AF v Roads and Maritime Services (No 2) - [2012] NSWADT 210

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: AF v Roads and Maritime Services (No 2) [2012] NSWADT 210
Hearing dates: On the papers
Decision date: 16 October 2012
Jurisdiction: General Division
Before: P H Molony, Judicial Member
Decision:
1. Pursuant to s 71(4) of the Administrative Decisions Tribunal Act 1997 the Tribunal being, satisfied that AF is an incapacitated person within the meaning of s 71(7)(b,) appoints a guardian from the guardian ad litem panel to represent AF in these proceedings.
2. Liberty to apply with respect to hearing dates.

Catchwords: Incapacity - appointment of representative - guardian ad litem
Legislation Cited: Administrative Decisions Tribunal Act 1997
Cases Cited: AF v RTA [2009] NSWADT 274
AF v Minister for Health; Minister for Health v AF [2012] NSWADTAP 16
Crewdson v Central Sydney AHS [2002] NSWCA 345
Dezfouli v Corrective Services [2011] NSWADT 11
GA v The University of Sydney (GD) [2010] NSWADTAP 31
Roads and Maritime Services v AF; AF v Roads and Maritime Services (GD) [2011] NSWADTAP 63
Slaveski v State of Victoria and Others [2009] VSC 596
NZ v State of New South Wales (Department of Housing) [2009] NSWADT 165
Category: Procedural and other rulings
Parties: AF (Applicant, in person)
Roads and Maritime Services (Respondent)
Representation: AF (Applicant, in person)
King and Wood Mallesons (Respondent)

File Number(s): 073135 and 073275

REASONS FOR DECISION

Introduction

These reasons for decision consider whether or not the Tribunal should appoint a person to represent AF in proceedings that she has brought in the Tribunal under the Privacy and Personal Information Protection Act 1998, despite AF objecting to such an appointment. AF filed two applications with respect to 7 separate privacy complaints.

In these reasons the names of private individuals have been anonymised to protect their privacy.

The relevant law

Section 71 of the Administrative Decisions Tribunal Act 1997 relevantly provides -

(4) If it appears to the Tribunal that a party is an incapacitated person, the Tribunal may appoint any other person the Tribunal thinks fit to represent the party.

(5) Anything done or omitted to be done by a member of the Guardian Ad Litem Panel who is appointed by the Tribunal under subsection (4) to represent a party to the proceedings who is an incapacitated person does not subject the member personally to any action, liability, claim or demand if the thing was done, or omitted to be done, in good faith for the purpose of representing the incapacitated person.

(5A) However, any such liability attaches instead to the Crown.

...

(7)In this section:

Guardian Ad Litem Panel means the panel constituted as the Guardian Ad Litem Panel by the Director-General of the Department of Justice and Attorney General.

incapacitated person means:

(a) a minor, or

(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, or

(c) any other person of a class prescribed by the regulations for the purposes of this paragraph.

The operation of these provisions has been considered in a number of earlier decisions of this Tribunal, most comprehensively by Hennessy DP in Dezfouli v Corrective Services [2011] NSWADT 11 and NZ v State of New South Wales (Department of Housing) [2009] NSWADT 165.

An analysis of those decisions shows that the Tribunal has a discretion as to whether or not to make appoint a representative for an individual. Before exercising that discretion the Tribunal must be satisfied that -

(a) he or she is totally or partially incapable of representing him or herself in the proceedings; and

b) this incapacity has occurred as a result of at least one of the causes or reasons set out in the definition of incapacitated person (see Dezfouli at [4-5]).

The Tribunal has issued a guideline entitled APPOINTING A GUARDIAN AD LITEM: GUIDELINE which sets out the procedure for appointing a Guardian ad Litem (GAL) for a party to proceedings before it. That Guideline instructs -

2.3 The power in s 71(4) relates to the appointment of a GAL for any party to proceedings before the Tribunal.

2.4 An order appointing a GAL can be made either on the application of a party or on the Tribunal's own motion and should be made as soon as it is apparent that a party is under 18 years old or totally or partially incapable of representing himself or herself in proceedings before the Tribunal because of a

disability or advanced age.

2.5 Whether a person lacks capacity is a question of fact to be determined by the Tribunal on the basis of all the evidence.

In Dezfouli Her Honour explained, at [41-47] -

... courts have formulated tests for capacity in similar contexts and given examples of conduct which may indicate incapacity. The Tribunal's power to appoint a representative is based on similar policies to the power to appoint a tutor or litigation guardian in court proceedings. Those policies were expressed by Kennedy LJ in Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] 1 WLR 1511 at [31] as follows:

In the context of litigation, rules as to capacity are designed to ensure that plaintiffs and defendants who would otherwise be at a disadvantage are properly protected, and in some cases that the parties to litigation are not pestered by other parties who should be to some extent restrained.

42 In the same case at [65] Chadwick LJ also emphasised the dual policy objectives of appointing a representative for an incapacitated person:

The pursuit and defence of legal proceedings are juristic acts which can only be done by persons having the necessary mental capacity; and the court is concerned not only to protect its own process but to provide protection to both parties to litigation which comes before it. A defendant is entitled to expect that he will not be required to defend proceedings brought against him by a person of unsound mind acting without a next friend.

43 The Civil Procedure Act 2005 provides that a person, who is under a legal incapacity in relation to the conduct of legal proceedings, must act through a tutor: Part 7 r7.14. The District Court Rules 1973 provide that an incompetent person, that is a person incapable of managing his affairs, may not bring or make a claim, except by his tutor or next friend: Pt 45, r 5(3). In Murphy v Doman [2003] NSWCA 249, the Court of Appeal said at [35] in relation to self-represented applicants that:

The cases do no consider the level of mental capacity required to be a competent litigant in person but it cannot be less than that required to instruct a solicitor. It should be greater because a litigant in person has to manage court proceedings in an unfamiliar and stressful situation.

44 In that case, the Court of Appeal held at [37] that a plaintiff who had a psychotic illness and had lost touch with reality was incapable of managing the legal proceedings he was attempting to conduct on his own behalf. Mr Murphy had prepared lengthy written submissions but told the judge that he did not wish to tender them saying that it had all become too much for him.

45 The principles formulated in that and other cases were applied by the Supreme Court in Murray v Williams [2010] NSWSC 1243. The Court held at [26] quoting Masterman-Lister v Brutton & Co at [75], that the test to be applied to a person represented by a lawyer was . . . whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings. The Court decided that although Mr Murray had had a stroke and his ability to communicate was impaired, he was able to demonstrate that he understood the nature of the operation of a Will and that he did not want to change or challenge it. The Court held that Mr Murray was not a person under a legal incapacity.

46 In Slaveski v State of Victoria and Others [2009] VSC 596, Kyrou J found that a litigation guardian should be appointed for a self represented plaintiff who had an anxiety disorder. Mr Slaveski has sued 19 police officers and the State of Victoria seeking damages for various causes of action including assault and battery, wrongful arrest, false imprisonment, malicious prosecution, defamation, trespass to land, trespass to goods and negligence. During the course of a trial that had run for more than 20 days, Mr Slaveski had intermittently behaved in ways which Kyrou J described as disrespectful, argumentative and abusive. Kyrou J usefully identified the following issues as potentially relevant when determining whether a self-represented party is capable of representing himself or herself. These issues accord with the policy objectives and the legal tests that the courts have formulated when considering whether to appoint a person to represent a party with an incapacity.

(a) Does the plaintiff understand the factual framework for his or her claims and the type of evidence required to succeed in his or her claims?

(b) Is the plaintiff capable of understanding what is relevant to the proceeding and what is not relevant when these matters are explained to him or her?

(c) Is the plaintiff capable of assessing the impact of particular evidence on his or her case?

(d) Is the plaintiff able to understand the Court processes and the basic rules for conducting his or her case when these matters are explained to him or her?

(e) Is the plaintiff able to understand Court rulings made during the trial when they are explained to him or her?

(f) Assuming the plaintiff is able to understand Court processes, the basic rules of conducting his or her case and Court rulings, is he or she capable of complying with them and directions given by the judge?

(g) Does the plaintiff understand the roles of counsel for the defendant, witnesses and the judge and is he or she capable of respecting those roles and allowing the relevant individuals to discharge their duties without inappropriate interference or abuse?

(h) Is the plaintiff able to control his or her emotions and behave in a non-abusive and non-threatening manner when events do not go his or her way during the trial (such as when adverse rulings are made by the judge, questions are asked in cross-examination on sensitive issues or unfavourable answers are given by witnesses)?

(i) Does the plaintiff have an insight into the possible adverse consequences of his or her behaviour in court, including delay in the resolution of the claims, the defendant incurring additional costs that the plaintiff might have to pay if the claims are unsuccessful and the tying up of scarce judicial resources when these matters are explained to him or her?

