CITATION: Dezfouli v Department of Corrective Services [2009] NSWADT 1 DIVISION: Equal Opportunity Division APPLICANT Saeed Dezfouli PARTIES: RESPONDENT State of NSW (Department of Corrective Services) FILE NUMBER: 081091 HEARING DATES: 7 October 2008 SUBMISSIONS CLOSED: 11 November 2008 DATE OF DECISION: 7 January 2009 BEFORE: Hennessy N - Magistrate (Deputy President) CATCHWORDS: Jurisdiction LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 State of New South Wales (Justice Health) and anor v Dezfouli [2008] NSWADTAP 69 Xu v Sydney West Area Health Service [2006] NSWADT 3 Bogie v The University of Western Sydney EOC 92-313 (1990) at 78,146 CASES CITED: Dutt v Central Coast Area Health Service [2002] NSWADT 133 Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808 at 78,986 Dezfouli v R [2007] NSWCCA 86 APPLICANT In person REPRESENTATION: RESPONDENT G Singer, solicitor ORDERS: Leave is granted. REASONS FOR DECISION Introduction 1 Mr Dezfouli is an inmate at the forensic mental health section of Long Bay Hospital. Mr Dezfouli has made many complaints about his treatment by officers of Justice Health and the Department of Corrective Services while in Long Bay Hospital. This decision concerns a complaint of victimisation he made to the President of the Anti-Discrimination Board under the Anti-Discrimination Act 1977 (AD Act). He complained that as a result of a previous complaint that a Departmental officer had sexually harassed him, he has been victimised by that officer. Mr Dezfouli relied on three incidents in support of his complaint. Those incidents occurred on 6 December 2007, 22 February 2007 and 21 March 2007. Despite the fact that Mr Dezfouli referred to two other incidents, one on 25 April and the other on 29 April 2008, which he said constitutes further acts of victimisation, I have not taken those incidents into account because they were not part of the complaint that the President of the Board referred to the Tribunal. The Tribunal derives its jurisdiction from the referral of a complaint to the Tribunal: AD Act, section 95(3). While section 103 of the AD Act allows the Tribunal to amend a complaint, the Tribunal cannot amend a complaint before giving leave for the complaint to proceed. 2 The President of the Anti-Discrimination Board declined the complaint as lacking in substance. The reason for that decision was that Mr Dezfouli had failed to establish a link between any of the three incidents and the fact that he had made a compliant of sexual harassment. When the President declines a complaint as lacking in substance the applicant must obtain the Tribunal's permission, or leave, before the complaint can go ahead: AD Act, section 96. 3 The application for leave was heard on 7 October 2008. Mr Dezfouli participated by phone. Ms Singer represented the respondent. The material taken into account for the purpose of this decision is the President's Report and the oral submissions of Mr Dezfouli and Ms Singer. The Department relied on several documents during the course of the hearing. Ms Singer subsequently provided a copy of those documents to the Tribunal and Mr Dezfouli. The parties were then given an opportunity to file and serve any further submissions. Those submissions have also been taken into account in these reasons. 4 I have made an order, of my own motion, pursuant to section 75(2) of the Administrative Decisions Tribunal Act 1997 (ADT Act) that the disclosure of the names of employees of Justice Health and the Department of Corrective Services referred to by Mr Dezfouli in his complaint is prohibited. Those persons are identified in these reasons either by a generic name, such as "officer" or "nurse" or by a pseudonym. The reasons for that order are the same reasons that the Appeal Panel gave for making a similar order in State of New South Wales (Justice Health) and anor v Dezfouli [2008] NSWADTAP 69. Approach to leave applications 8 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. 5 In summary, an applicant must demonstrate a substantial reason for leave to be granted and the Tribunal must keep in mind both 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. Summary of Mr Dezfouli's complaint 6 On 22 March 2008, Mr Dezfouli completed an Inmate Application Form addressed to the General Manager of Long Bay Hospital saying that since complaining that Officer A had sexually harassed him, he has been victimised. Mr Dezfouli says that the trigger for the victimising behaviour was a complaint of sexual harassment he made about an incident on 21 September 2007 where Officer A came into the shower while he was naked and told him to "hurry up". Mr Dezfouli said Officer A was looking at his genitals, not his eyes, when he made the comment. 