Liu v Director General, New South Wales Department of Commerce (EOD) [2007] NSWADTAP 43

Appeal Panel - Internal

CITATION: Liu v Director General, New South Wales Department of Commerce (EOD) [2007] NSWADTAP 43

APPELLANT PARTIES: Liu Fei RESPONDENT Director General, New South Wales Department of Commerce

FILE NUMBER: 079011

HEARING DATES: 14 August 2007

SUBMISSIONS CLOSED: 22 August 2007

DATE OF DECISION: 27 August 2007

BEFORE: Hennessy N - Magistrate (Deputy President)

CATCHWORDS: Leave to appeal against interlocutory decision - prospects of success of appeal - whether substantial injustice if leave not granted

MATTER FOR DECISION: Principal matter

FILE NUMBER UNDER APPEAL: 041075, 041076, 041077

DATE OF DECISION UNDER APPEAL: 02/09/2007

Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Anti-Discrimination Act 1977 Evidence Act 1995

CASES CITED: Xu v Sydney West Area Health [2006] NSWADT 3 Adamopoulos and Another v Olympic Airways SA and Another (1991) 25 NSWLR 75

APPELLANT In person REPRESENTATION: RESPONDENT T Anderson, counsel

ORDERS: Leave to appeal is refused

REASONS FOR DECISION Introduction 1 Mr Lui complains that employees of the Department of Commerce discriminated against him and victimised him when he worked there from 1998 to 2003. He was dismissed in 2003 for breaches of discipline. He says that the discriminatory treatment was on the ground of his race (Chinese) and his disability (mental illness). Mr Lui has a history of suffering from chronic depression and, more recently, has exhibited psychotic symptoms. The President of the Anti-Discrimination Board declined all of his complaints as lacking in substance but referred them to the Tribunal in May 2004 at Mr Lui's request. In the three years since his complaints have been with the Tribunal, Mr Lui has participated in several case conferences and two unsuccessful mediations. He applied to the Tribunal for a person to be appointed as his representative because he said he was incapable of representing himself due to his mental illness. On 14 April 2005 the Tribunal made an order under s 71 of the Administrative Decisions Tribunal Act 1997 (ADT Act) appointing Ms Barbara Ramjan to be his "best interests" representative. Ms Ramjan instructed a barrister, Mr David Patch, to represent her. 2 On 23 December 2005, Ms Ramjan filed Points of Claim which identified only one of the eight items of complaint that the Anti-Discrimination Board had referred to the Tribunal. On 23 December 2005, Mr Lui wrote to the Tribunal saying that he wished to continue with all eight items of complaint. Subsequently, Mr Lui applied to the Tribunal for the representation order to be revoked. On the basis of fresh medical evidence that Mr Lui's mental condition had improved, the Tribunal formed the view that Mr Lui was capable of representing himself and revoked the representation order on 5 May 2006. The Tribunal made further directions for the filing of evidence with which Mr Lui did not comply. He says he cannot do so because of his mental illness. 3 On 9 February 2007, the Tribunal heard a second application from Mr Lui to appoint a representative. The Tribunal refused that application. Mr Lui has appealed to the Appeal Panel against that decision. Because the decision not to appoint a representative is an interlocutory decision, the Appeal Panel must give Mr Lei permission (or leave) before the appeal can continue: ADT Act, s 113(2A). I have decided not to give Mr Lei permission to appeal against the Tribunal's decision. The reasons are set out below. Request for adjournment 4 Mr Lui did not want the leave application to proceed because he was still waiting for a response to his application for legal aid to the Legal Aid Commission. In March 2007, soon after Mr Lui applied for leave to appeal, I agreed to adjourn that application until his application for legal aid had been determined. The matter was set down for hearing on 14 August 2007 to allow plenty of time for that application to be dealt with. Inquiries during the course of the hearing revealed that while Mr Lui had been granted legal aid in relation to his discrimination complaint, his application for legal aid in relation to the appeal had not been separately considered. I refused Mr Lui's application for an adjournment because he had not made any inquiries directly to the Legal Aid Commission about the status of his application despite the fact that he lodged the application in March 2007 and knew that the matter was listed for hearing on 14 August. Furthermore, he had not contacted the Tribunal prior to the hearing date to advise that he had not been notified of the outcome of his application or to apply for an adjournment. Appointment of a representative under ADT Act 5 Section 71(4) of the ADT Act states that: 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. 6 "Incapacitated person" is defined in s 71(7)(b) 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, Tribunal's decision 7 The Tribunal heard Mr Lui's application on 9 February 2007. The Tribunal made it clear to Mr Lui that if a decision was made to appoint a representative, that representative would be Ms Ramjan as she is the person who had previously been appointed and she understands the background to his complaint. Mr Lui said that he did not want Ms Ramjan to be appointed. Despite the fact that Mr Lui tendered fresh medical evidence which expressed the opinion that he was not capable of representing himself, the Tribunal refused his application saying that: Having regard to the previous appointment of Ms Ramjan and the decision taken by her with advice of Mr Patch of counsel that only one of the applicant's eight claims could be prosecuted, it is not appropriate that the applicant be permitted to use the process provided under s 71(1) to endeavour to find a person who could be appointed as his representative who might take a different view from that previously