(j) Does the plaintiff understand that he or she could possibly lose the case in whole or in part when this matter is explained to him or her?

(k) If the cumulative effect of the evidence is such that a lay person of reasonable intelligence and common sense would form the view that a particular claim will fail, would the plaintiff be capable of forming such a view?

(l) Is the plaintiff capable of assessing any settlement proposal on its merits, having regard to the state of the evidence, the parties' submissions and other developments in the proceeding as at the time the proposal is made?

(m) If the trial is long and complex, is there a risk that the stress and pressure of the litigation might harm the plaintiff's physical or mental health?

47 Based on the case law and the policy objectives of s 71(4), a person will be totally or partially incapable of representing himself or herself if, because of one of the disabilities listed in s 71(7), the person is unable to conduct the proceedings in a sufficiently competent, co-operative and objective manner. In determining whether a person exhibits those attributes to a sufficient degree, the Tribunal must be mindful of its obligations under s 73(4) of the ADT Act to take such measures as are reasonably practicable:

a) to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implication of those assertions, and

b) if requested to do so to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal that relates to the proceedings, and

c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings.

The history of the present proceedings

The proceedings are longstanding, having commenced in 2007. They have a complex and lengthy procedural history. The respondent has provided a chronology relating to the proceedings thus far which substantially accords with the Tribunal's records.

This includes an earlier application by the respondent to appoint a representative for AF. That application was determined, along with a series of other interlocutory applications, by Judicial Member Wilson on 29 October 2009 (see AF v RTA [2009] NSWADT 274). The other applications considered were applications by the respondent for summary dismissal of the proceedings, a misconceived application by AF to summarily dismiss the respondent's application for summary dismissal, and issues concerning the confidentiality of materials. The hearing of these interlocutory issues took 10 days; an extraordinary length of time to deal with such issues.

With respect to the application to appoint a representative the Tribunal found that AF was capable of representing herself in the proceedings. Judicial Member Wilson found that, at [29]-

The applicant has clearly demonstrated that she is able to prepare and present her case cogently and that she is able to put her mind to the issues raised by the respondent against the case she is arguing for. The medical evidence adduced by the respondent does not persuade the Tribunal otherwise. It is true that her written submissions do not always develop her points clearly, but she is able to do this in oral submissions. It is also true that the applicant does not present her arguments as concisely as a legal representative would be able to, but this is common amongst litigants appearing without legal assistance. However, these aspects do not persuade the Tribunal that the applicant is incapable within the meaning of the section.

In dismissing the respondent's application for summary dismissal Wilson JM observed that with respect to one complaint involving an issue going to jurisdiction, that at [15] -

Whilst the respondent's argument in the long run may prevail, an issue as to which the Tribunal makes no determination here, the point cannot be decided in the respondent's favour at this stage of the proceedings.

(This year an Appeal Panel decided a similar jurisdictional point adversely to AF in a related case: see AF v Minister for Health; Minister for Health v AF [2012] NSWADTAP 16.)

Subsequently, following a series of planning meeting and an abortive listing of the matter for hearing in February 2010, a further interlocutory hearing was heard over 4 days, between March and August 2010, concerning:

AF's application to dismiss the respondent's case and make default orders. This, in my view, was obviously misconceived and was refused.
AF's application to dismiss the respondent's legal advisors on the basis of improper and unlawful conduct. This too was refused, but reflects on the highly combative and confrontational stance AF has taken in her dealings with the respondent's legal advisors.
AF's application to issue a number of summons, some of which were allowed.

The decision of the Tribunal with respect to those matters was published on 4 April 2011, and the matter was listed for directions on 5 May 2011.

AF and the respondent subsequently appealed that decision to an Appeal Panel of the Tribunal. In the meantime the Tribunal made directions requiring AF to file and serve any additional evidence she relied on by 18 July 2011. The planning meeting was otherwise adjourned until 1 September 2011 to enable the appeals to be determined. That date was subsequently extended.

The Appeal Panel referred the proceedings for mediation which took place on 17 October 2011. It was unsuccessful.

On 21 December 2011 the Appeal Panel delivered its decision: Roads and Maritime Services v AF; AF v Roads and Maritime Services (GD) [2011] NSWADTAP 63. It determined that -

Appeal no. 119016 (by the agency)

1. The appeal is allowed in respect of the Tribunal's decisions to allow summonses to Mr Bushby, Mr Job and Mr Tout. The summonses are set aside.

2. The appeal is not allowed in relation to the decision affecting Mr Boggon.

Appeal no. 119020 (by the review applicant)

3. The appeal is dismissed.

Further Orders

4. The review applications are remitted to the Tribunal differently constituted.

5. The Tribunal is to hold its own directions hearing as soon as practicable.

The applications were then allocated for me, the previous member having left the Tribunal, under the explicit expectation - as expressed by the Appeal Panel - that the substantive matters be dealt with expeditiously.

They were listed for a directions hearing on 15 February 2012 but this was vacated by agreement because AF had filed a Notice of Intention to Appeal the decision of the Appeal Panel with the Court of Appeal. Instead they were listed for directions on 23 March 2012.

Before that directions hearing AF again requested an adjournment to enable her to seek leave to appeal. I declined that request.

At the hearing on 23 March 2012 I made it clear to AF that unless she obtained an order staying the proceedings pending appeal, I intended to proceed with the matter. At that hearing AF opposed the respondent calling the witnesses she had leave to summons, and objected to them preparing statements from those of them who are employees of the respondent. She expressed concerns that the witnesses would thereby be interfered with, and stated that it was her intention to call them herself. When I explained that if that were the case, she would not have an automatic right to cross-examine them, AF appeared not to understand. I urged her to obtain legal advice on the issue.

As AF said she was yet to file an affidavit in reply in the proceeding I ordered that she do so by 11 June 2012. I fixed the matter for further directions on 19 June 2012 at 2pm. That timing took account of the fact that AF was going overseas for part of that period.

On 13 June 2012 AF sought an extension of time in which to file her affidavit.

At the directions hearing on 19 June 2012 AF still had not filed her affidavit. She indicated that she still intended to apply for leave to appeal to the Court of Appeal and wanted the opportunity to do so. She sought a further extension of time. Having heard from both parties I made the following orders -

1. The Tribunal notes that:

a. The Applicant has advised the Tribunal she intends to apply to the Court of Appeal to seek an extension of time in which to appeal the decision of the Appeal Panel in this matter.

b. Any such appeal could impact on and render nugatory these proceedings.

c. The Tribunal has indicated to the Applicant that it is not prepared to delay or postpone the proceedings unless they are stayed, and that the Applicant should proceed to seek an extension of time and stay expeditiously.

d. The respondent does not intend to file any further written material or submissions.

2. Time is extended, for the last and final time, for the Applicant to file and serve her further affidavit, so that it must be filed and served on or before 6 July 2012. In the event that the Applicant fails to file and serve that affidavit on or before that date, she may not rely on it in these proceedings.

3. The Applicant shall file and serve any further written submissions she wishes to make by 8 October 2012.

4. This matter is fixed for hearing for 10 days commencing Monday 5 November 2012.

On 5 July 2012 AF wrote to the Tribunal seeking a further extension of time to 30 July 2012. On 6 July 2012 she filed an affidavit in support of that application for an extension of time.

At that time I was unavailable for some time due to illness and so the application for extension of time was referred to Deputy President Hennessy. She considered it on the papers. She refused to grant the extension of time, "given previous directions by Judicial Member and scepticism that applicant has capacity to file and serve evidence by 30 July 2012."

When I next reviewed the file in late July 2012 I was concerned by the contents of AF's letter of 5 July 2012 and of her affidavit of 6 July 2012. The letter of 5 July 2012 contained a number of statements by AF which suggested that she believed she was the target of a deliberate and conscious campaign to attack her personally, and to destroy her records in order to prevent her prosecuting her applications before the Tribunal. These were:

Her stated belief that she has been the subject of "deliberate attacks" on her person in her home, poisonings, and that her cardiovascular system and general health have been targeted "in order to prevent me to proceed (sic) with these matters before the Tribunal..."
Her statements concerning the difficulties she has encountered in using her own and the State Library's computers (including and as a result of attacks on them).
Her belief that as a result of her "disputes with the respondent, and other related disputes" she has been prevented obtaining money due to her, which she could have used to purchase a new computer and complete her affidavit on time.

AF's affidavit sworn on 6 July 2012 was even more concerning. Of particular concern were:

Her statement in paragraph 8 that, "On the basis of evidence available to me, I consider that I have been a subject of many targeted attacks, which I have reason to believe are in order to prevent me from filing the affidavit and the evidence...."
Her statement in paragraph 9 that there have been "deliberate actions (undertaken to harm my health and well being in order to prevent me form giving this evidence)".
Her belief expressed in paragraphs 12, 13, 14 and 15 that as a result of her dispute with the respondent "which has now been extended to other agencies and organisations, including agencies of the Australian Government" she has been the subject of attacks on "me and my reputation" including -

(a) That for "several years" she has been "targeted with toxic chemicals, toxic fumes, heavy metals , as well as electromagnetic field and possibly other types of radiation".

