Dezfouli v Justice Health and Forensic Mental Health Network [2014] NSWCATAD 5

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Dezfouli v Justice Health and Forensic Mental Health Network [2014] NSWCATAD 5 Hearing dates: 17 January 2014 Decision date: 28 January 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: Leave for the complaint to proceed is refused. Catchwords: ANTI-DISCRIMINATION - complaint of disability discrimination declined as lacking in substance - whether facilitating the donation of a kidney to a stranger is a "service" provided by the respondent - 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 Act 2007 Cases Cited: Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 Category: Principal judgment Parties: Saeed Dezfouli (Applicant) Justice Health and Forensic Mental Health Network (Respondent) Representation: In person (Applicant) M Sterry, Justice Health and Forensic Mental Health Network (Respondent) File Number(s): 131103

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 Justice Health and Forensic Mental Health Network Inc, a statutory health corporation established under the Health Services Act 1997, has discriminated against him on the ground of his psychiatric disability by refusing to facilitate him donating one of his kidneys to a stranger. Mr Dezfouli says that Justice Health has refused his request because he is a forensic patient. 2The President declined the complaint as "lacking in substance" and Mr Dezfouli has elected to have his complaint referred to the Tribunal. Before his complaint can go ahead the Tribunal must give its permission or "leave": Anti-Discrimination Act 1977 (AD Act), s 96. I have decided to refuse leave for Mr Dezfouli's complaint to go ahead because facilitating a kidney donation is not a service that Justice Health provides and contrary to Mr Dezfouli's claim Australian citizens do not have a 'right' to donate an organ. 3The test to be applied in determining whether a compliant should go ahead is whether it is fair and just in all the circumstances to do so: Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143. In that case the Court held at [30] that the Tribunal's discretion to grant or refuse leave is "entirely unfettered" but must be exercised judicially. 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. 4The President of the Anti-Discrimination Board referred this application to the Tribunal on 21 October 2013 but it was not heard 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). 5In previous complaints the Tribunal has appointed a guardian ad litem for Mr Dezfouli: Civil and Administrative Tribunal Act, s 45(4)(a). I decided not to do so in this case because Mr Dezfouli has clearly articulated his complaint and there is no doubt that it lacks substance.