Liu Fei v Department of Services, Technology and Administration [2012] NSWSC 1140

Supreme Court New South Wales

Medium Neutral Citation: Liu Fei v Department of Services, Technology and Administration [2012] NSWSC 1140 Hearing dates: 28 April 2011 & 3 June 2011 Decision date: 21 September 2012 Jurisdiction: Common Law - Administrative Law Before: Hidden J Decision: Summons summarily dismissed Catchwords: ADMINISTRATIVE LAW - proceedings by unrepresented plaintiff by way of appeal from interlocutory decision of Administrative Decisions Tribunal - no statutory right of appeal to Supreme Court - whether proceedings might be recast as application for prerogative relief - whether such proceedings are bound to fail Legislation Cited: Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997 Uniform Civil Procedure Rules 2005 Cases Cited: Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 Wentworth v Rogers (No. 5) (1986) 6 NSWLR 534 Category: Principal judgment Parties: Liu Fei (plaintiff) Director-General, NSW Department of Services, Technology and Administration (defendant) Representation: Counsel: Mr G Dilworth (plaintiff) Ms NL Sharp (defendant) Solicitors: IV Knight, Crown Solicitor (defendant) File Number(s): 2010/330304

Judgment 1This matter arises from proceedings in the Administrative Decisions Tribunal ("ADT"). It is necessary to sketch the history of those proceedings before turning to the relief sought in this court. 2Until about May 2003 the plaintiff, Liu Fei, was employed by the defendant, then known as the Department of Commerce (Industrial Relations Directorate) and now as the Department of Services, Technology and Administration. In the period between the end of July 2002 and early May 2003, he lodged a number of complaints with the Anti-Discrimination Board against that department, alleging discrimination on the basis of disability and race, and victimisation. On 18 February 2004 the president of the Board declined each of those complaints, pursuant to s 90(1) of the Anti-Discrimination Act 1977, on the ground that they were lacking in substance. About 3 months later, at Mr Fei's request, his complaints were referred to the ADT. The nature of his complaints, expressed as Points of Claim, need not be examined for present purposes. 3The proceedings were protracted. On 29 September 2008, on Mr Fei's application, the ADT appointed a personal representative pursuant to s 71(4) of the Administrative Decisions Tribunal Act 1997 ("ADT Act"). That sub-section provides for the appointment of a representative for an incapacitated person. The meaning of "incapacitated person" is to be found in subs (7). Relevant for present purposes is the definition in par (b) of that sub-section, as follows: "(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 ..." In the following month, for reasons which are not material, the person appointed as personal representative was replaced by Ms Diane Doratis. 4On 3 and 4 June 2010, an application by Mr Fei to revoke the appointment of Ms Doratis was heard by Magistrate Hennessey, Deputy President of the Tribunal. Mr Fei claimed that he was able to safeguard his own interests and did not need a personal representative. On 4 June her Honour refused the application and referred the matter for mediation. It will be necessary later to consider the evidence in the application for revocation of the appointment and her Honour's reasons for refusing it. 5Having made the order, her Honour explained to Mr Fei that it would take effect immediately unless he lodged an appeal against it to the Appeal Panel constituted by s 113 of the ADT Act, and obtained a stay of the order. Section 113(1) provides for an appeal to the Appeal Panel against certain decisions of the Tribunal. By subs (2), such an appeal may be made on any question of law or, with the leave of the Appeal Panel, may extend to a review of the merits of the decision. By subs (2A), leave of the Appeal Panel is also required for an appeal against "the exercise of an interlocutory function ...". 6On 4 August 2010, Mr Fei filed a three-page letter at the ADT in which he maintained that he was able to protect his own interests in the proceedings, and applied "for an order of the Tribunal to stop my representative, Ms Diane Doratis, from accepting any offer of settlement made by the Respondent without my consent." On the same day the matter was back before Magistrate Hennessey for directions. There was a deal of discussion between Mr Fei and her Honour about the letter, which he sought to characterise as an appeal against her Honour's refusal to revoke the appointment of Ms Doratis. Her Honour rejected that contention, saying that it did not amount to the lodgement of an appeal and adding that he knew "very well" that it did not. At this stage the prescribed time for such an appeal had expired. Her Honour set the matter down for mediation on 31 August 2010, giving directions that Mr Fei should not attend and that Ms Doratis should obtain legal representation. 