"Poisoning with some acidic substance" in her unit, which eroded her teeth and resulted in her sustaining four broken teeth.

(b) The presence of "white/gray/red powder or particals" (sic) in her unit since 19 June 2012 which resulted in severely infected gums, discharge, pain and weight loss.

(c) That her preparation of her affidavit was "interrupted with a number of computer intrusions and problems with relevant electronic files" which resulted in a large number of electronic files she intended to use in preparing her affidavit being inaccessible due to file errors.

(d) A "problem with the licence of the protection problem on [her] computer ..."

(e) That in the week preceding 6 July 2012 her two computers had stopped working with the loss of all data, and, as a result, are not repairable.

Her statements in paragraph 23 that:

(a) Evidence she wishes to rely on has "somehow" been "damaged and parts of it could not be read".

(b) "Some of my already filed evidence in the Tribunal has been changed in my copy, and some evidence has been replaced with evidence not filed by me."

As a consequence of my concerns I undertook a more comprehensive review of the file.

On 3 August 2012 I raised the issue as to whether AF is an incapacitated person within the meaning of s 71 of the Administrative Decision Tribunal Act 2007. On that day, at my request, the Registrar wrote to the parties as follows -

Judicial Member Molony has asked me to write to you and advise that he has formed the preliminary view that AF is an incapacitated person who is incapable of representing herself before the Tribunal in these matters.

Mr Molony has reached this preliminary view having had regard to:

1. The content of the Tribunal file including its lengthy procedural history, the numerous extensions of time sought by AF, and her multiple interlocutory applications.

2. AF's recent failure to file her affidavit evidence due on 6 July 2012 in accordance with the Tribunal's directions despite previous extensions of time.

3. The content of AF's hand written affidavit, seeking a further extension of time, sworn 6 July 2012 (copy attached), particularly her allegations concerning:

a. personal harm and attacks on herself over several years,

b. interference with her data and evidence, and

c. interference with computers she uses,

all for the alleged purpose of preventing her adducing evidence.

4. The content of AF's hand written letter to the Registrar dated 5 July 2012 (copy attached), particularly allegations of attacks on her person, and interference with her data and business affairs.

As a consequence of these matters Mr Molony is considering appointing a representative for AF, called a guardian ad litem (GAL), under s 71(4) of the Administrative Decisions Tribunal Act 1997. He is concerned that AF is psychologically or otherwise disabled and as a consequence is incapable of properly representing herself.

Section 71 relevantly provides -

(4) If it appears to the Tribunal that a party is an incapacitated person, the Tribunal may appoint any other person the Tribunal thinks fit to represent the party.

(4) Anything done or omitted to be done by a member of the Guardian Ad Litem Panel who is appointed by the Tribunal under subsection (4) to represent a party to the proceedings who is an incapacitated person does not subject the member personally to any action, liability, claim or demand if the thing was done, or omitted to be done, in good faith for the purpose of representing the incapacitated person.

(5A) However, any such liability attaches instead to the Crown.

...

(7) In this section:

Guardian Ad Litem Panel means the panel constituted as the Guardian Ad Litem Panel by the Director-General of the Department of Justice and Attorney General.

incapacitated person means:

(a) a minor, or

(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, or

(c) any other person of a class prescribed by the regulations for the purposes of this paragraph.

...

Please note that the Tribunal has issued a Guideline concerning the appointment of a guardian as litem, which can be accessed at the Tribunal's web site.

Mr Molony directs that AF notify the Tribunal and the Respondent within 14 days whether she consents to or opposes the appointment of a GAL.

If AF consents to such an appointment and has a friend or relative she would like appointed as her GAL, she should provide their name, contact details and details of the nature of their relationship with her, at the same time as she advises of her consent.

It should be noted that the Tribunal will have to satisfy itself that any proposed GAL is a suitable person to fulfil that role and will act in AF's best interest.

If AF consents to the appointment of a GAL and proposes a person for appointment, the Tribunal will make necessary directions concerning that process.

If AF consents to the appointment of a GAL, but has no person she wishes to nominate for the role, or if the Tribunal determines that her nominee is not suitable, then, if satisfied that a GAL should be appointed, the Tribunal will notify the Legal Services Branch of the Department of Attorney General and Justice and request that the GAL co-ordinator allocate a GAL for her.

If AF objects to the appointment of a GAL and wishes to provide a medical report or other evidence that demonstrates her capacity to represent herself, she may do so within 35 days of the date of this letter.

When advising of her objection to the appointment of a GAL she must, at that time, advise whether she will be filing any such reports or other evidence. In the absence of such advice, the Tribunal will proceed on the basis that AF will not be filing any evidence going to the issue of her capacity to represent herself.

Additionally, within 21 days, the Respondent shall advise the Tribunal and AF of its attitude to the Tribunal appointing a GAL for AF.

If the Respondent wishes to rely on any material relevant to the issue of AF's capacity to represent herself, that material should be filed and served within 35 days of the date of this letter.

When advising of its attitude to the appointment the Respondent shall also notify the Tribunal and AF whether it has any such material on which it will be seeking to rely. In the absence of such advice, the Tribunal will proceed on the basis that the Respondent will not be filing any evidence going to the issue of AF's capacity to represent herself.

If either party seeks to rely on a medical, psychological or other expert report going to AF's capacity to represent herself, prepared from today onwards, it must:

1. Comply with the Tribunal's Practice Note on Expert Evidence and Reports (PN 14/04 - also accessible on the Tribunal's web site).

2. Indicate that the author of the report has read and considered this letter and the attachments to it (AF's hand written letter of 5 July 2012 [9 pages] and her affidavit sworn 6 July 2012 [11 pages].)

Upon receipt of an objection from AF and of any material filed by the parties going to AF's capacity to represent herself, the Tribunal will then decide the process to be followed in determining whether of not to exercise the discretion to appoint a GAL for AF under s 71(4) of the Administrative Decisions Tribunal Act 1997.

Mr Molony has asked me to emphasise that his decision to consider appointing a GAL for AF has not been taken lightly. It is made in the light of the material before the Tribunal and his concern that it demonstrates that AF does not have the competence and objectivity necessary to properly represent herself, and that her ability to co-operatively participate in the proceedings is compromised.

In a lengthy letter to the Registrar dated 9 August 2012 AF did not respond to the letter of 3 August 2012. Rather, in summary, she complained that she had been misled by Registry officers as to what would happen with respect to her application for an extension of time. She considered the referral of that issue to Deputy President Hennessy, in my absence, a denial of natural justice and of procedural fairness.

After making a series of allegations concerning the Deputy President's integrity and competence, AF explained -

The variation of the timetable was mainly requested because someone has interfered with my preparation of information and evidence for these proceedings, in which in between the other, two computers at my home were destroyed by someone, and later a printer and a photocopier were destroyed as well, and I was not able to finalize the work. I also consider that someone has interfered with the Tribunal's files of the above matters and the evidence admitted by the Tribunal in these proceeding that also affected the preparation of this material.

The Tribunal should also consider that my main evidence and evidence affidavit were filed in these proceedings in 2008, and there was never a question about my capacity to file evidence, as my main evidence has already been filed in these proceedings. The Tribunal has used my evidence affidavit only as a working document to date, following the strong and continuous objection by the respondent to admit this evidence affidavit in these proceedings. I claim that this was mainly politically

motivated. I also claim that this was in order to prevent the proper admission of evidence in these proceedings which exposes some unlawful conduct of senior government officials. In light of this, and considering that there was also some further interference, misplacement, damage and disappearance of some of my evidence in these proceedings, I requested from the Tribunal to file a further affidavit, which supposes to clarify the disintegrated and missing evidence on the file, caused by what I consider is a neglect of the Registry of the Tribunal, and improve the efficiency of the proceedings at the final hearing.

I consider that in the above circumstances the only reason not to allow an extension of time for filing this affidavit was in order to prevent me from giving damaging evidence against some senior government officials and agencies; also to prevent me from pursuing my claims for some serious irregularities I discovered in some of the Tribunal's practices and guidelines and in the practices of other NSW Government agencies, which could potentially be very costly for the NSW Government.

On the basis of evidence available to me I also claim that there have been some specific attempts to prevent me from giving evidence, and interference with my evidence, against Mr Richard Boggon, Director Commercial Services of Roads and Maritime Services, NSW, and Ms Mary Grace, former General Manager Human Resources of the former Roads and Traffic Authority of NSW, which include evidence related to contraventions of law that impose serious consequences for the NSW Government, but also implicates agencies and senior officials of the Australian Government, including the former office of the current Prime Minister Julia Gillard.

