Complainant 201707 v The Australian Capital Territory - [2019] ACAT 1

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COMPLAINANT 201707 v THE AUSTRALIAN CAPITAL TERRITORY (Discrimination) [2019] ACAT 1

DT 7/2017
Catchwords: DISCRIMINATION — scope of matters to be considered by Tribunal upon referral — self-represented complainant — test for litigation guardian — actions by care and protection workers under the Children and Young People Act 2008 leading to emergency action — were activities of workers a ‘service’

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 9, 29, 30, 39
Children and Young People Act 2008 s 866
Discrimination Act 1991 ss 7, 20
Human Rights Commission Act 2005 ss 53A, 78

Subordinate

Legislation cited: ACT Civil and Administrative Tribunal Procedural Directions 2010 (No 1)
Cases cited:Clarey v Permanent Trustee Co Limited & Anor [2005] VSCA 128
Commissioner of Police v Mohamed [2009] NSWCA 432
IW v City of Perth and Others (1996-97) 191 CLR 1
L v Human Rights & Equal Opportunity Commission [2006] FCAFC 114
Legal Practitioner v Council of the Law Society (No 2) [2014] ACTSC 352
Murphy v Doman [2003] NSWCA 249
Owners of Strata Plan No 23007 v Cross, in the matter of Cross [2006] FCA 900
Rainsford v Victoria [2007] FCA 1059
Slaveski v State of Victoria [2009] VSC 596
Waters and Ors v Public Transport Corporation (1992) 173 CLR 349
Wood v Calvary Health Care ACT Ltd [2006] FCA 1433
WSOL v John James Memorial Hospital [2011] ACAT 81

Tribunal:Presidential Member MT Daniel
Member E Trickett

Date of Orders:  3 January 2019
Date of Reasons for Decision:         3 January 2019
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          DT 7/2017

BETWEEN:
COMPLAINANT 201717
Applicant

AND:
THE AUSTRALIAN CAPITAL TERRITORY
Respondent

TRIBUNAL:Presidential Member MT Daniel
Member E Trickett

DATE:3 January 2019
ORDER

The Tribunal orders that:

The complaint is dismissed.

………………………………..
Presidential Member MT Daniel
For and on behalf of the Tribunal

REASONS FOR DECISION

Background

On 16 February 2017 the applicant made a discrimination complaint to the Human Rights Commission (HRC) about the conduct of the Director-General of the Community Services Directorate. The complaint referred to interactions between staff of the Directorate (the staff) and the applicant on 23, 24 and 25 September 2015, which culminated in the taking of emergency action in relation to children of the applicant under the Children and Young People Act 2008 (CYP Act). The applicant asserted that these interactions had involved unlawful discrimination on the basis of his mental disability, due to an acquired brain injury.
The HRC closed the complaint on the basis that it was lacking in substance, pursuant to section 78(2)(c)(iv) of the Human Rights Commission Act 2005 (HRC Act). The applicant then requested that the complaint be referred to the tribunal under section 53A of the HRC Act. On 31 May 2017 the HRC referred the complaint to the tribunal, providing copies of the original complaint (with attachments), the request for referral and the correspondence of the HRC to the applicant and Directorate notifying them of the referral.[1]
[1] The HRC does not provide to the tribunal any response given by the respondent, or material exchanged in the context of conciliation of the complaint
The crux of the applicant’s discrimination complaint is that by reason of his acquired brain injury he required an advocate to be present in his dealings with the staff, and that the ramifications of the process underway should have been explained to him in a way he could understand.