7During the hearing of his application to revoke the appointment of Ms Doratis, Magistrate Hennessey had given a direction to the registry that they were not to accept any documents from Mr Fei himself other than a document dealing with Ms Doratis's appointment. According to Mr Fei, on 27 August 2010 he sought to file a notice of appeal to the Appeal Panel, but was told by registry staff that he was not able to do so because his matter was in the hands of a personal representative and he could not file the appeal himself. Whether this occurred is a matter in issue in the proceedings in this court, to which I shall return. In the material before me is a printed notice of appeal to the Appeal Panel, in which Mr Fei appeals on a question of law and seeks leave to appeal on the merits of the decision. The grounds of the appeal and the application for leave appear in his handwriting, as does a brief description of the decision appealed against. That decision is expressed to be "Mediation held without the Applicant's consent nor participation. Decision made on 4 August 2010." The document is unsigned and undated. 8The mediation proceeded, in Mr Fei's absence, on 31 August 2010. Ms Doratis was present, represented by counsel and solicitor, and the Department was represented by a solicitor from the office of the State Crown Solicitor. The matter was settled and a mediation agreement was entered into. The effect of the agreement was that Mr Fei was awarded damages of $50,000, less certain costs, and he released the Department from any claims he might have against it. Later that same day, the Tribunal made orders under s 105 of the ADT Act giving effect to the mediation agreement. On 14 September 2010 the Department's cheque for the agreed amount was delivered to Mr Fei's solicitors, and three days later it was banked. 9Mr Fei commenced proceedings in this court, without legal representation, by a summons commencing an appeal or seeking leave to appeal under UCPR pt 50. Here also, the particulars required to be supplied in the prescribed form are in his handwriting. Magistrate Hennessey is named as the judicial officer whose decision is challenged, and the subject matter of the appeal is expressed to be "Agreement for the settlement of my case without my consent." In lieu of the decision appealed against, he seeks his reinstatement as an employee and substantial compensation for lost income. 10Attached to the summons are handwritten grounds of appeal. They are discursive but clear enough. Their focus is the settlement of the claim in Mr Fei's absence, and his complaint that the conduct of his case by a personal representative was inappropriate. He asserts that it was "obviously an error of law in the decision of the Tribunal made on 4 August 2010 re directing Ms Doratis and the Respondent conduct a mediation without my consent nor participation." 11After a brief account of the hearing of his application to dispense with a personal representative, he writes, "I lodged an application with the Tribunal on 4 August 2010, seeking for an order of the Tribunal to stop Diane Doratis from accepting any offer of settlement for my case without my consent." A copy of his letter of 4 August, to which I have referred, is attached to the summons. He also wrote, "On 27 August 2010, I went to the Tribunal and lodged my appeal against the Tribunal's decision made on 4 August 2010 in relation to my case." He goes on to recount the refusal of the registry staff to accept his notice of appeal to the Appeal Panel, and a copy of the document is also attached to the summons. 12The Department filed a motion for the summary dismissal of the summons, and it is that motion which came before me. It is unnecessary to recount the procedural steps leading to the hearing except to say that, following a referral to the Pro Bono Panel under UCPR 7.36, Mr Fei was represented by Mr Dilworth of counsel. I am grateful to Mr Dilworth for his assistance. 13Counsel for the Department, Ms Sharp, advanced three bases for the summary dismissal of the summons: The appeal (or application for leave to appeal) is incompetent, having regard to the statutory rights of appeal conferred by the ADT Act. The release in the mediation agreement is a bar to all further legal proceedings, including the appeal. The appeal is an abuse of process because, while it is framed as a challenge to the ADT's order giving effect to the mediation agreement, it is in fact a collateral attack on the Tribunal's earlier decision not to revoke the appointment of the personal representative. 14The only provision in the ADT Act for an appeal to this court is against a decision of the Tribunal's Appeal Panel. Section 119(1) provides for an appeal against a decision of the Appeal Panel on a question of law. Subs (1A) provides for an appeal by leave of this court against certain decisions of the Appeal Panel: an interlocutory decision, a decision made with the consent of the parties or a decision as to costs. There is no right of appeal from a decision of the ADT at first instance. 15Ms Sharp argued that the only decision of the Tribunal susceptible to any form of appeal was Magistrate Hennessey's dismissal on 4 June 2010 of Mr Fei's application to revoke the appointment of Ms Doratis. His only right of appeal against that decision was an appeal (or application for leave to appeal) to the Appeal Panel under s 113 of the Act. Yet, she argued, he never exercised that right. His letter of 4 August was not such an appeal, either in form or content. It makes no reference to Magistrate Hennessey's decision of 4 June, nor to the Appeal Panel. It does no more than apply for an order of the Tribunal preventing Ms Doratis from accepting any offer of settlement without his consent. 