend or repeal any order made in the exercise of that power. (3) If the power of a person or body to make a statutory rule or order is exercisable only on the recommendation, or with the approval or consent, of some other person or body, the power to amend or repeal a statutory rule or order made in the exercise of that power is exercisable only on the recommendation, or with the approval or consent, of that other person or body.' 10 Sub-section 2 of section 43 of the Interpretation Act, when read literally, is in sufficiently broad terms to encompass an order made by the Tribunal under the Tribunal Act. There is, however, a question as to whether section 43(2) does not apply to an order made by a court or tribunal as it is not a body appointed under an act or statutory rule to make an order. The term "body" is not defined. When regard is had to the definition of statutory rule in section 21A of the Interpretation Act and also to the provisions of section 78 of that Act which relates to rules of court, some support can be gained for the argument that those provisions indicate that the powers of amending a statutory rule contained in sub-section 1 of section 43, operate only in relation to statutory rules made by a subservient body but not to rules made by a court or tribunal as such. It may be argued that sub-section 2 of the section 43, when it relates to the repeal of an order of a body should also be constrained in its application in a similar manner. 11 On the other hand, section 79 of the Interpretation Act which relates to the authority to administer oaths by any person or body, is not constrained by an application to a subservient body and, within its terms, could readily operate to refer to the authority of courts and tribunals to administer oaths in the conduct of hearings. 12 In considering this question of the power of the Tribunal to repeal an order made under the Tribunal Act, in principle there seems no good reason for the Tribunal not to have power to repeal an order, especially an order under section 71, where the circumstances have sufficiently altered such that, in the case of an incapacitated person, the incapacity has ceased and would no longer prevent the person representing him or herself before the Tribunal. It is the view of the Tribunal that sub-section 2 of section 43 of the Interpretation Act should be read such that it would enable the Tribunal to have power to revoke an order made under section 71 of the Tribunal Act. That sub-section should not be read in a constraining way but rather full effect should be given to the meaning of the words in the sub-section. The Tribunal came to the conclusion that the order made by the Tribunal on 14 April 2005, by applying sub-section 2 of section 43 of the Interpretation Act, could be repealed if the applicant could satisfy the Tribunal that he had regained the capacity to overcome the impairment which previously had been certified as preventing him from adequately representing himself in the proceedings. The Tribunal accordingly granted the applicant an adjournment to enable him to obtain medical evidence to support his application for the repeal of the order. 13 On the resumption of the application for the repeal of the order, on 5 May 2006, the applicant exhibited before the Tribunal, without objection by the respondent's counsel, a certificate of Dr S K Law dated 28 April 2006. Mr Patch informed the Tribunal that because of the nature of the application by the applicant, he and Ms Ramjan did not wish to make any representations to the Tribunal and although he did not withdraw from the matter before the Tribunal, Mr Patch did not make any representations to the Tribunal concerning the application. Counsel for the respondent stated that she wished to examine Dr Law in relation to his written report. After hearing the evidence from Dr Law which was given by a telephone conferencing system in the Tribunal room, counsel for the respondent advised the Tribunal that the respondent did not oppose the application. THE LATEST MEDICAL EVIDENCE 14 The medical evidence before the Tribunal on this application consisted of the written report of Dr S K Law, consulting psychiatrist, dated 28 April 2006 and the oral evidence sworn by Dr Law before the Tribunal by way of a telephone conference on 5 May 2006. 15 In his written report Dr Law referred to his consultations with the applicant on 1 December 2005 and on 27 April 2006. He concluded his report in these terms: 'Mr Liu's mental condition has indeed made a significant improvement in the past few months, in that he has become much less depressed and his psychotic features have been largely under control, although on rare occasions, he seems to see the face of Ms Ramser, which symptom appears to be either a visual hallucination or a flashback. He knows it is not a real experience, and it is just a psychotic phenomenon. He has gained insight into his mental illness and he has been and will be going to be compliant with his use of anti-depressants and anti-psychotic medications. He has no obvious formal thought disorder, as far as I can ascertain. He no longer needs the assistance of a lay person in his appearance at the Administrative Decisions Tribunal's hearing now'. 16 Counsel for the respondent examined Dr Law on his reports. In response Dr Law expressed his opinion that the applicant's chronic depression was now better and he described his current condition as schizophrenia affective disorder. He stated that this condition showed some symptoms of schizophrenia and also mood symptoms. Dr Law further stated that he was now confident that the applicant could proceed on his own in the proceedings before the Tribunal and that there was no need for the applicant to continue to be assisted before the Tribunal. He considered that the applicant did not show symptoms of post traumatic stress disorder, a condition attributed to him by his general medical practitioner, Dr Kuan Soon, who had provided to the Tribunal a report to that effect on the hearing of the original application on 14 April 2005. 17 On the question of the applicant's impaired ability to concentrate, Dr Law stated that provided the applicant maintained his prescribed dosage of medication, his revised diagnosis was that although he might deteriorate under the stress of representing himself in the proceedings, on balance the applicant will be able to maintain his representation to the Tribunal. DECISION OF THE TRIBUNAL 18 It is the view of the Tribunal that the status of the applicant's mental incapacity has materially altered since 14 April 2005. The improvement in his condition has resulted in him no longer suffering chronic depression. Dr Law now considers that his current diagnosis of the applicant's condition as schizophrenia affective disorder does not impede his ability to properly represent himself in the proceedings before the Tribunal and that his power of concentration has returned. Provided the applicant maintains his medication, Dr Law considers that his power of concentration will be maintained. 19 As the applicant wishes to resume the conduct of his own representation and as his application was not opposed, the Tribunal considers that this application should be granted. 20 The Tribunal concludes that the mental incapacity of the applicant has ceased and that it is in the best interests of the applicant that he be allowed to resume the conduct of his own representation to the Tribunal. The applicant wishes to resume his own conduct of representation to the Tribunal. As his application to repeal the order of 14 April 2005 is not opposed, either by the respondent or Ms Ramjan, and having regard to the desire of the applicant that he be able to pursue before the Tribunal each of the eight items of complaint and not be confined to the one item of complaint in the points of claim filed with the Tribunal on 23 December 2005, the Tribunal considers that it is appropriate that the order of 14 April 2005, be repealed. ORDERS OF THE TRIBUNAL 1. The Tribunal orders, that pursuant to section 43(2) of the Interpretation Act 1987, the order made by the Tribunal on 14 April 2005 appointing Ms Barbara Ramjan as representative of the applicant for the purposes of these proceedings, be repealed effectively from 4.00pm on 5 May 2006. 2. That the hearing of the complaints made by the applicant against the respondent proceed before the Tribunal, with the applicant representing himself or by such person as the applicant may nominate provided in the case of a nominee that the approval of the Tribunal to that representation be first obtained. 3. That prior to setting down dates for a hearing of the complaints before the Tribunal, that a case conference be held to determine the best manner of managing the preparation of the case for a hearing before the Tribunal. 4. That the case conference be held at 10.00am on 12 July 2006. 5. That the applicant is directed to consider the note, prepared by the Judicial Member on 24 February 2005 relating to "jurisdictional issues" and to advise the Tribunal at the case conference if he agrees that the items of complaint as stated in that document are acceptable to him to go forward as his points of claim. 6. The Tribunal directs that the applicant complete, in his own handwriting if necessary, the narrative document filed by him in the Tribunal on 16 February 2005. The completed document to be filed and served by the applicant no later than 7 July 2006. 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.