I claim that the involvement of Deputy President Hennessy in the above matter and her further determination of my application without the knowledge and consent from both parties constitutes an extraordinary miscarriage of justice, and a denial of natural justice and procedural fairness to me. I also claim that it is a part of a premeditated and organised process to provide improper benefit to government agencies and government officials. The determination of Deputy President Hennessy has also prejudiced my case in these proceedings, for which she has not been directed to exercise the Tribunal's functions.

On the basis of some further evidence available to me I also consider that the involvement and determination of Deputy President Hennessy in these proceedings is a part of a premeditated process that involves a number of other organisations, agencies and individuals, who have created a large amount of false evidence in my name, in order to prevent me from giving evidence against the government agencies and officials involved in the above proceedings, and against some officials and agencies of the Australian Government. I further claim that they have the intention to arrange an appointment of someone to act on my behalf in these and other disputes, who will be able to cover up these false records and what has been done to me, in the name of the false premise that the person is acting for the best of my interest. I claim that the interference of Deputy President Hennessy in these matters is a profoundly sad event in the history of the judicial system of this country, and certainly has to be properly investigated further.

Further to the above, I would like to advise you that during my conversation with (a Tribunal officer) on 04 July 2012, I consider that (the Tribunal officer) has made some ungrounded assertions about my conversation, which on the basis of some evidence available to me, is part of a repetitive and deliberately organised action against me in order to prevent me from giving evidence. I also consider that these assertions are part of the premeditated process described above and in order to support actions undertaken by Deputy President Hennessy on 06 July 2012, and later by the Tribunal. After my conversation with (the Tribunal officer) some improper assertions were made by your officer (another Tribunal officer) as well. Please also consider that these by other entities who attempted to create false records about me for the purposes of these or other proceedings. Following this, and some further information I have received, I would like to advise the Tribunal that I have lost confidence in both Tribunal officers.

I have also noted a file note on the file of these proceedings that I have been contacted by the Tribunal by phone on 06 July 2012, and that a message has been left by a Tribunal officer on my answering machine. I would like to advise you that I have not received any phone message from the Tribunal officer, or from anyone else from the Tribunal on 06 July 2012, or several days after that. However, a message from the Tribunal officer appeared on my mobile phone during the second half of the week ending Friday, l3 July 2012, which for some reasons has been backdated to 06 July 2012. I am currently considering referring this matter for further investigations. However, I attended the Tribunal on 06 July 2012, and I filed an affidavit. I consider that the Tribunal officer saw me during this visit, however neither the Tribunal officer nor anyone else from the Tribunal told me that the Tribunal attempted to contact me by phone, that day, or that Deputy President Hennessy has been involved in this matter.

AF's response

AF responded to the letter of 3 August 2012 on 17 August 2012. She objected to the appointment of a GAL and sought suppression orders under s 75 of the ADT Act with respect to the issue of appointment of a GAL. She said that she intended to provide further material in response to my request and asked that I immediately "dismiss the process." Her letter argued that the consideration of a GAL -

... increases the risk to my safety and security, and provokes unlawful actions by others who I consider have intentions to prevent me from giving evidence in these and other proceedings, and consequently have interests the GAL to be appointed. I have substantial evidence that a large number of unlawful and criminal activities have been undertaken in this country as well as in my country of origin for a considerable amount of time, which also involve nearly all organisations where I have accounts and bills or those where I have them in the past, in order to create false evidence about me, which I have now realised has been created to support this process of appointment of GAL.

With the greatest respect to Judicial Member Molony, who might not be very familiar with all the issues related to these proceedings, and possibly improperly advised about the history and evidence in these proceedings, I claim that this process for appointment of GAL has been premeditated and organised for a considerable amount of time, and involves a large number of unlawful activities against me by third parties.

I would like to advise the Tribunal that on the basis of evidence available to me, and considering the way this preliminary view about the appointment of GAL has been formed and introduced, also considering the large number of serious procedural and other irregularities in these proceedings since 2007, and the improper involvement of Deputy President Hennessy in these proceedings, I have lost confidence in the integrity and capacity of the Tribunal to determine these matters in a just and fair way, and by lawful means. Consequently, I am currently also considering applying for a stay of these proceedings and referring some issues of serious concern to external enforcement and investigative agencies for further considerations. I have already requested an order from the Tribunal to refer these proceedings for investigation by the Police, however the Tribunal has so far failed to do this, and I consider that the situation has gotten worse. I also reserve my rights to forward some of my concerns to international agencies, and to request the presence of their representatives at the hearings in these proceedings if the process for appointment of GAL is not discontinued and dismissed.

3 , r

On the basis of evidence available to me I claim that the preliminary consideration to appoint GAL is also a political consideration, which aims to prevent me from representing myself in these proceedings and giving damaging evidence against agencies and government officials of the NSW Government and Australian Government in these and other proceedings It also aims to prevent me from pursuing my intended proceedings in the Supreme Court, which are also near to completion to be lodged.

I further claim that this process of appointment of GAL has been introduced to primarily provide benefit to, and prevent me from giving evidence against, Mr Richard Boggon, Director Commercial Services of the Roads and Maritime Services NSW and Ms Mary Grace, former General Manager Human Resources of the Former roads and Traffic Authority, also all other employees involved in these proceedings against whom I have claims for misconduct. This includes giving evidence about serious irregularities on infrastructure projects, practices and procedures in NSW, and other administrative irregularities of the roads and Maritime services NSW ( formerly Roads and Traffic Authority). This also further implicates agencies and senior officials of the Australian Government, including the former office of the current Prime Minister Julia Gillard and some of her current Ministers, who I consider have undertaken some improper and unlawful activities in order to assist and cover up unlawful activities of officials and agencies in the NSW Labor Government at that time, which has caused damage and loss in many aspects of my life, including to my reputation and the prospect of my career.

AF then stated that the delays in the proceedings were principally caused by the respondent who, she added, was responsible for most of the interlocutory applications. She concluded -

There have been a large number of further irregularities and claims I made against the respondent that are supported with solid evidence , which include, but are not limited to the following,

i. The Respondent contravened section 58 of the ADT Act.

ii. The Respondent and the Respondent's legal representative mislead the Tribunal and provided incorrect information to the Tribunal for the benefit of the Respondent and some employees of the Respondent.

iii The Respondent breached the Applicant's anonymisation.

iv The Respondent breached the confidentiality of these proceedings and improperly disclosed confidential information to third parties to these proceedings.

v. The Respondent and the Respondent's legal representative Mr Robinson has victimised the Applicant.

vi. The Respondent has undertaken unlawful actions against the Applicant in order to victimise her.

vii. The Respondent deliberately prevented the proper service of legal documents in these proceedings to the Head of the Agency.

viii. The Respondent's conduct of these proceedings has been vexatious. The Respondent's case lacking in substance, and the Respondent attempted to gain improper benefits by conducting improperly and unfairly.

ix. The Respondent's legal Representative has breached the Applicant's confidentiality, and provided to the Tribunal unlawfully obtained documents.

xi. Other improper and unlawful conduct of the Respondent.

My interlocutory proceedings were mainly related to the irregularities that occurred in these proceedings, and to the objections by the respondents to the summonses I have requested to be issued.

In light of the above I claim that it is completely unfair that the Tribunal has formed a preliminary view to appoint someone to represent me.

On 7 September 2012 AF again wrote to the Registrar alleging that the respondent had not responded to my request for its views with respect to the appointment of A GAL for her. She restated her objection to the appointment of a GAL and indicated she would, "like to support my very strong opposition to the appointment of GAL with my further evidence affidavits that I have prepared." Later she observed that three copies of this affidavit are more than "750 pages".

On 11 September 2012 AF filed her affidavit: with attachments it is approximately 11 cms thick.

In a letter dated 10 September and filed with the affidavit AF:

Claimed that the directions I made on 3 August 2012 denied her procedural fairness as they did not give her a right to reply.
Relied on the dismissal of the earlier application under s 71.

She wrote, with respect to the Registrar's letter of 3 August 2012, that -

I claim that in part 3, on page 1, my claims have been misinterpreted in the Registrar's letter, dated 03 August 2012. I clam that the misinterpretation has been made in order to improperly justify the appointment of GAL. I claimed that I have been a subject to criminal attacks by third parties because of my proceedings before the Tribunal and because of my other disputes, including those with the Australian Government. These I claim are criminal attacks and I am preparing to refer them to the enforcement agencies. They are not before the Tribunal for determination. I referred them to the Tribunal, as I consider that the recent directions by the Tribunal have increased the risk of these attacks on me. I consider that it's in the interest of the respondent and some employees of the respondent that GAL be appointed to represent me, and for me to be prevented from giving evidence against them. So, it is in their interest to prevent me from completing and filing my evidence affidavit.

