Dezfouli v State of New South Wales (Justice Health) and anor [2008] NSWADT 122

CITATION: Dezfouli v State of New South Wales (Justice Health) and anor [2008] NSWADT 122 This decision has been amended. Please see the end of the decision for a list of the amendments.

DIVISION: Equal Opportunity Division

APPLICANT Saeed Dezfouli

PARTIES: FIRST RESPONDENT State of New South Wales (Justice Health)

SECOND RESPONDENT XXXX

FILE NUMBER: 081014

HEARING DATES: 10 April 2008

SUBMISSIONS CLOSED: 10 April 2008

DATE OF DECISION: 24 April 2008

BEFORE: Hennessy N - Magistrate (Deputy President)

CATCHWORDS: Application for leave to proceed

MATTER FOR DECISION: Preliminary matter

Anti-Discrimination Act 1977 CASES CITED: Disability Discrimination Act 1992 (Cth) Felons (Civil Proceedings) Act 1981

APPLICANT In person REPRESENTATION: FIRST AND SECOND RESPONDENTS G Singh, solicitor

ORDERS: Leave is refused.

REASONS FOR DECISION Introduction 1 Mr Dezfouli has applied to the Tribunal for permission for a complaint of sexual harassment to go ahead. The complaint is against two respondents, the State of New South Wales (Justice Health) and Mr XXXX, an employee of Justice Health. Mr Dezfouli is in custody at Long Bay Hospital having been found not guilty of various offences by reason of mental illness. He alleges that on 21 May 2007, Mr XXXX, an employee of Justice Health, came into the shower room when he was naked to give him some papers. Mr Dezfouli says that the following exchange took place: Mr XXXX: I got the reports for you. Mr Dezfouli: Do you mind, I am naked and taking a shower. Mr XXXX: I just wanted to let you know the report is ready. Mr Dezfouli: Do you understand? I am naked in the shower. Mr XXXX: I will leave it with nurse. 2 Mr Dezfouli says that he was "shocked, embarrassed, undignified, bothered, annoyed and outraged" that Mr XXXX came into the shower room when he was naked. He says that Mr XXXX's eyes went up and down his naked body. According to Mr Dezfouli, another patient was having a shower next to him and when Mr XXXX left, Mr Dezfouli said, "It was very rude of him to come to the showers." Mr Dezfouli said that the other patient said, "Yes." Mr Dezfouli was so distressed by this incident that he had an anxiety attack and was taken by ambulance to Prince of Wales Hospital. According to Mr Dezfouli, Mr XXXX is homosexual. 3 The President of the Anti-Discrimination Board declined the complaint as lacking in substance. When that happens, the applicant must obtain the Tribunal's permission, or leave, before the complaint can proceed: Anti-Discrimination Act 1977 (AD Act), section 96. The application for leave was heard on 10 April 2008. Mr Dezfouli participated by phone. Mr Singh represented the respondents. The material taken into account for the purpose of this decision is the President's Report including the material attached to that report and the oral submissions of Mr Dezfouli and Mr Singh. Preliminary issue 4 Section 4 of the Felons (Civil Proceedings) Act 1981 provides that: A person who is in custody as a result of having been convicted of, or found to have committed, a serious indictable offence may not institute any civil proceedings in any court except by the leave of that court granted on application. 5 If this provision applies to Mr Dezfouli, then the Tribunal's leave is required before he can institute these proceedings: Hall v State of NSW (Department of Corrective Services) [2006] NSWADT 243 (14 August 2006). Mr Dezfouli said that the provision did not apply to him because he has not been convicted of a serious indictable offence. Rather, he had been found not guilty of various offences by reason of mental illness. In Dezfouli v R [2007] NSWCCA 86 (12 April 2007) the Court of Criminal Appeal summarised the verdicts in relation to Mr Dezfouli. The provisions cited relate to the Mental Health (Criminal Procedure) Act 1990: 10 The jury returned verdicts pursuant to section 22(1)(a) that the appellant was not guilty of murder and not guilty of maliciously damage property by fire with intent to endanger human life. Pursuant to section 22(1)(b) the jury found the appellant not guilty on the ground of mental illness of the manslaughter of the deceased and not guilty of maliciously damage property by fire by reason of mental illness. 