The events of 23, 24 and 25 September 2015

The applicant gave oral evidence of the events which form the basis of his discrimination complaint. Also before the Tribunal, but untested in these proceedings, are witness statements of caseworkers involved in the events in question. For current purposes, the Tribunal has relied upon the version of events given by the applicant which is set out below, although it may owe as much to reconstruction as genuine memory.[2] It is not inconsistent with the witness statements.
[2] See paragraph 36 below
On 23 September 2015, the applicant left his six year old son in a parked car outside 11 Moore Street. The applicant says he left the keys with the child. The child was observed by a caseworker from the Directorate, and one of the staff ultimately called the Australian Federal Police (AFP). When the applicant returned to the car,[3] it was to find the AFP there. The applicant says that after his initial discussion with the AFP a caseworker approached him and asked where he had been, and told him he could not leave his son in the car. The applicant told her the child had the keys. The AFP then advised the applicant that he would be arrested for driving while disqualified. At this point, the applicant said to the caseworker (he thinks) that she was in the same building as his advocate — the ACT Disability, Aged and Carer Advocacy Service (ADACAS) —and told her to get ADACAS. The caseworker said she would not, but that she would take his son into a room as the applicant was apparently under arrest. The applicant said that five ladies then came downstairs and took his son into a room, and then the AFP let him go into the room as well. After some discussion about leaving the child in the car, the AFP said they thought the car was stolen, and that they would arrest the applicant on that basis.[4] The AFP asked the applicant if he had a lawyer, and the applicant said he did not but could ring the ombudsman or public trustee. The applicant was then arrested, but was able to make arrangements for his son to be collected by a friend.
[3] He says 20 minutes later, the caseworker estimated 40 minutes later
[4] The car was a hire car which allegedly had not been returned by the applicant as required
The applicant said that if present on 23 September 2015 ADACAS would not have said anything different to or more than the applicant said to the AFP or the staff, but that ADACAS would have verified what he said.
On 24 September 2015, care and protection workers attended the applicant’s home and inspected it. There was little conversation with the applicant, before the applicant’s wife arrived home, and it was agreed that there would be an appointment between the applicant, his wife and the staff the following day. The applicant understood from this conversation that the caseworker was prepared to ‘get together’ with ADACAS.
The applicant said that if ADACAS had been present on 24 September 2015, it would have saved the applicant from having to go through traumatic memory to answer questions, and he would not have been taken by surprise by the home visit. ADACAS would have “been a barrier” between the applicant and the staff. It did not occur to the applicant to call ADACAS himself on that day.
The staff attended the applicant’s home again on 25 September 2015. His wife was present. The applicant said his wife and the case worker talked about the children; he was not involved in that conversation as he did not see it as his role to talk about the children. At one point a question was asked about the applicant’s name change — and he asked how that would have an impact. Other than that interaction, the applicant had little to no discussion with the staff. The applicant and his wife were asked to sign an agreement for an appraisal, but declined to do so.
The staff then left the house, but returned not long afterwards, having decided to take emergency action, accompanied by the AFP. The situation escalated, and a number of other persons known to the applicant attended the premises attempting to mediate the situation, unsuccessfully. Ultimately, late that night, the children were taken into care.
The applicant said that he made a number of other phone calls that night but he did not call ADACAS himself or think to call them — he said if he had known how serious the situation was he would have called them. He said that also, later in the evening ADACAS would have been closed. He said he initially did not feel an emergency phone call needed to be made because his wife was doing the talking.
The applicant said that if ADACAS had been present on 25 September 2015 they would have advised him not to talk to the caseworkers, they would have explained to the applicant that the matter was serious, and they would have facilitated an outcome where the children were not taken into emergency care but other arrangements (such as respite care) called upon.

The issues

The issues raised in this case were:
(a)the scope of the complaint (and thus the extent of the Tribunal’s inquiry);
(b)whether the applicant had a protected attribute at the time of the events complained of;
(c)whether the actions of the staff constituted a ‘service’ under section 20 of the Discrimination Act 1991 (Discrimination Act); and
(d)whether the applicant required a litigation guardian for these proceedings.
We will deal with the last issue first.
It is worth setting out in some detail the preparation for the hearing and the way in which the hearing unfolded, because the applicant’s ability to comply with directions and manage his behaviour in the hearing are some of the factors to which the Tribunal has had regard in considering whether a litigation guardian was necessary.