I claim that issues referred to in part 4, on page I, are also criminal attacks on me for which I have solid evidence, and they are subjects that I intend to refer to the enforcement and investigative agencies. The explanation above in part 10 of this document, is also applicable to the issues in this part 4. I provided some evidence related to these issues in the pages 3 -12 of my Affidavit that was filed today.

AF's affidavit with attachments contained 755 pages. Of them the affidavit itself is 69 pages long. Paragraphs 1 to 67 of the affidavit can be viewed as a response to my request for evidence going to AF's capacity to represent herself. Simultaneously, they include a further application from AF to obtain an extension of time in which to file her further affidavit in the proceeding.

I note the following features of that affidavit -

AF complains that the Tribunal's management of her review has been procedurally unfair.
AF alleges substantial delays in the proceeding are the result of the respondent's conduct.
She complains that the respondent has commenced interlocutory proceedings "without solid grounds" but considers her interlocutory applications were necessary.
AF allegations that there are irregularities in and documents missing form the Tribunal files.
In explaining her failure to file her affidavit by 6 July 2012 AF wrote -

30 In my affidavit of 06 July 2012, I stated that two of my computers were destroyed during the preparation of the supplementary affidavit for these proceedings. After I filed this affidavit, my photocopier, printer, and scanner were also destroyed. On the basis of technical advice I have received and consideration of other circumstances, I have reason to believe that the computers and other equipment were destroyed by a third party. I also have reasons to believe that they were destroyed in order to prevent me to complement the supplementary affidavit.

31 I bought a new computer, and a new printer, scanner and photocopier, during the past few weeks. However, when I attempted to produce a second and third copy of the supplementary affidavit and annexures I have prepared, I realised that I was not able to photocopy these documents in any readable form. I was further advice that they have been probably sprayed with something that prevents the reproduction of these documents. Further to this, I had to go through hundreds of thousands of documents and computer files to identify new copies of more than 500 pages of documents of my supplementary affidavit, which I could photocopy, and produce three identical affidavits that are required for filing in these proceedings. I further identified some new problems with documents and evidence on the Tribunal's files that caused further difficulties during the preparation of this supplementary affidavit, which are explained further below in this affidavit.

...

35 . After the above direction was issued on 19 June 2012, I experienced a number of incidents, which I consider have been deliberately organised by someone in order to prevent me from filing any further affidavit and evidence in these proceedings on 06 July 2012, and to prevent me from pursuing these proceedings as a self-represented applicant. This consideration is also based on some other evidence that is available to me, including evidence from my country of origin, which I intend to forward to relevant investigative and enforcement agencies.

The balance of the affidavit addresses the issues in the substantive proceedings. While I do not intend to discuss AF's evidence with respect to the substantive issues in any detail, it is noteworthy that it covers many matters outside the scope of the present privacy reviews and includes many allegations of irregularities with respect to the work of the agency and its employment of engineers. AF alleges staff at the agency bullied and intimidated her. She makes a series of allegations relating to serious improprieties by a number of staff members, and effectively implies that persons within the agency took unjustified disciplinary action against her and conspired to ruin her reputation and terminate her employment.

It is to be noted that many of these allegations have no reasonable relation to the privacy complaints under review, and appear to be irrelevant to the matters requiring determination by the Tribunal. Further, I observe that while AF has exhibited to her affidavit a lengthy series of documents said to support her various allegations concerning by conduct by the respondent and its employees, she has not produced for consideration any material going to prove her allegations about attacks on her person or sabotage of her electronic equipment.

Finally, with respect to that affidavit, I note that AF has sought to take advantage of the opportunity to adduce evidence with respect to her capacity to represent herself by filing an affidavit that principally goes to substantive issues, without obtaining an extension of time. This speaks to her capacity to comply with and follow the Tribunal's directions.

I will not deal with the issues of an extension of time in these reasons as the respondent has not had an opportunity to respond. I confine myself to the issue of AF's capacity to represent herself.

The respondent's submission

The respondent argued that AF is at least partially unable to represent herself in the proceedings. The respondent acknowledged that the Tribunal had previously dismissed its application to appoint a representative for AF under s 71. In so doing, the respondent argued that I should have regard to material that was considered by the Tribunal at that time. This consisted of:

the Tribunal's own observation of AF's behaviour up to that time;
a report prepared by Mr Gregory Sawyer, clinical psychologist, dated 10 September 2004, together with his CV (now Exhibits R5 and R6);.and
an extract from the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV - now Exhibit R7).

In a letter to the respondent, copied to the Tribunal and Tribunal dated 12 August 2012, AF objected to the Tribunal having regard to the report from Mr Sawyer and the extract from DSM - IV. She alleged that the report had been illegally obtained.

The reality is that Mr Sawyer's report, while old, has been previously tendered in evidence in these proceedings and involves an assessment of whether or not at that time AF was suffering from a diagnosed psychiatric or psychological condition. The issue now under consideration is whether she is incapable or partially incapable of representing herself because she is intellectually, physically, psychologically or sensorily disabled, a mentally incapacitated person or otherwise disabled. A report from a qualified psychologist concerning whether or not she has a phsychological disorder (albeit 8 years old) is germane to that issue, especially when there are no other psychological or psychiatric opinions before the Tribunal. Accordingly I have had regard to Mr Sawyer's report, and to the extract from DSM -IV.

They are to be found in a sealed envelope on the Tribunal file marked "not to be opened other than by the member allocated" to the matter. As the member allocated I have looked at them and consider them relevant to the issues before me. Aside from the notation on the envelope, apparently made by Wilson JM, there is no suppression or non disclosure order made by the Tribunal with respect to report.

Mr Sawyer's report is an assessment with respect to a physiological injury claim made by AF, against the respondent, as a result of workplace harassment and bullying. Some of her complaints then are echoed in her most recent affidavit. Mr Sawyer prepared the report for the workers compensation insurer. In doing so he consulted with and interviewed AF, and spoke with officers of the respondent with respect to her claims. On the basis of all the material before him Mr Sawyer concluded that AF suffered from a narcissistic personality disorder. He concluded -

[AF] has presented as demanding, superior, non-empathic and lacking insight and when confronted in relation to her conduct and performance has become argumentative, hostile and resistant to direction. This behaviour has fostered negative dynamics emerging in the workplace marked by escalating conflict.

The DSM - IV criteria for Narcissistic Personality Disorder describes it thus-

A pervasive pattern of grandiosity (in fantasy or behaviour), need for admiration, and lack of empathy, beginning by early adulthood and present in a variety of contexts, as indicated by five (or more) of the following:

(1) has a grandiose sense of self-importance (e.g., exaggerates achievements and talents, expects to be recognized as superior without commensurate achievements)

(2) is preoccupied with fantasies of unlimited success, power, brilliance, beauty, or ideal love

(3) believes that he or she is "special" and unique and can only be understood by, or should associate with, other special or high-status people (or institutions)

(4) requires excessive admiration

(5) has a sense of entitlement, i.e., unreasonable expectations of especially favourable treatment or automatic compliance with his or her expectations

(6) is interpersonally exploitative, i.e., takes advantage of others to achieve his or her own ends

(7) lacks empathy: is unwilling to recognize or identify with the feelings and needs of others

(8) is often envious of others or believes that others are envious of him or her

(9) shows arrogant, haughty behaviours or attitudes

The respondent submitted that AF's demonstrated a number of these attributes and that her behaviour had "substantially worsened" since the determination of its s 71 application. The respondent pointed to the following conduct by AF in the course of the proceeding to demonstrate this -

(a) AF alleges that certain of the respondent's officers' actions whilst she was employed by the respondent "constitute slavery" and were "cruel, unlawful, [discriminatory] ... and was a denial of the human and civil rights to her" - and indeed that AF was subjected to "the greatest injustice ... that has been done to employees in the public sector in New South Wales"' and that these proceedings "has been the greatest injustice in the, I believe, one of the greatest injustice in the judicial system ".

(b) AF also alleges - and clearly believes that the respondent is complicit in a far-reaching conspiracy with other government entities to protect the respondent and its officers at her expense. They are set out later in these submissions.

(c) AF has used these proceedings to make sweeping and serious allegations about this conduct and this conspiracy both in writing and orally in the Tribunal against the respondent and its officers (as well as other bodies) that are irrelevant to the privacy complaints the subject of the proceedings. She has done so repeatedly and has continued to so despite repeated requests by the Tribunal that she confine herself to the matters in issue in these proceedings. Her allegations have recently intensified in their scope and severity (see further below).

(d) AF has a sense of entitlement and an assumption that others, such as the Tribunal and the respondent, will automatically comply with her demands; this is accompanied by a clear tendency to make lengthy and at times irrational written and oral submissions. See further paragraphs 39 to 44 below.