11 Section 22(2) of the Act provides that a verdict in accordance with sub-section (1)(b) is to be taken to be equivalent for all purposes to a special verdict that an accused person is not guilty by reason of mental illness under section 38 of the Act. 6 The Supreme Court has taken the view that a person who has been found not guilty in accordance with a special verdict, or its equivalent, is not a person to whom section 4 of the Felons (Civil Proceedings) Act 1981applies: Richard Lawrence Maddrell v Public Trustee of New South Wales [1996] NSWSC 333 (5 August 1996) per Simos J at [9] –[11]. Consequently, while the matter is not free from doubt, it appears that Mr Dezfouli does not require leave under the Felons (Civil Proceedings) Act 1981. Approach to leave applications 7 In Xu v Sydney West Area Health Service [2006] NSWADT 3, the Tribunal set out its approach to determining applications for leave under section 96. I adopt those principles in relation to this case, especially the points made 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. 8 In summary, the applicant needs to satisfy the Tribunal that there is a substantial reason for leave to be granted including that the complaint has reasonable prospects of success. Additional relevant factors are whether the subject-matter of the complaint has been dealt with by another body and whether the respondent has taken appropriate steps to remedy or redress the conduct complained of: AD Act , section 92(1). Prospects of success 9 The first question is whether Mr Dezfouli's complaint is so lacking in substance that it has no reasonable prospects of success. In order to make out a complaint of sexual harassment, Mr Dezfouli would have to prove that: a) Justice Health and/or Mr XXXX was providing him with a service; b) in the course of providing those services Mr XXXX engaged in unwelcome conduct; c) that conduct is a sexual advance, a request for sexual favours or other conduct of a sexual nature; d) the conduct is "in relation to" Mr Dezfouli; and e) a reasonable person, having regard to all the circumstances, would have anticipated that Mr Dezfouli would be offended, humiliated or intimidated by that conduct: AD Act, section 22A and section 22F. 10 In order for Justice Health to be vicariously liable for any such breach Mr Dezfouli would also have to prove the matters set out in section 53 of the AD Act . 11 Identification of the service. It is essential when alleging harassment in the provision of services that the services that are being provided are precisely defined: IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 16-17 per Brennan CJ and McHugh J. The service must come within the meaning of "service" in the AD Act. Mr Dezfouli has not defined the service that he was receiving from either of the respondents. The Federal Court has decided that accommodation of prisoners in cells within a prison system is not a service for the purposes of the Disability Discrimination Act 1992 (Cth): Rainsford v State of Victoria & Anor (2007) 242 ALR 128; (2007) EOC 93-468 per Sunberg J at [76] to [79]. On appeal to the Full Federal Court, doubt was expressed about that proposition, but the Court did not need to determine the issue: Rainsford v State of Victoria and anor (unreported) [2008] FCAFC 31. In the absence of any submissions about the nature of the services Mr Dezfouli says are being provided, it is not possible to determine whether a Tribunal would be likely to find that those activities come within the definition of "services" in the AD Act. 12 Unwelcome conduct of sexual nature. Mr Dezfouli said that the conduct was unwelcome. He complained straight away to nursing staff and says that his anxiety attack was a direct result of the incident. The conduct was not a sexual advance or a request for sexual favours. In order to come within the AD Act, it must be "other conduct of a sexual nature". In his complaint to the Tribunal Mr Dezfouli says that Mr XXXX looked him up and down. He elaborated on this at the hearing saying that Mr XXXX was standing at the door about 4 metres away from him and was looking at him in a "gayish" manner. Mr Dezfouli said that he avoids contact with the gay community and would rather stay in his "straight world". 