taken by Ms Ramjan and Mr Patch. Principles for granting leave 8 In Xu v Sydney West Area Health [2006] NSWADT 3 at [14], I examined some of the case law relating to the granting of leave against interlocutory decisions and concluded that: 14 ... When hearing applications for leave to appeal from decisions by Federal Magistrates summarily dismissing discrimination complaints, the Federal Court has applied the following principles: (i) generally, an application for leave to appeal from an interlocutory decision will not be allowed unless the party seeking such leave is able to show that a substantial injustice would result if leave were refused and that the decision is attended with sufficient doubt to warrant it being reconsidered by a Full Court: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398–9; (ii) where the interlocutory decision concerns the substantive interests of the parties, as opposed to decisions concerning matters of practice and procedure, there is a greater likelihood that an incorrect decision will cause substantial injustice: Brilliant Digital Entertainment Pty Ltd v Universal Music Australia Pty Ltd [2004] FAFC 270 at [8]; and (iii) to amount to a substantial injustice, the complaint must have some prospect of success including, where relevant, some evidence that at least one of the reasons for the treatment about which he or she complains was a ground of discrimination, such as race: Ugur v NSW Police Service [2005] FCA 48 Emmett J at [19] and [20]; Yo Han Chung v University of Sydney [2002] FCA 106 Spender J at [45]. Application for leave 9 Grounds for requesting leave. No interpreter was present during the Tribunal hearing on 9 February 2007. Mr Lui submitted that he was disadvantaged by the absence of an interpreter because he could not understand everything that was being said and he could not express himself correctly. He said he was not given an adequate opportunity to present his case nor to respond to any of submissions from the Department. He told the Tribunal that he could not follow what was going on, but said that the Tribunal ignored him. Mr Lui's second ground for requesting leave is that the medical evidence before the Tribunal supported his submission that he was not capable of representing himself. He provided a further undated letter from Dr M Phelan, Psychiatry Registrar at St Vincent's Hospital which said that Mr Lui was exhibiting symptoms consistent with a depressive illness with psychotic features and that that those symptoms would impair his ability to represent himself in court. Although that letter is undated, I have assumed that it relates to his visit to hospital following the Tribunal hearing on 9 February 2007. Finally, Mr Lui says he wants all the discrimination and victimisation complaints to be properly presented before the Tribunal. 10 Respondent's reply. The Department's representative did not oppose the granting of leave as it considered that the question of whether Mr Lui should have a person appointed to represent him to be a matter for the Appeal Panel. However, the Department was prepared to take on the role of contradictor and in that capacity made submissions that Mr Lui's mental disability does not necessarily make him an "incapacitated person" within the meaning of that term in the ADT Act. In support of that proposition, the Department's representative pointed to Mr Lui's ability to apply for legal aid, to prepare written and oral submissions as well as to the clinical notes from Sydney Hospital. In addition, the Department's representative submitted that Mr Lui does not necessarily need the services of an interpreter. Substantial injustice and prospects of success of appeal 11 Issue. The question for the Appeal Panel is not whether Mr Lui is an incapacitated person, nor whether a representative should be appointed. The question is whether leave should be granted for him to pursue an appeal against the Tribunal's decision not to appoint such a representative. Essentially the Appeal Panel must decide whether Mr Lui will suffer a substantial injustice if leave is not granted and whether the appeal has some prospects of success. 12 Prospects of success. In my view, the appeal does have some prospects of success, mainly because of the absence of an interpreter. Section 71(6) of the ADT Act provides that: Any person appearing before the Tribunal may use the services of an interpreter unless the person can understand and speak the English language sufficiently to enable the person to understand, and to make an adequate reply to, questions that may be put to the person. 13 There has been no consideration by the Tribunal of this provision but it is consistent with s 30 of the Evidence Act 1995. In Adamopoulos and Another v Olympic Airways SA and Another (1991) 25 NSWLR 75 at 77-78 per Kirby J, the Court of Appeal stressed that it was critical to allow a person to use an interpreter whenever there is any possibility that not to do so would disadvantage that party. In this case Mr Lui told the Tribunal that he felt disadvantaged by not having access to an interpreter. It is arguable that the Tribunal was in breach of s 71(6) by failing to adjourn the hearing to ensure that Mr Lui had access to an interpreter. 14 Substantial injustice. Despite the fact that the appeal has some prospects of success, Mr Lui will not suffer a substantial injustice if leave is refused. That is because he has been granted legal aid in relation to the proceedings before the Tribunal. That means that he will have a representative who will be able to act on his instructions. Although there is evidence that Mr Lui's ability to represent himself is impaired by his illness, there is no evidence that he is unable to give instructions to a representative. In fact, that may suit Mr Lui better than being bound by the views of a "best interest" representative as to the scope of his complaint. Order Leave to appeal refused.