16As to the notice of appeal to the Appeal Panel which Mr Fei claims he sought to file on 27 August 2010, Ms Sharp noted that it is unsigned and, more importantly, undated. The decision under appeal is not said to be Magistrate Hennessey's decision of 4 June. Rather, as I have said, it is expressed as "mediation held without my ... consent nor participation. Decision made on 4 August 2010." Ms Sharp pointed out that the only decision made on 4 August was to refer the matter for mediation. Moreover, that passage in the notice of appeal caused Ms Sharp to question whether the document was prepared on 27 August. It suggests, she said, that it was prepared after the mediation had been held, noting that it took place on 31 August. 17Neither party led any evidence on this issue. I can see the force of Ms Sharp's argument that the terms of the document convey that it was prepared after the mediation had taken place. On the other hand, the words "mediation held without my ... consent nor participation" could have been intended to express Mr Fei's complaint about how the mediation was to be conducted. In the event, as will be seen, I find it unnecessary to decide when the document was prepared and whether Mr Fei did seek to file it, as he claimed. 18For Mr Fei, Mr Dilworth confirmed that the gravamen of his client's complaint was Magistrate Hennessey's refusal to revoke the appointment of his personal representative. He acknowledged that the only avenue of appeal from that decision was to the Appeal Panel, and that no form of appeal lies to this court. He argued, however, that the focus of the summons is Mr Fei's claim that he was prevented from pursuing a remedy in the Appeal Panel by her Honour's refusal to accept his letter of 4 August 2010 as a document initiating such an appeal, together with the refusal of the registry to accept his notice of appeal of 27 August. He submitted that the summons should be treated as an application for prerogative relief in this court, effectively seeking an order in the nature of mandamus directing the Registrar of the ADT to accept his notice of appeal to the Appeal Panel for filing. 19Mr Dilworth referred to the decision of Cross J in Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937, dealing with an application to strike out a statement of claim. At 942C, referring to relevant authority, his Honour said: "... a pleading will not be struck out if it is merely demurrable. The pleading must be something more than demurrable; it must be so bad that no legitimate amendment could cure the defect ..." At 944C, after referring to the relevant rule then in force, his Honour said: "On such a motion the court's consideration is not limited to the statement of claim, ie to whether it has the defects or negative qualities specified in this rule, but to the 'proceedings generally' ..." 20Addressing the fact that Mr Fei prepared his summons without legal representation, Mr Dilworth referred to Wentworth v Rogers (No. 5) (1986) 6 NSWLR 534, an appeal against an order striking out the statement of claim of an unrepresented litigant. At 536F to 537B, Kirby P said: "... the appellant being a litigant now appearing in person, care must be taken to ensure that this significant disadvantage does not deprive her of the opportunity to have her claim, if any, determined according to law. Persons unfamiliar with the rules of pleading and the technicalities which surround the drafting of a statement of claim in adequate and permissible legal form are inevitably, if unrepresented, at a disadvantage. Courts should approach the peremptory termination of the litigation with special care to ensure that, within the possibly ill expressed and unstructured statement of the legal claim sought to be ventilated, there is no viable cause of action which, with appropriate amendment of the pleading and a little assistance from the court, could be put into proper form. If this can be done, the court should avoid the summary termination of the proceedings for this will prevent the Court from examining any merits of the case, once the statement of claim is struck out." 21Approaching the matter in that way, Mr Dilworth submitted, Mr Fei's summons sufficiently conveys a proper claim for prerogative relief or, at least, could do so with appropriate amendment. I received in draft an amended summons which he had drawn. It seeks orders that the ADT be joined as a party to the proceedings and that the decision of Magistrate Hennessey "not to accept for filing in court" an appeal to the Appeal Panel against her decision of 4 June 2010, and of the Registrar of the Tribunal "not to accept for filing in the registry" such an appeal, be set aside. Orders are then sought that the Registrar "accept for filing in the registry" such an appeal within 28 days of any order of this court. Mr Dilworth did not seek an order that the summons be amended in that way. Rather, he relied upon the document to show that, if necessary, it could be meaningfully amended. That being so, he argued, the form of the summons at it stands would be an inappropriate basis upon which to order the summary dismissal of the proceedings. 22Put shortly, Mr Dilworth's submission was that the summons sufficiently identifies a complaint of denial of procedural fairness, amounting to jurisdictional error susceptible to remedy in this court. This involves a liberal interpretation of Mr Fei's summons, but I can see the force of Mr Dilworth's argument. If the matter ended there, it might be concluded that the case was one deserving of decision on its merits and that it should not be summarily dismissed. However, the matter does not end there. 