CITATION: Dezfouli v Justice Health and anor [2008] NSWADT 99 DIVISION: Equal Opportunity Division APPLICANT Saeed Dezfouli PARTIES: FIRST RESPONDENT Justice Health SECOND RESPONDENT Department of Corrective Services FILE NUMBER: 071133 HEARING DATES: 15 January 2008 SUBMISSIONS CLOSED: 15 January 2008 EXTEMPORE DECISION DATE: 15 January 2008 DATE OF DECISION: 15 January 2008 BEFORE: Hennessy N - Magistrate (Deputy President) CATCHWORDS: Application for leave to proceed MATTER FOR DECISION: Preliminary matter LEGISLATION CITED : Disability Discrimination Act 1992 (Cth) IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 CASES CITED: Rainsford v State of Victoria & Anor (2007) 242 ALR 128; (2007) EOC 93-468 Xu v Sydney West Area Health Service [2006] NSWADT 3 APPLICANT In person REPRESENTATION: FIRST RESPONDENT G Singh, solicitor SECOND RESPONDENT P Grech, solicitor ORDERS: 1. Leave to proceed with the complaint of disability discrimination is refused 2. Leave to proceed with the complaint of sexual harassment is refused. REASONS FOR DECISION Introduction 1 Mr Dezfouli is requesting the Tribunal's permission to go ahead with complaints of disability discrimination and sexual harassment against two respondents, Justice Health and the Department of Corrective Services. Mr Dezfouli is in custody at Long Bay Hospital. I understand that he is there because he has been diagnosed with a mental illness. The complaints he has made are complaints of sexual harassment and disability discrimination in relation to the services provided to him by nurses who are employees of Justice Health, and prison officers who are employees of the Department of Corrective Services. According to Mr Dezfouli there is a culture of fear in the hospital. Nearly all the patients are mentally ill and have a low level of education. He says that he is the only person who can expose what is happening. 2 Among other things, Mr Dezfouli alleges that his bones have been broken, he has been kept in a cell naked for a number of days, tons of poison chemicals have been pumped into his body and he has been insulted, intimidated and humiliated. He says that on 28 August 2006 he was assaulted and placed in segregation for 5 days because he walked into the laundry room to get a drink of water. On 1 November 2006 he says he was assaulted and injured by prison officers and placed in segregation for one day because he turned up the volume on the radio. He also says that his cell has been "trashed" during a so-called search. 3 The sexual harassment complaint alleges that nurses have touched his arms and hands while talking to him which made him uncomfortable. He also says that he has been improperly touched around the genitals by prison officers while they were searching him. He alleges that officers have made improper comments such as "big dick". According to Mr Dezfouli, a night nurse once said to him, "If you put your dick out of the latch I will suck it for you". He said he told the nurse to "fuck off" or he would call the prison officer. The period of the complaints is 20 November 2005 to 20 November 2006. Mr Dezfouli acknowledges that some of the incidents about which he has complained did not occur within the complaint period. 4 The President of the Anti-Discrimination Board declined those complaints as lacking in substance. When that happens, the complainant must obtain the Tribunal's leave before the complaints can proceed: Anti-Discrimination Act 1977 (AD Act), section 96. The application for leave was heard on 15 January 2008. Mr Dezfouli participated by phone. Approach to leave applications 5 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]: 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. 6 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. The applicant said that the complaints did have a reasonable prospect of success and that leave should be granted. Disability complaint 7 What would Mr Dezfouli have to prove? To succeed in a complaint of disability discrimination, Mr Dezfouli would have to: 1. prove that he has a disability within the meaning of that term in section 4 and section 49A; 2. define the nature of the services that the respondents were providing to him; 3. establish that those "services" come within the meaning of services in the AD Act; 4. prove that the services were refused or provided on less favourable terms than they were provided or would have been provided to a person without his disability; 5. prove that at least one of the reasons for refusing the services or providing them on less favourable terms is his disability; 6. establish that the respondents are vicariously liable for any unlawful acts of their employees; and 7. establish that the allegations occurred within the period of the complaint. 8 The relevant provisions in relation to the complaint of disability discrimination are section 4, section 49A, section 49M, section 49B and section 53 of the AD Act . 9 Nature of the disability. Mr Dezfouli said that the respondents believe that he has a psychiatric illness. If that is the case, it would amount to a disability within the meaning of that term in the AD Act. 10 Identification of the service. It is essential when alleging discrimination 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. Mr Dezfouli has not defined the service that he is receiving from either respondent. 