EM -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 268

CITATION: EM -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 268 DIVISION: Equal Opportunity Division APPLICANT PARTIES: EM RESPONDENT Commissioner of Police, New South Wales Police Service FILE NUMBER: 023020 HEARING DATES: 04/11/2002 SUBMISSIONS CLOSED: 11/04/2002 DATE OF DECISION: 12/17/2002

BEFORE: Rees N - Judicial Member; McDonald O - Member; Nemeth de Bikal L - Member APPLICATION: incapacitated person - appointed by Tribunal of reprsentitive MATTER FOR DECISION: Preliminary matter Guardianhip Act 1987 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Supreme Court Rules 1970 CASES CITED: Commissioner of Police v The Estate of Edward John Russell [2002] NSWCA 272 APPLICANT REPRESENTATION: In person RESPONDENT E Brus, barrister ORDERS: 1. Ms Barbara Ramjan be appoited pursuant to s 71(4) of the Administrative Decisions Tribunal Act 1997 to represent the applicant in these proceedings.

Introduction 1 On 17 May 2000 the applicant, Mr EM, lodged a complaint of discrimination on the ground of disability against the NSW Police Service with the President of the Anti-Discrimination Board (the President). In his complaint the applicant referred to an incident that occurred at Padstow on 13 May 1999 during which he alleges he was attacked by a number of unnamed police officers. The applicant claimed that his treatment by police officers on that day contravened section 49M of the Anti-Discrimination Act 1977 (the Act), which deals with discrimination on the ground of disability in the provision of goods and services. 2 On 27 May 2002 the President referred the complaint to the Tribunal. Thereafter, case conferences were conducted on 29 July 2002, 23 September 2002 and 22 October 2002. On 4 November 2002 the respondent applied to the Tribunal for an order pursuant to s 71(4) of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) that a person be appointed to represent the applicant in these proceedings because it was claimed that he is an "incapacitated person", as defined in s 71(7) of that Act. Ms Brus, of counsel, appeared for the respondent at the hearing of this application. The applicant was not legally represented. 3 Despite considerable effort by the Tribunal's registry staff it was not possible to secure legal aid or pro bono legal assistance for the applicant. At his request the applicant participated in the hearing on 4 November 2002 by telephone as he indicated to the Tribunal that he would become distressed if he were to appear in person. The applicant did not oppose the respondent's application that a person be appointed to represent him. In view of the personally sensitive nature of the evidence tendered in support of this application, the applicant's lack of legal assistance and our finding that the applicant has a mental disability which renders him incapable of conducting his own case, we have decided not to identify him in this document. Whether any on-going orders should be made pursuant to s 75 of the Tribunal Act, which permits us to order that the applicant not be identified in any publications, is a matter for the parties to consider as this case progresses. 4 Another issue which awaits resolution in this case is the proper identity of the respondent. The applicant complained to the President about his treatment by "the New South Wales Police Service". As Spigelman CJ indicated recently in Commissioner of Police v The Estate of Edward John Russell [2002] NSWCA 272 at para 35, the "Police Service of New South Wales" is not a legal entity. Thus, it appears that the "Police Service" is not capable of being the respondent in these proceedings. In his report to the Tribunal the President identified the respondent as the "State of NSW". No doubt this step was taken because s 5 of the Crown Proceedings Act 1988 provides that legal proceedings may be taken against the Crown under the title the "State of New South Wales". Ms Brus submitted that the State of New South Wales was the proper respondent. 5 The decision of the Court of Appeal in Commissioner of Police v the Estate of Edward John Russell appears to indicate, however, that the Commissioner of Police, rather than the State of New South Wales, is the proper respondent in these proceedings. It does not appear to us to be necessary to resolve this issue at this stage. Once the parties have had an opportunity to consider the Court of Appeal's decision in Russell the Tribunal can determine the question of the proper identity of the respondent in the event that the parties are unable to reach agreement. The preliminary issue 6 The respondent tendered two medical reports in support of its application that the Tribunal exercise the power granted by s 71(4) of the Tribunal Act by appointing a person to represent the applicant in these proceedings. In order to exercise this power it is necessary for the Tribunal to determine that the applicant is an "incapacitated person". That term is defined in s 71(7) of the Tribunal Act. 7 The medical reports were provided by Dr Thomas Clark, a forensic psychiatrist, and Dr Ben Balzer, a general practitioner. The applicant had filed both reports with the Tribunal after he was notified that the respondent had issued summonses to some medical practitioners. Both reports took the form of letters addressed to lawyers working with the Disability Discrimination Legal Centre. The applicant did not object to the Tribunal considering these reports when determining the respondent's application that a person be appointed to represent him. 8 In his report, dated 26 August 2002, Dr Balzer indicated that he had been treating the applicant since 1992. He stated that the applicant "is in quite poor physical health, having angina pectoris, severe peripheral vascular disease and is chronically underweight". Dr Balzer made the following observations about the applicant's mental state: Mr EM suffers from a chronic psychiatric disorder and tells me that he sees a Dr Clark. I have not received any correspondence from Dr Clark for some years, but would not expect to if he were seen in a Community Health Centre. His disorder is hard to label, but he exhibits symptoms of anxiety, persecution, ruminations, and an obsession with government departments. 