Dezfouli v Pulley [2014] NSWCATAD 1

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Dezfouli v Pulley [2014] NSWCATAD 1 Hearing dates: 18 December 2013 Decision date: 17 January 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: Magistrate N Hennessy Decision: Leave is granted for Mr Dezfouli's complaint to proceed. The Tribunal appoints a guardian ad litem to represent Mr Dezfouli. The matter is listed for a case conference on 5 March 2014 at 11.30 am. Catchwords: ANTI-DISCRIMINATION - complaint of victimisation declined as lacking in substance - whether fair and just for complaint to proceed Legislation Cited: Anti-Discrimination Act 1977 Civil and Administrative Tribunal Act 2013 Health Services Act 1997 Mental Health (Forensic Provisions) Act 1990 Cases Cited: Bogie v The University of Western Sydney (1990) EOC 92-313 Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 Category: Interlocutory applications Parties: Saeed Dezfouli (Applicant) Dr Rafe Pulley (Respondent) Representation: Mr Dezfouli (in person) Avant Law Pty Ltd (Respondent) File Number(s): 131104

reasons for decision

Introduction 1Mr Dezfouli is an Iranian man who is a patient at the Forensic Hospital. He complained to the President of the Anti-Discrimination Board that his treating psychiatrist, Dr Pulley, had victimised him for lodging a complaint of race discrimination against him. Mr Dezfouli says that after he complained of race discrimination Dr Pulley proposed to change his medication to make him more manageable and less litigious. 2The President declined the complaint as "lacking in substance" and Mr Dezfouli has elected to have it referred to the Tribunal. Before his complaint can go ahead, the Tribunal must give its permission or 'leave'. The test when exercising its discretion is whether it is fair and just in all the circumstances to grant leave: Anti-Discrimination Act 1977 (AD Act), s 96; Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143. I have decided to grant leave for Mr Dezfouli's complaint to go ahead. 3The Tribunal's discretion to grant or refuse leave is 'entirely unfettered' but must be exercised judicially: Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors supra at [30]. The Court went on at [38] to say that: Whatever the contest between the parties might be, the question of leave must be determined having in mind the purposes of the Act, which includes precluding unlawful discrimination and to permit those who have been so discriminated against, a remedy. Given that the legislation does not require all complaints to be investigated and dealt with, this means that while on the one hand, an obviously meritorious complaint will not be refused leave, where, for example on the other, it is apparent that the complaint lacks substance, or where the complaint is already being redressed elsewhere, leave may be refused, if that is what justice dictates. 4This appeal was heard on 7 November 2013, but not decided until 17 January 2014. On 1 January 2014, the Administrative Decisions Tribunal was abolished and the jurisdiction to determine complaints under the Anti-Discrimination Act 1977 was assigned to the Administrative and Equal Opportunity Division of the NSW Civil and Administrative Tribunal: Civil and Administrative Tribunal Act 2013, Schedule 3, cl 3(1). In accordance with Cl 6 of Schedule 1 to the Civil and Administrative Tribunal Act 2013, this application is a "part heard" proceeding. 5In previous complaints the Tribunal has appointed a guardian ad litem for Mr Dezfouli: Civil and Administrative Tribunal Act 2013, s 45(4)(a). I decided not to do so in this case because Mr Dezfouli has clearly articulated his complaint. But I have decided to appoint a guardian ad litem in relation to the substance of these proceedings.