11 Are the respondents providing such a service? Even if Mr Dezfouli identifies a service, which is being provided to him, that service must be a service within the meaning of that term in the AD Act. 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]. Without any findings of fact having been made about the nature of the services Mr Dezfouli says are being provided, it is not possible to determine whether those activities come within the definition of "services' in the AD Act. However, the decision in Rainsford v State of Victoria casts some doubt on the prospects of Mr Dezfouli being able to establish that he was being provided with a "service" by either of the respondents when the alleged incidents occurred. 12 Were the services refused or provided on less favourable terms than they were provided or would have been provided to a person without his disability? Mr Dezfouli did not suggest that there were other people in the same or similar circumstances to him, but without a disability, who had been treated more favourably. 13 Was one of the reasons for refusing the services, or providing them on less favourable terms, his disability? Mr Dezfouli did not explain how the treatment he had received related to his disability. He said that he had organised for a petition to be signed by majority of inmates, which was publicised in the Australian Newspaper in June 2005. Since then he said that he has been singled out and victimised by Justice Health. He also says that he has been targeted because he lodged complaints with other agencies. These comments suggest that rather than his disability being a reason for the conduct, his agitation for change is the reason for the alleged mistreatment. If that it is the case, it is unlikely that Mr Dezfouli would be able to prove this element of his complaint. 14 Are the respondents vicariously liable for the unlawful acts of their employees? No submissions were made on this point. 15 Period of the complaint. Some of the incidents about which Mr Dezfouli complained come within the period of the complaint. Other allegations of a more general nature were made without any dates or time period being specified. Mr Dezfouli says that he needs to summons his file and video footage to establish that when the incidents occurred. Conclusion - disability complaint 16 The AD Act addresses discriminatory treatment in various areas of public life. It is not a Bill of Rights. The Tribunal has no power to determine broader human rights issues, which are not made unlawful by the legislation. In order to establish that the AD Act has been breached, a person must prove each element of that breach. Critically, in this case, Mr Dezfouli must be able to prove that one or both respondents is providing him with a particular service that comes within the definition of that term in the AD Act. Mr Dezfouli must also be able to prove that a reason for the alleged mistreatment was his disability. On the material available, it is my view that even if he were able to establish that one or both respondents is providing him with a service, on his own evidence, the reason for the alleged mistreatment is that he has complained in the past, not because he is assumed to have a psychiatric disability. In those circumstances, his disability discrimination complaint has no reasonable prospects of success. Consequently, leave for the disability complaint to proceed is refused. Sexual harassment 17 What would Mr Dezfouli have to prove? To succeed in a complaint of sexual harassment against either of the respondents, Mr Dezfouli would have to prove that in the course of receiving services from a person, that person engaged in unwelcome conduct of a sexual nature in relation to him in circumstances in which a reasonable person would have anticipated that Mr Dezfouli would be offended, humiliated or intimidated. Mr Dezfouli would also have to prove that the respondents are vicariously liable for any unlawful acts of their employees and that the conduct occurred during the complaint period. The relevant provisions in relation to the complaint of sexual harassment are section 22F, section 22A and section 53 of the AD Act. Conclusion – sexual harassment complaint 18 Mr Dezfouli has not specified any time period in which the alleged sexual harassment occurred. However, if more evidence such as a file or video footage were available to him, he may be able to pin point the dates of the alleged misconduct. 19 Even if Mr Dezfouli were able to prove that the conduct amounts to sexual harassment and that the conduct occurred within the period of the complaint, he has no reasonable prospects of establishing that the conduct occurred in the course of him receiving services from the person concerned. Mr Dezfouli has not defined the services he says he was receiving. Furthermore, in view of the decision in Rainsford v State of Victoria & Anor the prospects of Mr Dezfouli being able to persuade the Tribunal that either of the respondents were providing him with a service at the time the alleged events occurred, are small. Orders 1. Leave to proceed with the complaint of disability discrimination is refused 2. Leave to proceed with the complaint of sexual harassment is refused. 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.