(e) The Tribunal has had difficulty moving the proceedings along in the face of aggressive and emotional behaviour by AF. These behaviours do not clearly appear on the transcript and the Tribunal should rely on its own observation of AF. The Tribunal will, however, have observed AF raising and lowering her voice significantly, becoming emotional without provocation or objective reason, interrupting and speaking or shouting over the presiding Member or the respondent's representative (particularly when she does not agree with what is said) and not accepting and following the Tribunal's directions in respect of how it would like to hear from AF and on what subject matter. For examples, see the transcript of 11 September 2008 at pages 68-70 and 86-89, transcript of 16 April 2009 pp 57-58 and p 65, and the unofficial transcript of 15 March 2010 p 22 1 15 to p 23 133, p 62 65, p 67.

The respondent's observations of AF's behaviour in hearing concur with my observations of her in the two directions hearing I have conducted.

Moreover, the respondent submitted that in addition to matters which I had have outlined above, there was further material that pointed to AF's inability to properly represent herself. This included a large number of allegations of deliberate interference with the proceedings in the period leading up the he allocation of the matter to me. They are fully set out in the submissions. Of particular concerns are allegations concerning the Tribunal including-

(a) AF's allegations that sound recordings of Tribunal proceeding has been interfered with to delete important submissions she has made - see Letter AF to the Registrar dated 5 February 2009 and complaint to the Appeal Panel in oral submissions on 12 September 2011; and,

(b) AF's complaints of deliberate interference with transcripts to the benefit of the respondent or some of its employees - Letters AF to Registrar 29 August 2008, 5 February 2009 and 30 March 2009; see also transcript 15 April 2009p51 12-14 and 130, p 70 1 39-42.

The respondent drew attention to the fact that during the first directions hearing before me, in March this year, when AF was seeking time in which to file her affidavit because she was going overseas, I pressed her for the dates of travel. She replied to the effect that -

I am travelling from tomorrow until 18 April 2012. However, my airline changed the date of my return ticket without my authorisation. I will have to cancel that, if I am to proceed with the NSW Court of Appeal proceedings."

On the same day she told me that she had a lot of problems in her life both here and overseas, and made references to the Commonwealth and the Prime Minister assisting in the disruption.

The respondent correctly pointed out that AF had not filed any evidence to support any of her many allegations, despite being offered the opportunity to do so.

The respondent characterised AF's submissions and evidence thus -

... AF's applications, correspondence and submissions (both written and oral) are, in the main, confused, repetitive, incoherent, lengthy and often irrational, and they rarely address the relevant subject matter. AF often departs from the relevant point to address side issues. She often attempts to give evidence from the bar table in respect of allegations of the most serious nature that are not relevant to the proceedings. She makes frequent and numerous demands on both the Tribunal and the respondent without a substantial attempt at constructive discussion, of a nature disproportionate to the relative insignificance of the relevant issues, which are often straightforward procedural points that should be dealt with expeditiously. She does so in the face of repeated instructions from the Tribunal to confine herself to the relevant.

...

AF makes multiple interlocutory applications at once and shifts from dealing from one to the other before the first is finished with, in the face of instructions from the Tribunal to the contrary.

Issues

In the light of the background it is necessary to decide whether:

whether AF is totally or partially incapable of representing herself in the proceedings;
whether this incapacity has occurred as a result of at least one of the causes or reasons set out in the definition of incapacitated person;
if yes to both, whether the Tribunal should exercise its discretion to appoint a representative for her.

Before doing so, however, I wish to shortly address two issues. The first is AF's claim that she has been denied procedural fairness because she has not been given an opportunity to reply to the respondent's evidence and submissions.

The issue as to whether or not AF is capable of representing herself was raised by me, using the Tribunal's own motion power to do so. While I raised the issue in proceedings to which both AF and the respondent are parties, it is not an application made by either of them. Given the nature of the s 71 issue I formed the view that both parties should be given an opportunity to address the issues and that this was not appropriate case in which to build into the Tribunal's initial timetable scope for evidence in reply. As it emerged both parties essentially relied on material already before the Tribunal and I can see no need to allow for a reply by AF.

Secondly, because there is no fresh evidence before the Tribunal in relation to the question of AF's capacity to represent herself, I have determined that this is matter that can be adequately determined in the absence of the parties, on the papers without a hearing, under s 76 of the Administrative Decisions Tribunal Act 1997. All the material relied on by the parties is already before the Tribunal. There are no new witnesses to cross-examine. Any hearing would thus be focussed on submissions which both parties have already had an opportunity to make in writing.

Is AF totally or partially incapable of representing herself in the proceedings?

Is the AF capable of understanding what is relevant to the proceeding and what is not relevant when these matters are explained to her? It is apparent from a perusal of the transcripts of earlier hearings and of the voluminous material filed by AF that she has little or no insight into what is relevant to the determination of her review applications.

Her most recent affidavit is a telling example of this. It covers, as does her previous material and submissions, a large body of evidence relating to her employment with the respondent. It includes numerous allegations of improper conduct toward her in the course of her employment, which are irrelevant to the matters to be determined. It is apparent that AF has a genuine sense of grievance with respect to her treatment as employee of the respondent, and is seeking to agitate those grievances under cover of her Privacy applications. Such attempts to use proceedings under the Privacy and Personal Information Protection Act 1998 are to be rejected: Crewdson v Central Sydney AHS [2002] NSWCA 345 and GA v The University of Sydney (GD) [2010] NSWADTAP 31.

It is also clear that throughout the hearing thus far Judicial Member Wilson made repeated efforts to direct AF to focus her attention on matters relevant to the issues for determination, and that AF has persistently and obdurately returned to matters which the Tribunal has ruled irrelevant. She has persistently raised side issues (e.g. the accuracy of the transcripts and claimed interference with the Tribunal file) and sought to insist they be dealt with, despite directions (which were clearly explained) to the contrary. She thereby diverted the proceedings from the consideration of relevant issues (see for example the Transcripts of 15 April 2009 regarding what were agreed errors in the transcript).

Having reviewed the voluminous documents filed by AF and considered the transcripts of earlier hearings I agree with the respondent that they are "in the main, confused, repetitive, incoherent, lengthy and often irrational, and they rarely address the relevant subject matter".

I am satisfied that AF is not able to discriminate between what is relevant to these proceedings, as opposed to her wider and expanding grievances against the respondent and those she associates with it.

Is the AF capable of assessing the impact of particular evidence on her case? AF has persistently sought to extend the ambit of her application to cover matters not relevant to the issues to be determined, and still seeks to agitate irrelevant issues. For example in her letter of 17 August 2012, quoted at para 33 above, she indicated her wish to use the proceedings to demonstrate misconduct and irregularities at the respondent agency, spreading to encompass the Federal Government). It is apparent that she is unable to discriminate between evidence that is relevant to the issues to be determined by the Tribunal, and that which applies to her wider grievances against the respondent and others. For example, her concerns about the employment conditions of engineers employed by the respondent are irrelevant to her privacy complaints, but are matters that she has provided detailed evidence about.

That inability to discriminate points to her being unable to assess the impact of particular evidence on her case.

Is the plaintiff able to understand the Tribunal processes and the basic rules for conducting her case when these matters are explained to her? AF has demonstrated a good understanding of the basic process of the Tribunal and has frequently relied on the concept of procedural fairness in order to insist that matters that she consider relevant be heard or determined, or that she be given time to consider a matter. She has a good understanding of the processes relating to the submission of evidence and the making of submission.

At the same time she has had persisting difficulties with understanding the concept of relevance which is essential to all those processes, and to the Tribunal's effective consideration of her applications. Her belief in the ever widening list of individuals she considers are involved in what she believes is the suppression of her attempts to obtain justice (of which there is no evidence), results in her deploying her knowledge of Tribunal procedure in an effort address that perceived interference. This results in the Tribunal's procedures being used in an effort to address irrelevant matters. Those processes are thereby effectively abused.

An examination of many of the material and submissions filed by her and of her numerous letters to the Tribunal, shows that they contain a large volume of irrelevant material, are repetitive, otiose and argumentative. Thus, while she understands the Tribunal's processes, she cannot implement them appropriately due to her beliefs. She wrongly thinks that these proceedings are an appropriate vehicle with which to expose misconduct and irregularities at the respondent agency.

Assuming AF is able to understand Court processes, the basic rules of conducting her case and Tribunal rulings, is she capable of complying with them and directions given by the judge? In my experience AF has considerable difficulty in complying with directions for the filing of evidence as is illustrated by the affidavit she was due to file by the extended date of 6 July 2012. Her attempt to file it under cover of a response to my call for evidence going to her capacity, when she had been refused an extension of time, speaks to her inability to comply with directions. This is so irrespective of the right and wrongs of the extension of time issue.

AF's explanation of the reasons for her inability to file the affidavit on time (deliberate attacks on her computer systems and those of the State Library) create wider concerns as to her connection to reality.

Both AF and the respondent agree that she substantially complied with timetables, before the matter was allocated to me.

The transcripts referred to by the respondent in its submissions also confirm my experience that AF persistently interrupts others in the course of proceedings and persists in doing so.