9 In his report, dated 16 September 2002, Dr Clark stated that he has seen the applicant on many occasions following a referral by his general practitioner. His diagnosis is that the applicant "has an Organic Brain Syndrome, which is founded upon a cerebral vascular accident he suffered many years ago". Dr Clark goes on to state that the applicant "had a previous paranoid character but is now suffering a well-defined delusional disorder". Additional relevant portions of Dr Clark's report are as follows: Mr EM has been attending the clinic here since 1994 and has a longstanding problem with his brain. He developed a condition known as hydrocephalus, colloquially known as "water on the brain". This is normally a progressive condition where the cerebro-spinal fluid cannot circulate and this causes an internal rise in pressure with widespread cerebral degeneration. This progression can be halted by installing a valve or shunt in the brain. This indeed has been installed by a neurosurgeon... He is presently still overactive, interrupts people and is unusually intrusive socially. He has a persistence with his over-inclusiveness, such that he will pursue a topic or idea at inordinate length... This over-activity seems to be an aspect of his agitation rather than a physiological cause and probably reflects his brain damage. His speech is intense and he has a garrulousness and an inability to keep off the subject. He has to exhaust everything he talks about to the ultimate degree, that is to say, he is pressurized in a single minded way. 10 In his appearances before the Tribunal the applicant has exhibited the behaviours described in Dr Clark's report. He has rendered it virtually impossible for there to be any meaningful exchanges between the Tribunal and the parties by constantly interrupting anyone who speaks. The applicant has not been able to remain silent whenever he has been asked to do so in order to permit the legal representatives for the respondent to address the Tribunal. He has been unable to stick to the point when asked simple questions by the Tribunal, such as whether he would be able to provide further details of his complaint and prepare statements of any witnesses who would support his claims. In view of the provisions of s 73(2) of the Tribunal Act, which provides that the Tribunal is not bound by the rules of evidence and may take into consideration any matters it thinks fit, we also consider it appropriate to note that the Tribunal has been informed by registry staff that the applicant has been telephoning the registry so persistently that he has been requested by the Registrar to limit the number of calls he makes. 11 Section 71of the Tribunal Act deals with the representation of parties in proceedings before the Tribunal. Sub-sections (1), (4) and (7) of section 71 are relevant in this case. They state: (1) A party to proceedings before the Tribunal may: (a) appear without representation, or (b) be represented by an agent, or (c) if the party is an incapacitated person - be represented by such other person as may be appointed by the Tribunal under subsection (4)... (4) If it appears to the Tribunal that a party is an incapacitated person, the Tribunal may appoint any other person it thinks fit to represent the party... (7) In this section: incapacitated person means: (a) a minor, or (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, or (c) any other person of a class prescribed by the regulations for the purposes of this paragraph. 12 On the basis of the evidence before the Tribunal, particularly the reports of Dr Balzer and Dr Clark, we are satisfied that the applicant is an incapacitated person and that we should appoint a person to represent him in these proceedings. It is clearly paragraph (b) of the definition of "incapacitated person" in s 71(7) which is relevant in this case. No regulations have been made pursuant to paragraph (c). 13 In order to determine that the applicant is an "incapacitated person", as defined in paragraph (b) of the statutory definition, it is necessary for the Tribunal to find two things: first, that he is totally or partially incapable of representing himself in these proceedings and, secondly, that this incapacity has occurred as a result of at least one of the causes or reasons set out in the definition. 14 The behaviours recorded by Dr Clark, together with our own observations, lead us to conclude that the applicant is totally incapable of representing himself in these proceedings because it is likely that he would conduct himself in such a fashion as to render it impossible for the Tribunal to conduct a fair hearing. One of the rules of natural justice which must be observed by the Tribunal (see, s 73(2) of the Tribunal Act) is the 'hearing rule', which requires us to ensure that the respondent has adequate notice of the claims made against it. We are satisfied that the applicant would be unable to provide sufficient details of his complaint to permit the respondent to fully comprehend it and to determine what evidence, if any, should be lead in response to his claims. Further, because the applicant is so agitated and, to use the words of Dr Clark, "pressurized in a single minded way", we believe that it would not be possible for him to remain silent for long enough for the Tribunal to conduct anything which even resembled a hearing. In view of the evidence concerning the applicant's mental state it would be inappropriate for the Tribunal to seek to use the contempt provisions in the Tribunal Act (see, in particular, s 131(e) and (f)) in order to regulate the applicant's behaviour. 