Dezfouli v Justice Health and Forensic Mental Health Network [2015] NSWCATAD 11

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Dezfouli v Justice Health and Forensic Mental Health Network [2015] NSWCATAD 11 Hearing dates: 4 November 2014 Date of orders: 22 January 2015 Decision date: 22 January 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: N Hennessy LCM, Deputy President Decision: Leave is given for that part of Mr Dezfouli's complaint relating to access to take-away food to proceed. Leave is refused for that part of Mr Dezfouli's complaint relating to access to escorted day leave to proceed. Catchwords: ANTI-DISCRIMINATION – complaint of sex discrimination in the provision of services to forensic patients – complaint declined lacking in substance – whether fair and just for complaint to proceed Legislation Cited: Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act (NSW) 2013 Crimes (Administration of Sentences) Regulation 2008 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW) Cases Cited: Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Category: Principal judgment Parties: Saeed Dezfouli (Applicant) Justice Health & Forensic Mental Health Network (Respondent) Representation: Solicitors: S Dezfouli (Applicant in person) M Sterry, Solicitor (Respondent) File Number(s): 1410356

reasons for decision 1. Mr Dezfouli 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 had discriminated against him on the ground of his sex in breach of the Anti-Discrimination Act 1977 (NSW). Mr Dezfouli alleges that: 1. every 3 months female patients are allowed to order take away food to be delivered to them (such as Kentucky Fried Chicken, pizza or Chinese) to the value of up to $20 but male patients do not have that privilege; and 2. female patients are allowed to go outside the Forensic Hospital on escorted day leave but no male patient is allowed that privilege. 1. Mr Dezfouli has withdrawn that part of his complaint relating to the use of bicycles by female patients. 2. In previous complaints the Tribunal has appointed a guardian ad litem for Mr Dezfouli: Civil and Administrative Tribunal Act (NSW) 2013, s 45(4)(a). I decided not to do so for the purposes of the leave hearing because Mr Dezfouli has clearly articulated his complaint. 3. The 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, s 96; Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143. 4. The 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 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.