There are numerous examples in the transcripts of AF persisting with arguments and submissions despite the Tribunal ruling against her. An example of this occurred on 11 September 2008, before Wilson Judicial Member. When considering an objection to a tender of a document by AF the respondent's counsel asked for time to get instructions on the tender. The following interchange then occurred between AF and the Tribunal Member (&11-8-08 68.15 to 70.31)

APPLICANT: It's essential, your Honour, that I provided information, these documents to be collected, it's essential evidence to my dispute and this is unfair. Respondent is coming here providing affidavits whoever they like and whatever evidence they like, I am entitled to provide my documents.

ROBINSON: All I can say is-

APPLICANT: Which are essential, there are serious breaches - serious breaches, your Honour, that occurred. I am very much affected, all my life is affected. My career is affected, my reputation is affected and these managers

are on very high salary in the RTA, your Honour.

WILSON: Okay, you're right off the track at the moment, let's stay relevant. Okay. Stay on relevant-

APPLICANT: Your Honour, you have to - I am in the - under financial hardship, I - I - I can't manage the basic things for myself until these mangers are in the RTA and now my evidence is not accepted.

WILSON: All right.

APPLICANT: I'm sorry, your Honour, I apology but you have to understand-

WILSON: Sure. Okay. I'll give you a couple of-

APPLICANT: --some serious injustice has been done here.

WILSON: Okay. Now, are you in a position where you can listen to me?

APPLICANT: Yes.

WILSON: All right. This letter of 1 June 2007 hasn't been rejected yet,Mr Robinson has simply said he wants time to consider it to see whether it needs to go in. Okay. So-

APPLICANT: Your Honour-

WILSON: So we just have to wait and see what his response is.

APPLICANT: Your Honour, I object to that, I object to that--

WILSON: No-

APPLICANT: --because they like to dismiss my application-

WILSON: No, look---

APPLICANT: --they have a time, these documents, your Honour, were filed - were filed on 2 May 2008.

WILSON: I know they were.

APPLICANT: May, June, July, August, September, four months, they have four months to consider, I don't think so that we should give more than that, your Honour.

WILSON: Okay. ..

APPLICANT: They have four months to consider.

WILSON: All right. The position--

APPLICANT: It's unjust towards me, one and half year I'm here in this proceedings.

WILSON: You need to calm down and you need to do a couple of things. Firstly, listen to me; and secondly, this is not the place, this is not a soap box. Okay. This is not where you can say anything you feel needs to be ventilated in your overall quest against the RTA. This is a place where we've got to stick relevant matters. Okay. So I'm just going to keep saying that to you all the time because just to keep you on track and make relevant points.

APPLICANT: Yes-

WILSON: Now, the position is - now, this is the part where you listen to me that the matter is going to have to be adjourned for another hearing. If that's the case to my mind, it doesn't matter whether the RTA have had this for ten years, if the matter has got to be adjourned Mr Robinson wants some time to have a look at the document I'll give him time. It's as simple as that. If the shoe was on the other foot and you wanted time to consider something, I'd give you the same consideration. So what we're going to do with this particular document of 1 June 2007 is mark it for identification and on the next occasion when we come back well hear what Mr Robinson has to say about whether they object to the tender and whether they want to call any further evidence if it goes in or whatever. That's the way we go with that. So it's not the end of the day for the letter.

APPLICANT: Your Honour, it is for me. I am without a cent - salary at the moment and I consider these people completely responsible for what is happening currently to me. Now the respondent breach s 58-

WILSON: You say-

APPLICANT: --to delay the proceedings for-

WILSON: You say "these people" who do you mean?

APPLICANT: Sorry?

WILSON: You say "these people" are responsible.

APPLICANT: Involved in this claim and a number of RTA people.

WILSON: That doesn't tell me what-

APPLICANT: Sorry?

WILSON: That doesn't tell me what people you-

APPLICANT: I claim that these actions in relation to the documents-

WILSON: Back in 2000-

APPLICANT: --go to my current situation, have a participation in my current circumstances, which are detrimental for me, your Honour.

WILSON: All right.

APPLICANT: Four months they have to consider this and now we still have to postpone, your Honour.

WILSON: I remember you just told me that. The letter that you wrote to Mr Boggon goes from 417 through to 423 and there's some annexures, so it goes through to where?

APPLICANT: Yes, your Honour, it goes until 000429.

WILSON: 429. Okay. Those documents in the applicant's bundle of documents being a letter from the applicant to Mr Richard Boggon, B-O-G-G -O-N, 1 June 2007 being pages 417 to 429 will be MFI C in the proceedings. The documents have been tendered and they'll be subject to consideration by the respondent during any adjournment period that follows.

Other examples of refusing to comply with Tribunal rulings and directions, and of her talking over others can be found in the transcripts of 9 September 2008, at pages 19 to 20 (failing to address issues as directed - talking over member), and 15-April 2009, at pages 3 to 5, when AF refused to proceed without discussing transcript which she alleged had been deliberately altered.

A more recent example concerns Mr Sawyer's report which was found to be admissible and tendered in evidence during the proceedings relating to the s 71 application, over AF's objection. Despite that ruling AF has continues to argue that they inadmissible.

In my view AF has grave difficulty in complying with rulings and directions when they do not suit her.

Does AF understand the roles of counsel for the respondent, witnesses and the judge and is she capable of respecting those roles and allowing the relevant individuals to discharge their duties without inappropriate interference or abuse? As is apparent from the correspondence from AF that I have quoted above, AF's believes that a vast array of people and governmental agencies are engaged in frustrating her efforts to expose misconduct and irregularities within the respondent agency. Among those who she sees deployed against her, as part of this array, are staff of the Tribunal, the Tribunal members themselves, whose integrity, competence and independence she has questioned, and the respondent's legal advisors, against whom she has made serious of allegations of professional impropriety. She has questioned the cognitive capacity of counsel for the respondent (see transcript of 9 September 2008 at page 10) and accused him of victimization (15 April 2009 at page 6).

Her complaints about the Tribunal Members who have been involved in her case, the respondent representatives and Tribunal staff are all based on her "beliefs": beliefs for which she has adduced no proof, despite claiming she is in possession of such evidence and been given an opportunity to present and address it. Those complaints are, in my view, inappropriate and abusive. They question the integrity of the individuals involved without any basis for doing so. They display no understanding of the roles of those individuals, and point to the fact that AF believes that they are all engaged in a joint enterprise against her.

In my opinion those belief points to AF being unable to participate in the proceedings without inappropriately abusing and insulting legal representatives, Tribunal members and Registry staff.

Does AF have an insight into the possible adverse consequences of her behaviour in hearings, including delay in the resolution of the claims, the respondent incurring additional costs that AF might have to pay if the claims are unsuccessful and the tying up of scarce Tribunal resources when these matters are explained to her? There can be no doubt that AF's behaviour in the management and presentation of her applications has resulted in the proceedings being long and delayed. The sheer volume of material (substantially irrelevant) she has filed and the length of time taken in dealing with preliminary issues is ample evidence of this. While AF denied she is responsible for the delays, I agree with the respondent that the transcripts amply demonstrate that AF's continued interruptions, insistence in dealing with side issues, and incoherent and often irrelevant submissions, have been the substantial cause of those delays.

Thus far thirteen days of hearing have been devoted to this matter, with numerous directions hearings and planning meetings held in addition to those hearing days. I allocated a further ten days for the final hearing, in circumstances where the respondent's counsel indicate that twenty might be needed given his experience in past hearings. This matter has already consumed an extraordinary and inordinate length for a privacy matter, at considerable public and private cost.

AF has persisted with her entire case despite the cautions sounded by Wilson Judicial Member as to the weaknesses of her case, and in the face of repeated warnings about relevance.

AF clearly considers that her pursuit of the respondent agency is her foremost object, despite the costs and time involved, and has been unable to reign her enthusiasm in so as to properly and proportionately address the limited issues raised.

If the cumulative effect of the evidence is such that a lay person of reasonable intelligence and common sense would form the view that a particular claim will fail, would AF be capable of forming such a view? Warnings of this being a possible outcome were clearly sounded by Wilson Judicial Member n AF v RTA [2009] NSWADT 274. The outcome of AF's appeal in the related matter of AF v Minister for Health; Minister for Health v AF [2012] NSWADTAP 16, in which a similar issue as exists here, concerning the exemption from the definition of personal information of "information or an opinion about an individual's suitability for appointment or employment as a public sector official" was determined adversely to her, should have sounded a further warning.

Despite these warnings AF has pressed on with her application relating to the provision of information to Healthquest with vigour. An examination of the materials in issue would, in my view, demonstrate to a reasonable intelligent lay person, with common sense, that AF's privacy claims with respect to the provision of information by the RTA to HealthQuest have a real prospect of failure.