7 He nominated three occasions on which the victimisation had taken place, namely 6 December 2007 when Officer A insisted on searching him despite the fact that he was ill, 22 February 2008, when Officer A was rostered on to the ward in which Mr Dezfouli is a patient and 21 March 2008 when he alleges that Officer A called him a "fucking idiot". On 27 March 2008 Mr Dezfouli lodged the complaint with the Anti-Discrimination Board. The Department says that the Inmate Application Form completed by Mr Dezfouli on 22 March 2008 was not sent to the General Manager. That assertion is supported by Mr Dezfouli's covering letter to the Board which says, in part, "If I send it to (the General Manager) it probably would end up in her rubbish bin or get covered up as usual." For the purpose of these proceedings it makes no difference whether Ms Dezfouli first sent the form to the General Manager. 8 Mr Dezfouli says he has difficulty proving his complaints because the Department has unlawfully created a "red folder" and denies the existence of certain documents. His proof of the existence of the red folder is contained in a copy of an e-mail between two Departmental officers dated 8 August 2007 relating to an application by Mr Dezfouli under the Freedom of Information Act 1989. In that e-mail the author says: About 2/3 months back (3 officers) attended Long Bay Hospital for discussion with (another officer) re the repetitive nature of Mr Dezfouli's complaints. At that time the red folder held in this office was shown to them. This folder was created by (an officer) as a means of quick reference to the more sensitive issues concerning Mr Dezfouli. 9 Mr Dezfouli then points out that in a letter to him dated 19 May 2008 from the Department its response to his request for access to all documents in the red folder is that "the folder does not exist". Mr Dezfouli's submission was that if he were able to obtain access to the documents in the red folder they would support his complaint. Mr Dezfouli also said that the only way to prove his case is to summons documents and witnesses. 10 While referring to conflicting evidence, I have assessed Mr Dezfouli's complaint on the basis that a Tribunal would make findings in accordance with his version of each of the three incidents. I have also assumed, without finding, that Officer A knew of the sexual harassment complaint prior to the first incident. 1st incident- 6 December 2007 11 Mr Dezfouli says that on 6 December 2007 while he was in the Education Unit at Long Bay Hospital, he suffered an anxiety attack. He alleges that after staff were called to assist him. Officer B, who was senior in status to Officer A, ordered Officer A to search Mr Dezfouli prior to taking him to the clinic. Mr Dezfouli said that a nurse advised Officer A that he had to be taken to the clinic for further treatment as a matter of urgency to which Officer A replied, "He blew up a government office and killed two people, what do you care?" Mr Dezfouli's allegation of victimisation is based on this comment and Officer A's insistence that he be searched when there was a medical emergency. 12 The Department provided a report from Officer B dated 14 May 2008. I have substituted pseudonyms for the names of the officers in that report: As I recall, on the 6th of December 2007 intimate Dezfouli attended a cooking class in the afternoon held at Activities. During the group he complained of having chest pains and the nurses from 'C' ward were called immediately. 'C' ward nurses attended to the inmate immediately and he was treated initially at the activities area. Officer A also attended to activities during that time. Inmate was then taken back to 'C' Ward (Dezfouli walked to 'C' Ward) accompanied by two nurses and Officer A. I then instructed Officer A to conduct a ' pat search' on Dezfouli before going to 'C' Ward, considering the facts, having access to tools to work in activities area for inmates and the fact that Inmate Dezfouli seemed fit enough and was allowed by the nurses present to walk back to the ward. I believe Dezfouli was searched between the two grilled gates (outside Activities) and I did not witness the search as I did not leave activities having to supervise other inmates in the cooking group. 