13 When the matter was investigated by Justice Health, Mr XXXX admitted that he came into the shower room with some papers for Mr Dezfouli but denied the he looked him up and down. For the purposes of these proceedings, which are interlocutory, it is appropriate to accept Mr Dezfouli's evidence at its highest. It is apparent that Mr Dezfouli was highly stressed by this incident and that the fact he thinks Mr XXXX is homosexual contributed to his state of mind. While we agree with Mr Dezfouli that the conduct was an invasion of his privacy, it does not fall squarely into the category of conduct of a sexual nature. Mr XXXX had a reason to communicate with Mr Dezfouli, namely to give him a copy of the report. He stood at the door, some 4 metres away, and spoke to him. We accept that Mr XXXX could see Mr Dezfouli standing naked in the shower from that distance and that he looked at him. Even if he had a particular "look" in his eye, that is very weak evidence that the conduct was of a "sexual" nature. He left as soon as it was apparent that Mr Dezfouli did not want him to be there. While it was inappropriate for him to go into the shower room when Mr Dezfouli was naked, the prospects of proving that the conduct was of a sexual nature are not high. 14 In relation to Mr Dezfouli. There is little doubt that the conduct was "in relation to" Mr Dezfouli. 15 Reasonable person test. The final element of sexual harassment is that "a reasonable person would have anticipated" that Mr Dezfouli would be "offended, humiliated or intimidated." Unless the conduct is conduct of a sexual nature, this element of the test does not arise. However, assuming that entering the shower room and looking at Mr Dezfouli naked is conduct of a sexual nature, a reasonable person could well regard that situation as being, at least, humiliating. Other factors relating to leave 16 There are several other circumstances of this case, which are relevant to the question of whether leave should be granted. They are: a) that Mr Dezfouli previously complained of the same conduct to the Health Care Complaints Commission; and b) that as a result, the conduct was investigated by Justice Health and recommendations made resulting in a change to previous practices; and c) that Mr XXXX apologised to Mr Dezfouli for his conduct. 17 A person is not prevented from making a complaint under the AD Act if they have made a complaint in relation to the same facts in another jurisdiction. However, the Tribunal must have regard to the outcome of any such proceedings when dealing with the complaint: AD Act , section 88B. Mr Dezfouli complained to the Health Care Complaints Commission about this incident. Justice Health was advised of that complaint in August 2007 and carried out an investigation. Its conclusion was that Mr XXXX did walk in on Mr Dezfouli in the shower but that an allegation of sexual harassment could not be substantiated. Justice Health also made recommendations that Mr XXXX be advised of strategies to avoid being placed in a similar situation in future. Mr Singh said that Mr XXXX had been counselled about the incident. He apologised to Mr Dezfouli for his conduct the following day. Mr Dezfouli did not accept the apology because he said the damage had been done. 18 Mr Dezfouli says that Justice Health did not carry out an adequate investigation because they did not interview him, the nurses or any other witnesses and did not take into account the effect that the incident had on him. In our view, it was not necessary for the investigation to focus on the effect that the incident had on Mr Dezfouli because it was apparent that the conduct was unwelcome. The real focus of the inquiry was Mr XXXX's conduct. In addition, as none of the nurses or other staff witnessed the incident, it was understandable that they were not questioned. 19 The Health Care Complaints Commission declined to investigate the complaint further, based on the result of the internal investigation. Mr Dezfouli said that nurses have been invading his and other patient's privacy for several years. However, he said that in the last few months nurses and other staff had stopped coming in to the shower rooms. He attributes this change to the fact that he made a complaint to the Anti-Discrimination Board. Conclusion 20 Mr Dezfouli was understandably humiliated when Mr XXXX walked into the shower room when he was naked. However, he has not identified the service that was being provided at the time, nor does he have a strong case that the conduct was of a sexual nature. The incident has been investigated and remedial action taken to ensure that Justice Health employees do not enter the shower room in such circumstances in the future. Mr XXXX has been counselled and has apologised. Mr Dezfouli has expressed satisfaction with the changes that have occurred since he complained. Given that Mr Dezfouli is not seeking damages, it is difficult to identify any further remedy that would be appropriate and available to him if his complaint were substantiated. While the complaint is not so weak as to have no reasonable prospects of success, the shortcomings in the complaint combined with the fact that Justice Health has taken appropriate steps to remedy the situation satisfy me that leave should be refused. Order Leave is refused.