There is no indication that AF has even contemplated that possibility, and given her beliefs about the respondent's conduct and her drive to expose what she sees as its victimizations of her, I have no confidence that she has the ability to do so with any objectivity.

Is AF capable of assessing any settlement proposal on its merits, having regard to the state of the evidence, the parties' submissions and other developments in the proceeding as at the time the proposal is made? Given her stated belief regarding the respondent's actions against her and her desire to expose the wrongs she perceives it as having committed, I have no confidence that she is capable of considering any proposed compromise on its merits. Her beliefs that the respondent is behind efforts to harm her person and to sabotage her presentation of evidence reinforce this view. She is unable to assess issues objectively, and is driven by her subjective beliefs.

If the trial is long and complex, is there a risk that the stress and pressure of the litigation might harm the AF's physical or mental health? I have grave concerns for AF's mental health, as is apparent from my decision to consider appointing a GAL for her.

It is important to note that over the years it has taken for this mater to reach its present point, AF's stated beliefs have become increasing bizarre and out of contact with reality. From being a person who was highly resentful and angered by her treatment as an employee of the agency, making allegations of misconduct and maladministration, her beliefs have escalated to the point where she now sees the Federal Government, the Prime Minister, Australia Post, Tribunal Member's and Registry staff, all as part of a growing conspiracy against her. A conspiracy that she believes is going to extraordinary lengths to prevent her obtaining the justice she believes she is entitled to. She alleges she has been poisoned in her own home, deliberately irradiated, had computer facilities she uses (both personal and public) hacked, so that they were unusable, all in an effort to prevent her giving evidence about misconduct and maladministration within the respondent agency. Evidence which has little or no relevance to the issues to be determined in these proceedings.

I agree with the respondent that the AF's expressed bizarre belief indicate that her condition has deteriorated since Judicial Member Wilson considered its s 71(4) application. That deterioration parallels the progress of this and other litigation in which she is involved. Those beliefs are persecutory in nature and are without any apparent basis. They have escalated as her litigation has progressed.

As a consequence I am satisfied that there is a real risk that a lengthy and complex hearing of her applications might further harm her mental health.

Conclusion. It can be seen from the discussion above that I am satisfied as a result of her beliefs AF is unable to understand what is relevant to the proceedings, and is driven by a desire to achieve what she see as justice, in a forum in which she cannot ventilate many of the issues she wishes to. She does not understand the limits of the privacy jurisdiction exercised by the Tribunal. Her lack of understanding has led her to make irrelevant and confused submissions, and to waste a lot of Tribunal time and public and private resources. Her lack of understanding has also fed her beliefs that the constraints of relevance are deliberate attempts, at the behest of the respondent, to prevent her seeking justice. Her resentment and suspicion has widened from one focussed on the respondent to encompass a wide panoply of those she perceives as aligned with the respondent, including the Tribunal itself. At the same time she has voiced increasingly bizarre persecutory beliefs, which have no apparent basis in fact. If the situation continues to escalate, as it has while this litigation is on foot, there is increasing risk to her mental health.

As a consequence I consider that she is at least partially incapable of representing herself in these proceedings. She is unable to co-operate with both the Tribunal and the respondent so as to have the proceedings disposed of in a timely or efficient fashion, and does not have the insight or objectivity required to represent herself.

Has AF's incapacity occurred as a result of at least one of the causes or reasons set out in the definition of incapacitated person?

This requires a consideration of whether AF is intellectually, physically, psychologically or sensorily disabled, of advanced age, a mentally incapacitated person or otherwise disabled.

Of these, the material suggests that she is psychological disabled. Unfortunately, there are no recent psychiatric or psychological opinions concerning AF's psychological state before me. There is, however, an abundance of material in which she has voiced bizarre and persecutory beliefs that are impacting on her ability to represent herself in the proceedings.

Neither AF nor the respondent have provided the Tribunal with a recent medical opinion that addresses her capacity to represent herself, despite being given the opportunity to do so.

The respondent has drawn my attention to Mr Sawyer's report from 2004 which diagnosed AF as suffering from a narcissistic personality disorder. In the absence of any evidence to the contrary I accept that opinion. I also accept that AF behaviour in the management and presentation of her case before the Tribunal is consistent with a number of the diagnostic criteria for that condition, notably her sense of self importance and entitlement, as demonstrated by:

Her persistent demands that matters she perceives as requiring immediate attention be immediately dealt with;
Her assertions of fact with respect to victimisation of her, without any apparent acknowledgement of the need to provide evidence of them.
Her refusal to accept direction as to matters of relevance;
Her constant interruption of the Tribunal and the respondent's counsel;
Her apparent disregard for both the private and public costs of these unduly lengthy proceedings.
Her concern that the Tribunal file be ordered in the way she desires.

More concerning and troubling, even to a lay observer, are the bizarre persecutory beliefs expressed by AF with respect to a claimed series of deliberate attacks on her person and equipment, which she attributes to efforts by the respondent to prevent her obtaining justice. I will not outline those allegations again, but do emphasise their fantastic nature and the absence of any evidence to support them. In my opinion any reasonably informed lay observer on being appraised of them would immediately hold concerns as to AF's mental health and stability. In the ordinary meaning of the word, as opposed to a psychiatric or physiological meaning, her beliefs are "paranoid". They are clearly impacting on her behaviour and her decision making. Whether this results from her narcissistic personality disorder or from another condition that has resulted from it, or is associated with it, is not a decision I am qualified to make.

I am satisfied, however, that it results in AF being psychologically disabled and that her incapacity to represent herself arises from that condition.

Should Tribunal exercise its discretion to appoint a representative for AF?

In considering this question I do bear in mind that AF is a litigant in person and cannot be expected to have either the knowledge or understanding one expects of a trained lawyer. She is also entitled to whatever assistance the Tribunal can reasonably provide in making sure that she understands the legal issues involved in her case and the impact of relevant evidence (s 71(4) of the Administrative Decisions Tribunal Act 1997).

Sadly I am persuaded that despite the best efforts of all involved, especially Wilson JM, to explain to AF what is and is not relevant to the privacy issues in dispute, AF is unable to accept that guidance. She is on a road of her own making and is determined to agitate the issues she wants to ventilate. She will not take direction.

The path she is on has already consumed considerable Tribunal time and both public and private money. Well beyond what would normally be incurred in hearing and determining a privacy review such as that made by AF. The prospect of the proceedings consuming further large amounts of time and incurring considerably more costs, to no ones benefit or profit, are real while AF continues along her present path. I see no prospect of her diverting from it.

If the proceedings continue as they are AF risks facing a costs order of ruinous proportions.

At the same time I am satisfied that as the proceedings have continued AF's persecutory beliefs have escalated to the bizarre, and the persons she associates with her perceived persecution have grown in number and function. I consider her ongoing self -representation places her mental health at continuing risk.

To allow the proceedings to continue with AF representing herself is not in her best interest.

In all the circumstances I consider it appropriate to make an order appoint a representative for AF.

I realise that an appointment is likely to impact on the scheduled hearing and will grant liberty to apply with respect to the hearing dates.

Orders

Pursuant to s 71(4) of the Administrative Decisions Tribunal Act 1997 the Tribunal being, satisfied that AF is an incapacitated person within the meaning of s 71(7)(b,) appoints a guardian from the guardian ad litem panel to represent AF in these proceedings.

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Decision last updated: 16 October 2012

Medium Neutral Citation:	AF v Roads and Maritime Services (No 2) [2012] NSWADT 210
Hearing dates:	On the papers
Decision date:	16 October 2012
Jurisdiction:	General Division
Before:	P H Molony, Judicial Member
Decision:	1. Pursuant to s 71(4) of the Administrative Decisions Tribunal Act 1997 the Tribunal being, satisfied that AF is an incapacitated person within the meaning of s 71(7)(b,) appoints a guardian from the guardian ad litem panel to represent AF in these proceedings. 2. Liberty to apply with respect to hearing dates.
Catchwords:	Incapacity - appointment of representative - guardian ad litem
Legislation Cited:	Administrative Decisions Tribunal Act 1997
Cases Cited:	AF v RTA [2009] NSWADT 274 AF v Minister for Health; Minister for Health v AF [2012] NSWADTAP 16 Crewdson v Central Sydney AHS [2002] NSWCA 345 Dezfouli v Corrective Services [2011] NSWADT 11 GA v The University of Sydney (GD) [2010] NSWADTAP 31 Roads and Maritime Services v AF; AF v Roads and Maritime Services (GD) [2011] NSWADTAP 63 Slaveski v State of Victoria and Others [2009] VSC 596 NZ v State of New South Wales (Department of Housing) [2009] NSWADT 165
Category:	Procedural and other rulings
Parties:	AF (Applicant, in person) Roads and Maritime Services (Respondent)
Representation:	AF (Applicant, in person) King and Wood Mallesons (Respondent)
File Number(s):	073135 and 073275