13 The Department also provided a statement from Officer A dated 14 May 2008 in relation to the same incident: On the 6th of December 2008 I was performing my duties as 'C' ward officer when I was summoned to the activities area by Officer B as intimate Dezfouli (details deleted) was apparently ill. At this point I was unaware of any previous incident involving myself and the inmate or frivolous accusations made against myself. I entered the area to notice two JH (Justice Health) nurses were assessing Dezfouli. One of the JH nurses then left the area and I was told Dezfouli would have to return to 'C' ward. I was told by JH staff he was fine to walk back and was instructed by Officer B to pat search the intimate before returning to the ward. As a new probationary officer at the time I acted solely on the judgement of the senior officer. When we left the area I informed the nurse that a pat search had to be undertaken. As this event was a considerable time ago I am unaware what was stated but remember the nurse refusing to allow me to pat search the inmate. I stated that a senior had told me to do it and as such was bound to undertake it. I was eventually allowed to undertake said pat search, which took a matter of seconds, but only after re-entering 'C' yard. At no time did I state, " He blew up a government office and killed two people. What do you care" as until this complaint was received from the Anti-Discrimination Board I was unaware of why Dezfouli was incarcerated. We then proceeded to the ward area and the attending nurse became agitated that I had undertaken a pat search, I then asked another officer to take over from me. I submit this report for your information. (Words in brackets added.) 14 In response, Mr Dezfouli said that one of the Justice Health Nurses, Nurse A, was a witness to Officer A saying that he had killed two people and she could provide a statement to that effect. Mr Dezfouli says that the nurse discussed Officer A's conduct with senior officers and asked them not to roster him back in C ward. Despite that request Mr Dezfouli says that Officer A was rostered back in C ward and that Nurse A expressed surprise when that happened. 2nd incident – 22 February 2008 15 Mr Dezfouli said that on 22 February 2008 Officer A was rostered on again and that he noticed that he was staring at him and giving him mean looks and nodding his head. Mr Dezfouli said he felt "insecure, bothered, annoyed and fearful" that Officer A might "set him up". Mr Dezfouli said that he spoke to another officer who spoke to Officer A and later Officer A was removed to another ward. 16 The Department provided a statement dated 19 May 2008 from Officer C, a senior correctional officer, saying that his recollection of the events on 22 February 2008 were that: Shortly after taking up . . . duties in 'C' Ward, I had a conversation with inmate Dezfouli who advised me he was involved with an ongoing accusation/investigation concerning Officer A (who was rostered to 'C' Ward staff that shift). Dezfouli thought it inappropriate and intimidating that this had happened and expressed concern that 'something may happen'. I had a conversation separately with Officer A who made me aware of accusations made by Dezfouli towards himself. Officer A said that he himself felt unease that he had been rostered to the ward given the accusations by Dezfouli. When asked by myself if he would consider it appropriate to be swapped to another ward, Officer A readily agreed. I rang . . .(an officer), explained the circumstances and Officer A was swapped to another ward with his consent. 3rd incident – 21 March 2008 17 Mr Dezfouli alleged that on 21 March 2008 Officer A was rostered on ward C and that when Mr Dezfouli left his cell he saw Officer A at the gate in the yard staring at him. Mr Dezfouli says he put his head down and pretended that he did not see Officer A. He says that as soon as he passed him Officer A said to him "fucking idiot". Mr Dezfouli responded by saying, "Shut up you sadistic corrupt and criminal thug." The Department provided a copy of a memorandum from Officer A to the General Manager dated "2008" entitled "Response to allegations from inmate Dezfouli" which said: On 21/3/08 at approximately 1415 hours I was counting inmates into the yard when inmate Dezfouli [details deleted] was the last inmate to enter the yard. He stated to me "you rapist" or words to that effect. I then responded by telling the inmate to "Fuck off" or words to that effect. I realise I should not have said this but was highly offended by what Dezfouli stated to myself. Submitted for your convenience. Vexatious? 