Preparation for hearing

The matter came before the Tribunal for an initial directions hearing on 19 June 2017. The applicant represented himself. A number of procedural matters were dealt with:
(a)The name of the respondent was corrected to The Australian Capital Territory.[5]
(b)The complainant was directed to provide particulars of his complaint of discrimination, and the respondent was directed to provide a response to the particularised complaint.
(c)To ensure that the preparation of these documents did not contravene provisions of the CYP Act in relation to protected and sensitive information, the Tribunal also made orders under section 866 of that Act requiring the production of such documents for these proceedings.
(d)The Tribunal also made orders pursuant to section 39 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) for the hearing to take place in private, restricting publication of evidence or matters contained in documents that could identify the complainant or the children, and restricting access to the file or record of the proceedings except by further order of the Tribunal.
[5] The correspondence from the HRC indicates that the complaint of 16 February 2017 had been taken to be a complaint against the Directorate, rather than the Director-General
The parties complied with these directions, albeit with some slippage by the applicant in relation to the time frame, and the matter came before the Tribunal for further directions on 4 September 2017. On that day the applicant represented himself again. Directions were made for the next stage of preparation: the applicant and respondent were to each file a timeline of events, and witness statements. Further, orders were made under section 866 of the CYP Act in relation to those documents. These directions were ultimately complied with, after some delay by the applicant and the holding of a further directions hearing on 20 November 2017, at which the applicant represented himself, to discuss compliance.
The next directions hearing was held on 5 February 2018. At that directions hearing there was no appearance by the applicant. The applicant was directed to file any further evidentiary material or submissions in support of his case by 19 March 2018, the respondent to do likewise by 9 April 2018. The respondent was directed to also file with the Tribunal an index of documents for the hearing, setting out the documents and submissions filed with the Tribunal and relied upon by each party. The matter was listed for hearing over 4 days from 30 April 2018 to 3 May 2018.