23As I have said, Ms Sharp also relied upon the release in the mediation agreement. This is to be found in cl 5 of the agreement, as follows: "The Applicant releases the Respondent and its past and present officers, employees and agents from any and all claims in relation to, arising out of, or in connection with these proceedings ... and complaints to the Board ... or any of the matters referred to, mentioned, pleaded or cited in the documents that Mr Liu Fei and the Applicant prepared for these proceedings, whether filed or not, or any of the matters referred to, mentioned, pleaded or cited in the documents that Mr Liu Fei lodged with the Board." By the terms of the agreement, the "Applicant" refers to Ms Doratis as Mr Fei's personal representative, the "Respondent" means the Department, and the "Board" means the Anti-Discrimination Board. 24Ms Sharp argued that the plenary terms of that release embrace the proceedings which Mr Fei has instituted in this court. That submission, however, begs the question raised by Mr Dilworth's argument. If it be the fact that the mediation should not have proceeded in Mr Fei's absence, and he should have been permitted to conduct negotiations without a personal representative, a question would arise whether the mediation agreement was valid and whether the Department could rely upon the release. Equally, if Mr Dilworth's argument were sound, Ms Sharp's third challenge to Mr Fei's summons, that it amounts to a collateral attack upon the Tribunal's decision not to revoke the appointment of his personal representative, would be beside the point. 25However, there is force in Ms Sharp's final submission, that a claim for relief in this court could not be sustained because an appeal (or application for leave to appeal) by Mr Fei to the Appeal Panel would be doomed to fail. Ms Sharp pointed out that the grant of prerogative relief is discretionary. She also noted that Mr Fei could not proceed in this court without amendment of his summons, that an order permitting amendment is itself discretionary, and that this court would decline to exercise that discretion where it is apparent that the amendment would be futile. 26As I have said, by s 113 of the ADT Act an appeal lies to the Appeal Panel as a right on a question of law, or by leave for a review of the merits of the decision challenged or if that decision is interlocutory. Magistrate Hennessey's decision not to revoke the appointment of Ms Doratis would appear to be the exercise of an interlocutory function, that expression being defined expansively in s 24A(1) of the Act. As noted above, in the notice of appeal said to have been prepared on 27 August 2010 Mr Fei indicated, by ticking boxes, that his appeal was made on a question of law and that he was also seeking leave to extend the appeal to a merits review. 27I have the transcript of his application to Magistrate Hennessey to revoke Ms Doratis's appointment. Her Honour heard from Mr Fei, who was not legally represented, and evidence was given by Ms Doratis and by Mr Fei's treating psychiatrist, Dr Law. Ms Doratis was legally represented, as was the Department, which took no position on the application. Her Honour summarised the material in her reasons, delivered on 4 June. 28Her Honour noted that the issue before her was whether Mr Fei continued to be an incapacitated person as defined in s 71(7) of the Act, in particular, par (b) set out above. If he were, her Honour said, the question was whether she should exercise her discretion to revoke the appointment of Ms Doratis. She observed that it was common ground that Mr Fei was a mentally incapacitated person within the meaning of that provision, a fact which he acknowledged. She noted, however, that it was his case that he was still "partially capable of representing himself in the proceedings." He had asserted that in the context of the mediation he "knew clearly what he wanted." His position was that, although he suffered from a mental disability, "he still knows what he wants, he still has wishes and in those circumstances he wishes to proceed with the mediation representing himself." 29Her Honour referred to the evidence of Dr Law, who had been treating Mr Fei since March 2005 for major depression with psychotic features, with a differential diagnosis of schizophrenia. He had prescribed a course of medication with which, it would seem, Mr Fei had generally been compliant. Nevertheless, his condition had fluctuated over the years. Dr Law had last seen him on 21 May 2010, only a matter of weeks before the hearing of the application. On that occasion he had described experiences of a paranoid delusional kind. 30Her Honour summarised the effect of Dr Law's evidence in this way: "Dr Law also said that Mr Lui Fei can still think logically much of the time however he doubts his ability to conduct a hearing by himself without legal representation. His final view was that he is a person at least partially incapable of representing himself." 