18 The Department submitted that leave should be refused because Mr Dezfouli's complaint is vexatious or alternative it lacks merit. Support for refusing to proceed on vexatious grounds was said to be the fact that he has filed over 30 complaints against the Department and its officers and that he has a history of mental illness which manifests itself in delusional beliefs that people are conspiring against him. 19 Mr Dezfouli was found to have deliberately set fire to the offices of the Community Relations Commission in Sydney in 2002. As a result of that fire a person died and there was extensive damage to property. Mr Dezfouli was found not guilty, by reason of mental illness, of murder and of maliciously damaging property by fire with intent to endanger human life. The Department relied on the decision in Dezfouli v R [2007] NSWCCA 86 (12 April 2007) in which the Court of Criminal Appeal dismissed Mr Dezfouli's appeal against special verdicts that he was not guilty by reason of mental illness. At [28] the Court recounted the opinion of Dr Allnut: Dr Allnut expressed the opinion that the appellant was suffering from a psychotic mental illness manifesting itself in the form of persecuting the delusions. He concluded on the balance of probabilities that the appellant had been suffering from similar symptoms at the time of the offence. Dr Allnut considered that the appellant had held his delusional beliefs at least since 1999. He commented on a consistent pattern of evidence of the appellant holding the belief that there was a large conspiracy against him involving political, legal and medical figures. His beliefs were based on flimsy evidence. In Dr Allnut's opinion, the beliefs were an essential organising feature of the appellant's life. Dr Allnut considered that the appellant had lost insight. He noted that the appellant did not believe that he had a mental illness and that he was able to present in a sustained manner and come across as a very intelligent, articulate and politically aware individual. 20 We note that Dr Allnutt did not examine Mr Dezfouli and that his opinion was based entirely on the observations of others. Perhaps more relevant to these proceedings is an opinion expressed by Dr Tony Mastrioanni, a consultant psychiatrist with the Department, that Mr Dezfouli "was suffering from a mental illness characterised by delusional beliefs of a conspiratorial nature" and that he "incorporated daily events in the Ward, including comments made by prison officers and the behaviour of the doctors, into his paranoid belief system and that these beliefs were false": Dezfouli v R [2007] NSWCCA 86 at [30]. Dr Mastrioanni gave this evidence in 2007. 21 In Crewdson v Niland & Ors (EOD) [2002] NSWADTAP 5 at [31], the Appeal Panel described a complaint which has no foundation in fact as "vexatious", then said Proceedings can … be vexatious if: 1. they are instituted with the intention of annoying or embarrassing the person against whom they are brought; 2. they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise; 3. irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless: Attorney-General v Wentworth (1988) 14 NSWLR 481, per Roden J at 491." 22 We accept that Mr Dezfouli has filed numerous complaints with government agencies against Justice Health and the Department. He says his motive for making those complaints is a deep seated conviction that inmates are being denied basic human rights and that when they complain, they are punished for their actions. The Department says that his persistence in making complaints arises, at least in part, from a mental illness with includes "delusional beliefs of a conspiratorial nature". In my view the incidents about which Mr Dezfouli has complained are not so obviously delusional as to justify refusing leave on that basis. Prospects of success 23 Alternatively, the Department submitted that the complaint should be declined because it has no reasonable prospects of success. Section 50 of the AD Act provides that: (1) It is unlawful for a person ("the discriminator") to subject another person ("the person victimised") to any detriment in any circumstances on the ground that the person victimised has: (a) brought proceedings against the discriminator or any other person under this Act, (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act, (c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or (d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them. (2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith. 24 In order to substantiate the complaint of victimisation, Mr Dezfouli would have to prove, on the balance of probabilities, that: (a) the three incidents constitute a 'detriment'; (b) in accordance with section 50(1)(a) he has brought proceedings against Officer A or any other person under the AD Act; (c) at least one of the reasons for him being subjected to those detriments was that Mr Dezfouli brought those proceedings. 25 Detriment? The term 'detriment' in section 50 means 'loss, damage or injury' to the applicant and that 'the applicant has been placed under a disadvantage as to a matter of substance as distinct from a trivial matter': Bogie v The University of Western Sydney EOC 92-313 (1990) at 78,146; Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [244]; Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 at [40]; and Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808 at 78,986. The alleged detriments in this case can be summarised as: (a) a comment by Officer A that, "He blew up a government office and killed two people, what do you care?" and a refusal to allow him to pass through the gates until he had been searched when there was a medical emergency; (b) Officer A being rostered on to the Ward in which Mr Dezfouli was a patient and staring at him, giving him 'mean' looks and nodding his head; and (c) Officer A calling him a "fucking idiot". 