Hearing Day 1

When the hearing commenced on 30 April 2018 the Tribunal started by confirming the material that each party wished to rely upon. This process was greatly assisted by the index of documents which had been prepared by the respondent. It is worth noting that the index runs to 15 pages and consists almost entirely of documents filed by the applicant. Five of the listed documents were filed by the respondent.
The applicant had also sent seven emails to the Tribunal on 23 and 24 April 2018, attaching 13 additional documents. He confirmed he wished to rely upon this material in addition to the material he had filed earlier. The respondent accordingly provided a supplementary index listing those documents.
Key documents in the two indexes relied upon by the applicant included:
(a)the discrimination complaint form of 16 February 2017, with its attachments;
(b)the applicant’s statement setting out the grounds of discrimination;[6]
(c)the applicant’s emailed submissions (in three parts);[7]
(d)audio and transcripts of conversations between the applicant, caseworkers and others on the dates in question; and
(e)medical evidence about the applicant, covering a range of dates and prepared for different proceedings or purposes.[8]
[6] Being the email of 11 August 2017
[7] Applicant’s email submissions 2 November 2017, 6 November 2017 1:26pm and 6 November 2017 1:40pm
[8] For example, medical reports in 2006 relating to his compensation claim after the accident in which he acquired a brain injury, reports prepared in 2016 and 2017 for the Childrens Court proceedings, and reports prepared in 2017 and 2018 for the NDIS
The remainder of the documents provided by the applicant were diverse in nature and the bulk seemed to have little relevance to the discrimination proceedings. Documents included those referring to the Childrens Court proceedings, the applicant’s involvement and disagreements with The NSW Trustee and Guardian and the ACT Public Trustee and Guardian, criminal proceedings involving the applicant and a referral for a fitness to plead assessment by the Magistrates Court of the Australian Capital Territory, the applicant’s involvement with the NDIS, invoices for expenditure, correspondence with various politicians, documents relating to difficulties with the applicant’s tenancies in NSW and the ACT, and documents and photographs demonstrating that the applicant had been to Geneva to attend the United Nations over recent months.
The applicant also provided to the Tribunal and sought to rely upon numerous extracts of United Nations Committee decisions. In one covering email of 24 April 2018 the applicant explained:
I also be relying on the submissions and citation that I have sent what part of the attachments part of my submission that Australia has been cautioned a number of times by the United Nations human rights commission in order to dockets laws and the doctor decisionmakers to Dr laws so therefore be asking president Daniel to power herself with the submissions and read them carefully apply these laws that already charged as part of Australia signatory to the United Nations which must be implemented and the court does have powers under these charters in order to make decision in this matter I will be aurally submitting further arguments in regarding this argument and I do object to the whole entire argument of the respondent therefore does not have essence of their argument well in fact it is nothing but a fishing exhibition in order to discuss this burden the whole entire case into chaos[9] (errors in original)
[9] Email of applicant 24 April 2018 11:06am
As is apparent from this email, the applicant uses a voice to text function on his smartphone which, while convenient for the author, results in his written communications being difficult to understand.
The respondent did not object to any of the documents filed by the applicant being considered by the Tribunal, but indicated it would question the relevance and weight that could be placed upon much of the material.
In its case, the respondent sought to rely upon three witness statements,[10] the response to the complaint, and written submissions. The applicant said he objected to the statement of Ms Cesira Mussato, and submitted that little weight should be put upon statements contained within it.
[10] The statement of Cesira Mussato, affidavit of Kira Barbaric and statement of Thomas Charles‑Jones
Having identified the material on which each party relied, the Tribunal then heard an opening statement from the applicant. During this the Tribunal clarified with the applicant the orders he would ask the Tribunal to make if he were successful in demonstrating that he had been subjected to unlawful discrimination.[11]
[11] Although the applicant had filed an email on 11 August 2017 setting out the particulars of unlawful discrimination and the orders sought, this document, which ran to nine closely typed and largely unpunctuated pages, was not entirely clear on this point. The applicant had noted in a later email that he would correct spelling errors on a later day, but this did not happen
The applicant advised that if successful he would seek:
(a)a finding that he was discriminated against on the basis of his disability when his children were removed from his care as he did not have an advocate/support person present during certain interactions with the caseworkers;
(b)reform of accountability in care and protection processes, perhaps through a recommendation from the Tribunal to the ACT Government that the HRC perform a role in overseeing the taking of emergency action;
(c)a direction that the HRC provide a program of training for care and protection staff about the interests of family, particularly when one parent has a disability; and
(d)payment of a sum of money as monetary compensation.[12]
[12] When pressed, the applicant suggested $105,000 as an appropriate figure. The multiple invoices filed by the applicant were submitted to be relevant as demonstrating the loss he had suffered as a consequence of the events in question
The applicant provided the Tribunal with a copy of a decision of another jurisdiction involving him as an example of a case in which orders of a similar kind had been made.
The applicant confirmed that the protected attribute upon which he relied was his mental disability by reason of acquired brain injury, and provided the Tribunal with a psychometric report in that respect.
Counsel for the respondent then provided an opening submission. Counsel gave an overview of the facts, and submitted that because of the many issues listed in the complaint form, the scope of the matter should be delineated, and then the threshold issue of whether a good or service had been provided dealt with as a preliminary point.[13] Counsel submitted that the most efficient way forward would be for the applicant to provide his oral evidence, and then for the Tribunal to hear submissions on and consider these preliminary issues.
[13] Both the response and written submissions of the respondent had identified these preliminary issues
This course was not objected to by the applicant, and the Tribunal agreed to adopt this approach on the following days of the hearing.
Finally, prior to the hearing on 30 April 2018 concluding, the Tribunal raised with both parties its concern about the medical evidence of the applicant’s disability, both at the time of the events in question and currently. This was for two reasons. First, the respondent admitted that the applicant had an acquired brain injury, but did not admit the extent of that injury. This issue could be significant when the Tribunal was considering whether the treatment of the applicant was unfavourable. Secondly, the material relied upon by the applicant detailed the applicant’s need for a litigation guardian or person to manage his affairs at various points in time and this, together with the nature of the complaint, squarely raised the question of whether he was sufficiently legally competent to represent himself at the hearing.