15 We are satisfied that the applicant is totally incapable of representing himself in these proceedings for at least two of the reasons set out in paragraph (b) of the definition of an "incapacitated person" in s 71(7) of the Tribunal Act. The evidence leads us to conclude that the applicant is "psychologically disabled" and that he is "a mentally incapacitated person". Whilst the term "psychologically disabled" is not commonly used in legislation, or in clinical practice, it does not have to be exhaustively defined in this case for Dr Clark's diagnoses of "organic brain syndrome" and "delusional disorder" clearly fall within that concept. It is also apparent from the evidence in this case that the applicant is a "mentally incapacitated person". The identity of the applicant's representative 16 Section 71(4) of the Tribunal Act permits the Tribunal to appoint any person it thinks fit to represent the applicant after finding that he is an "incapacitated person". In choosing a person to fulfil the role of a s 71(4) representative it is necessary to characterise the position. Whilst s 71(4) states that the role is to represent the incapacitated person, we do not believe that the role is akin to that of a legal practitioner who represents a person in legal proceedings acting on the basis of that person's instructions. A consideration of s 71 as a whole leads to the conclusion that the role is similar to that of a tutor or guardian in civil proceedings in the courts. Section 71(1) refers to three means by which a party may participate in proceedings before the Tribunal: in person, by an agent (e.g. a legal practitioner) or, if incapacitated, by a person appointed by the Tribunal pursuant to s 71(4). Thus, the roles of an agent and a s 71(4) representative are different. The fact that the Tribunal may only appoint a s 71(4) representative for a party if it finds that party to be an "incapacitated person" also leads to the conclusion that a s 71(4) representative has a similar function to a person who is tutor for a disable person pursuant to Part 63 of the Supreme Court Rules 1970. 17 In this instance the person appointed as the s 71(4) representative will personally have the conduct of the proceedings. This person will not act on the applicant's instructions but he/she must make decisions which he/she believes to be in the applicant's best interests. The applicant will not have the capacity to terminate the appointment of the s 71(4) representative. That person may be represented by a legal practitioner if he/she wishes. Whilst legal representation appears desirable, there is no equivalent in the Tribunal Act to Part 63 rule 3(2) of the Supreme Court Rules 1970 which renders it mandatory for a tutor to be legally represented. Similarly, whilst it may be desirable for the s 71(4) representative to seek the Tribunal's approval of any proposed compromise or settlement of these proceedings, the Tribunal Act contains no equivalent to Part 63 rule 11(1) of the Supreme Court Rules 1970 which renders court approval of a compromise or settlement mandatory. 18 Part 63 rule 7(2) of the Supreme Court Rules 1970 provides, in effect, that before appointing a tutor the Court should be satisfied that the proposed tutor consents to the appointment, that he/she is a proper person to undertake the role and that he/she has no interest in the proceedings that are adverse to those of the disable person. These appear to be appropriate considerations for this Tribunal to take into account when appointing a s 71(4) representative. 19 As s 73 of the Tribunal Act permits the Tribunal to act informally and to determine its own procedure, subject to complying with the rules of natural justice, the Tribunal engaged the assistance of a Deputy Registrar, Ms Rosemary Davidson, to locate an appropriate person to be the s 71(4) representative in this case. Both the respondent and the applicant agreed to this course. It was further agreed that the Tribunal would give both parties the opportunity to comment upon the suitability of any appropriate person or persons identified by Ms Davidson. 20 Ideally, given the nature of the role, the s 71(4) representative should be a public official. The Public Guardian is a statutory office established pursuant to s 77 of the Guardianship Act 1987. He/she has the functions imposed by the Guardianship Act and any other law. Under the Guardianship Act the Public Guardian may be appointed, and in certain circumstances must be appointed, by the Guardianship Tribunal to be the guardian of a person with a disability who has a need for a guardian. This Tribunal has no power to appoint the Public Guardian to be the s 71(4) representative of the applicant without the consent of the Public Guardian. Whether the Public Guardian has the power to consent to such an appointment is a matter that does not require an answer for the Public Guardian indicated to Ms Davidson that he was unable to accept any such appointment. 21 This Tribunal is in the process of establishing a guardian ad litem panel to assist in cases in the Community Services Division. Accordingly, in the absence of any appropriate public official to act as the s 71(4) representative, the Tribunal turned to the list of applicants to join this panel in order to locate a suitable person for appointment in this case. Ms Barbara Ramjan has expressed interest in becoming a member of this panel. In the opinion of the Tribunal she is an appropriate person to be appointed as the applicant's s 71(4) representative. Ms Ramjan is currently a guardian ad litem in the Children's Court. She has been a member of the Guardianship Tribunal since 1989. She has a postgraduate qualification from the University of Sydney in the area of health law. Ms Ramjan has consented to the proposed appointment and she has no interest in these proceedings which conflicts in any way with the interests of the applicant. 22 Both the applicant and the respondent have been given the opportunity to direct comments to Ms Davidson concerning the proposed appointment of Ms Ramjan. Neither party has raised any objection to Ms Ramjan's appointment. In view of the fact that any person appointed to represent the applicant could be liable to a costs order against him/her in certain circumstances, the respondent has provided the Tribunal with a written undertaking not to seek any costs orders against any person appointed as the applicant's s 71(4) representative. Order 23 The Tribunal makes the following order: Ms Barbara Ramjan be appointed pursuant to s 71(4) of the Administrative Tribunal Act 1997 to represent the applicant in these proceedings.