31Ms Doratis, who is a retired clinical psychologist, had considerable experience acting as a guardian ad litem for people with mental health issues. In evidence she expressed the opinion that Mr Fei needed a guardian. She said that his emotional and mental state fluctuated, and that his behaviour had been "erratic, irrational and volatile at times." She had also noted some paranoid ideation. She said that at the time of the hearing he was taking medication and was more stable, but that he became aggressive or sometimes withdrawn when under stress. 32Her Honour concluded that Mr Fei was "a person who was partially incapable of representing himself because of a mental incapacity." She referred to the history of the proceedings, noting that the matter had been "one of the longest running complaints in the Tribunal" due, apparently, to the manner in which Mr Fei had conducted it. She found that Mr Fei was "not prepared to have his guardian resolve his complaint in his best interests." She was not satisfied "on the basis of the evidence that Mr Lui Fei has regained to any extent his capacity to represent himself", nor that "he is today capable of representing himself in the Tribunal either at a mediation stage or at the final hearing stage." 33In this court Mr Dilworth referred to the passage in her Honour's reasons, quoted above, in which she recorded Dr Law's reservations about Mr Fei's ability to conduct a hearing by himself "without legal representation." He questioned whether her Honour had confused the issue at stake, whether Mr Fei needed a guardian, with the disadvantage suffered by any litigant appearing without the benefit of legal representation. Plainly enough, the reference in s 71(7)(b) to the capacity of a person to represent himself or herself in proceedings before the Tribunal relates to the first of those considerations, not the second. A person who does not have the benefit of legal representation may still be capable of "representing himself or herself" in the proceedings, within the meaning of that provision. 34A fair reading of her Honour's reasons does not establish that her Honour fell into that error. This aspect of Dr Law's evidence arose from a question posed by counsel for the Department concerning Mr Fei's capacity to cope with the demands of a fully contested hearing if, in the event of the revocation of the appointment of Ms Doratis, "he had to take over the running of the proceedings himself." The question appears to have been posed upon the assumption, possibly well founded, that he would not have legal representation in the proceedings. Counsel for Ms Doratis pointed out the distinction between having a guardian and being legally represented, and it was in the light of that distinction that the evidence proceeded. 35Responding to the question, Dr Law said that it would be "very tough" for Mr Fei to conduct a contested hearing "himself without guardian help and without any legal representation ... ." Counsel for the Department then emphasised the distinction "between the guardian and the lawyers", explaining that the question was whether Mr Fei was "a person who was totally or partially incapable of representing himself." To this Dr Law responded, "my answer is that I think he is partially incapable." 36It was to this aspect of Dr Law's evidence that her Honour was referring in the passage from her reasons quoted above. It is clear to me that the doctor gave that last answer conscious of the distinction which had been explained to him. More importantly, there is no doubt that her Honour was well aware of the distinction and that, in arriving at her conclusion upon the whole of the evidence, she correctly addressed the issue raised by the definition of "incapacitated person" in s 71(7)(b). Mr Dilworth did not suggest that in any other respect her Honour's reasons disclosed error of law, and I can detect none. 37Furthermore, it appears to me that her Honour's conclusion was well open upon the evidence before her and I can see no basis upon which her discretion could be said to have miscarried. If an application to the Appeal Panel to review the merits of the decision were confined to the material which was before her Honour, I am satisfied that such an application would be bound to fail. Whether such an application would invite a hearing de novo, in which fresh evidence might be adduced, is not clear. Counsel were unable to refer me to any authority on that question. However, Mr Dilworth did not suggest that any fresh evidence might be available. 38I am satisfied that an appeal or application for leave to appeal to the Appeal Panel would have no prospect of success. That being so, I am also satisfied that an application by Mr Fei to recast his summons so as to seek prerogative relief of the kind propounded by Mr Dilworth would inevitably be dismissed as a futile exercise. Alternatively, if amendment of the summons were allowed, prerogative relief would be refused for the same reason. 39The proceedings brought by Mr Fei in this court are hopeless, and should be summarily dismissed. On 31 August 2010, there was resolved by mediation a dispute which had been on foot for eight years. Promptly thereafter, the Department paid the agreed amount to the solicitors representing Mr Fei's interest. Mr Dilworth told me that Mr Fei has never banked the cheque which those solicitors then forwarded to him, but that is not to the point. By making the payment to the solicitors the Department discharged its obligation under the agreement. A longstanding controversy has been settled by mediation, and should now be laid to rest. 40Mr Fei's summons is dismissed. If necessary, I shall hear the parties on costs.