On the latter point, the applicant explained to the Tribunal that he was better now than he had been previously. He said that the only medication he was currently on was Ibuprofen. He said he had completed a diploma of travel and tourism in Sydney, was currently participating in the NDIS and his plan under the NDIS was to reduce his medication so that he can be functional and work. He said he had updated his trade certificates, and was seeing a psychologist, Dr Jeeawody, under the NDIS.

Hearing Day 2

When the hearing resumed on 1 May 2018, the applicant tendered ten more documents. These largely consisted of medical reports and legal documents relating to the applicant’s disability. All of the medical documents were dated 2014 or earlier.
The applicant then proceeded to give oral evidence. He recounted the events of 23, 24 and 25 September 2015, largely uninterrupted, for close to two hours. After the luncheon adjournment, the applicant was asked questions by Counsel for the respondent. He said that due to his acquired brain injury his memory of events is not good, but it is a bit better since he ceased medication. He said that he had bought voice to text software for his phone, and used it to make notes. He said that he listens to the phone notes and rehearses. He said he had stayed awake all the previous night and listened to the notes on his phone to prepare to give evidence.

Hearing Day 3

On the third day of the hearing, 2 May 2018, the applicant tendered a number of other medical reports and explained to the Tribunal how his acquired brain injury had affected him over time.
The Tribunal then heard submissions from the respondent on the preliminary issues of scope of the complaint and provision of a service, and the procedural issue of whether the applicant was legally competent and, if not, whether the determination of the preliminary issues should await appointment of a litigation guardian.
When the matter resumed after lunch on day three, the applicant became suddenly unwell and was unable to provide his submissions on these points. The Tribunal accordingly reserved its decision on the preliminary issues, with the following directions:
1. The complainant is to give to the Tribunal and the respondent by 16 May 2018:
a.any medical or expert report he wishes to rely upon which addresses his legal competence in these proceedings, dated no earlier than 2018;
b.written submissions as to what [whether] a litigation guardian should be appointed by reference to the matters set out in Slaveski v State of Victoria [2009] VSC 596;
c.written submissions in relation to the preliminary issues as to;
i.the scope of the complaint referred to the Tribunal;
ii.whether the conduct complained of constituted a "service" under s.20 of the Discrimination Act; and
iii.whether the Tribunal can be satisfied the complainant had in fact a disability and if so, the extent of that disability at the relevant times on 23, 24 and 25 September 2015.
2. If the complainant files further medical evidence under order 1, the respondent may file further submissions on the issue of appointment of a litigation guardian by 23 May 2018.
The applicant sent 15 emails to the Tribunal between 2 and 15 May 2018. None of the documents filed could be described as submissions as contemplated by the orders of 2 May 2018. There was some updated medical evidence.
On 17 May 2018 the applicant emailed the Tribunal in relation to the orders made on 2 May 2018, seeking an extension of time to file submissions “as I intend to obtain legal advice” and further advising “I have been advised by a lawyer who intends to give me legal advice, as I am seeking legal representation and I am instructed to notify the ACAT – Tribunal to email me all of the material, referrals and communications in pdf format”.
The orders of 2 May 2018 were varied to give the applicant until 29 June 2018 to file his submissions. Fourteen further emails were sent by the applicant from 17 May 2018 to 3 July 2018. The Tribunal has had regard to these emails, although they do not advance the applicant’s case and do not address the preliminary issues. The respondent advised it did not intend to file further submissions.
On 30 July 2018 the applicant emailed the Tribunal advising that he had a lawyer, who would file a notice of representation. On 31 July the registry advised the parties that no further submissions would be accepted on the decision reserved. On 13 September 2018 a notice of contact details was filed by a solicitor acting for the applicant.