26 It is not sufficient that Mr Dezfouli perceives that he has been subjected to a detriment: the loss, damage or injury must be such that a reasonable person would consider it to be a detriment. In relation to the second incident, in my view it is possible that a Tribunal hearing this complaint would find that a reasonable person in Mr Dezfouli's situation would not consider that incident to be a 'detriment' to Mr Dezfouli. Mr Dezfouli does not allege that Officer A did anything or said anything to him apart from staring at him, giving him mean looks and nodding his head. The mere presence of a person, having a particular expression on their face, is arguably a trivial matter, as distinct from a matter of substance. In addition, there is evidence that, at least in 2007, Mr Dezfouli incorporated daily events in the ward, including comments made by prison officers . . .into his paranoid belief system and that these beliefs were false": Dezfouli v R [2007] NSWCCA 86 at [30]. There is a possibility that a Tribunal could find that the comment Mr Dezfouli says officer A made during the first incident falls into that category. A Tribunal is more likely to regard the third incident as constituting a detriment. 27 Allegation of a contravention. In order for Mr Dezfouli's complaint to amount to victimisation, he must have done one of the things listed in section 50(1). In this case there is no doubt that Mr Dezfouli has brought proceedings against the Department under the AD Act: section 50(1)(a). In Dezfouli v Department of Corrective Services [2008] NSWADT 277 the Tribunal refused to give leave for Mr Dezfouli's complaint of sexual harassment against the Department to proceed pursuant to section 96 of the AD Act. Two of the reasons were that the Tribunal had doubts that the conduct of looking at a person's genitals when naked in the shower constituted "sexual harassment" and also expressed the view that the "early shower programme" was unlikely to be regarded as a "service" as required by section 22F of the AD Act. Despite the fact that the Tribunal refused leave for the complaint to go ahead, Mr Dezfouli has done one of the things listed in section 50(1). 28 Causation. The final element of section 50 is that the detriment is "on the ground of" Mr Dezfouli having brought those proceedings. There has been some discussion in the cases as to whether this test differs from the test for establishing causation in discrimination complaints. (See, for example, Brown v Richmond Golf Club & anor [2006] NSWADT 104 at [82] to [85]. For the purpose of this application I have assumed that the test that is most favourable to Mr Dezfouli's application applies. That test is that it is sufficient if at least one of the reasons for the detriment is the fact that he has done one of the things listed in section 50(1). Despite the fact that there is conflicting evidence about whether Officer A knew of the complaint when the first incident occurred I have also assumed, without finding, that he did. The Department acknowledges that after January 2008, when Mr Dezfouli lodged the complaint of sexual harassment with the Anti-Discrimination Board, Officer A knew about the complaint. Conclusion 29 While Mr Dezfouli's complaint is weak, it cannot be said that it has no reasonable prospects of success. If the Tribunal accepts that at least one of the incidents constitutes a detriment there may be sufficient circumstantial evidence to conclude that those incidents were "on the ground of" Mr Dezfouli having brought proceedings for sexual harassment against the Department. There is seldom any direct evidence of a connection between the making of a complaint and any detriment. A finding favourable to Mr Dezfouli would have to be based either on the unlikely possibility of an admission from Officer A at the hearing or on inferences drawn from the Tribunal's finding of fact. Orders 1. Pursuant to section 75(2)(c) of the Administrative Decisions Tribunal Act 1997, the disclosure of the names of employees of Justice Health and the Department of Corrective Services referred to in these reasons or the doing of any other thing that identifies, or may lead to the identification of such persons is prohibited 2. Leave is granted. 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.