Does the complainant need a litigation guardian for these proceedings?

At common law there is a rebuttable presumption that an adult is legally competent to bring or defend legal proceedings.[14] Where a person is not legally competent, a litigation guardian may be appointed to protect the person, the other parties to the proceedings, as well as the legal process:
25 There are valuable statements about the court’s power to appoint litigation guardians in Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] 1 WLR 1511. In substance, the purpose is to protect plaintiffs and defendants who would otherwise be at a disadvantage, as well as to protect the processes of the court. Kennedy LJ said (at [31]):
‘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 parties to litigation are not pestered by other parties who should be to some extent restrained’.
Chadwick LJ (at [65]) said:
‘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’.[15]
[14] Murphy v Doman [2003] NSWCA 249
[15] L v Human Rights & Equal Opportunity Commission [2006] FCAFC 114
The ACAT Act sets out who may apply to the Tribunal,[16] who are the parties to an application,[17] and provides that a party may appear in person.[18] These provisions do not replace the common law principles about legal competence, but work in conjunction with them. Procedural Direction 8 of the ACT Civil and Administrative Tribunal Procedural Directions 2010 (No 1) (Procedural Directions) provides:[19]
8. The Representation of people under a legal disability
8.1A person who is under a legal disability may only be a party to an application if they are represented by a litigation guardian unless the Act or an authorising law or these Directions provide otherwise.
[16] ACAT Act section 9
[17] ACAT Act section 29
[18] ACAT Act section 30
[19] Procedural Direction 9 then provides for a process of appointing a litigation guardian by way of affidavit
The term ‘legal disability’ is defined in the Procedural Directions as follows:
“a person with a legal disability” means a child or a person who is not legally competent to be a party to an application because of a mental disability
The Tribunal may in its discretion dispense with the requirements of the Procedural Directions.
Where a question as to the legal competence of a party arises, the Tribunal should consider the implications of that issue for the particular case before proceeding further. Hearing the matter when one party lacks the requisite capacity, even to determine preliminary points, may be to provide to that party no hearing at all.[20] This would be a breach of the requirements of procedural fairness.[21] Nevertheless in some cases it will be appropriate to proceed to hear and decide a matter without determining the question of legal competence, or even where satisfied that one party is not legally competent.[22] Whether the Tribunal should proceed or not will depend upon the ‘need’ for a litigation guardian in the circumstances of the case:
33. Where, as here, the applicant is unrepresented and the respondent does not wish to raise any point about competence but the court nevertheless has serious doubts about the applicant’s capacity, the court should consider of its own motion the factual issue of ‘need’. In such a case the court should, of course, raise the issue squarely and should give the applicant and any other affected party a proper opportunity to be heard and to place relevant material before the court. Whether, in the absence of medical evidence as to capacity, the court could be satisfied of the ‘need’ such that it should act on its own motion … to appoint a litigation guardian will of course depend upon the circumstances of a particular case.
…
35. Difficulties may arise when a respondent submits that it would be appropriate for the court to dismiss a proceeding summarily on the ground that it is vexatious or an abuse of process or for some other reason, and an issue of capacity emerges at the same time. Then, a judge or magistrate would need to consider whether the question of capacity would be more appropriately resolved before considering summary dismissal. In some situations, the utter hopelessness of an action may make it a proper case for summary dismissal, without there being any need to consider the litigant’s capacity to conduct it. The appropriate course for a judge or magistrate to take will of course inevitably depend on the circumstances of the case, bearing in mind that the threshold for the summary dismissal of a proceeding is a high one.[23]
[20] Murphy v Doman [2003] NSWCA 249 [47]-[51]
[21] The tribunal is required by its legislation to perform its functions in a way which is procedurally fair, but also to aspire to being ‘quick’ and ‘efficient’. Sometimes there is a tension between these imperatives. A failure to provide procedural fairness will not make the decision of the tribunal a nullity, but may be an appellable error — Legal Practitioner v Council of the Law Society (No 2) [2014] ACTSC 352
[22] See Clarey v Permanent Trustee Co Limited & Anor [2005] VSCA 128
[23] L v Human Rights & Equal Opportunity Commission [2006] FCAFC 114 [33]-[35]
Accordingly, the Tribunal considered as a threshold issue whether the legal competence of the applicant should be determined before deciding the preliminary issues raised by the applicant. The answers to the preliminary issues seemed clear, such that delaying the matter to inquire into the legal competence of the applicant might be argued to be inefficient or even unwarranted. On the other hand, the Tribunal did not have the benefit of any submissions countering the arguments put by the respondent – perhaps the preliminary issues would not seem so clear if such submissions were provided. The requirements of procedural fairness are so fundamental to the Tribunal’s performance of its functions that only in an overwhelming case would it be appropriate to decide a matter against a party under a legal disability. Given that the Tribunal had medical evidence, had conducted several days of hearing with the applicant representing himself, and had sought submissions from the parties, we felt we had sufficient information to make a decision on the question of legal competence, and should decide that question before proceeding to consider the preliminary issues.
The starting point was the presumption that the applicant is legally competent.
The approach to determining competence for legal proceedings, and particularly for a self-represented litigant, was summarised by Kyrou J in Slaveski v State of Victoria [2009] VSC 596 (Slaveksi) as follows:
25.    There is a presumption that a person of full age is capable of managing his or her own affairs, which must include the management of litigation to which he or she is a party. The person who alleges the contrary bears the onus. (footnotes omitted)
26. There is no universal test for determining whether a person is capable of managing his or her affairs. Lack of capacity is usually denoted by a person’s inability to understand the nature of an event or transaction when it is explained. In relation to litigation in which a person is a party, the person must be able to understand the nature of the litigation, its purpose and its possible outcomes, including the risks in costs. (footnotes omitted)
…
31.    Where a person is a self-represented party to a proceeding, the level of mental capacity required to be a ‘capable’ litigant will be greater than that required to instruct a lawyer because a litigant in person has to manage court proceedings in an unfamiliar and stressful situation. (footnotes omitted)
32.    In my opinion, where a plaintiff is self-represented, the following issues are potentially relevant in determining whether he or she is a person under disability for the purposes of r 15.01 of the [Supreme Court (General Civil Procedure) Rules 2005 (Vic)]:
(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?
33.    A self-represented person who is incapable of continuing to act as his or her own advocate is not necessarily incapable of managing his or her affairs in relation to the relevant proceeding, as that person may be capable of retaining legal representatives to continue to conduct the proceeding. (footnotes omitted)
…
35. A decision on whether to appoint a litigation guardian is usually made after giving the party affected and the other parties to the proceeding an opportunity to be heard on the matter. However, the party affected will not need to be heard personally where it is incontrovertible that he or she is incapable of making any meaningful submissions on the matter. (footnotes omitted)
The factors described in Slaveski can be usefully applied in the tribunal context, subject to the qualification that in that case the Court was considering a litigant attempting to represent himself in a Court, faced with the rules of evidence and civil procedure. It should be expected that a self-represented litigant would find the processes of a tribunal, not bound by the rules of evidence and conducted informally, less intimidating.
Medical evidence in relation to capacity
The applicant had a motorcycle accident in 2006. The medical evidence in relation to the applicant’s acquired brain injury varies. The applicant experienced some seizures after the accident. Although no gross abnormalities of the brain were evident, testing in the year after the accident showed reduced cognitive function, especially in the area of memory. The applicant at that time was taking strong medications for pain, and to reduce risk of seizures. The early medical opinions as summarised in the vocational future earning capacity report of 25 May 2010 were pessimistic:
Dr Hampshire reported on 21 July 2009 … that [the applicant] suffers from an organic brain syndrome which is ‘stable, chronic and is directly attributable to the motor bike accident … [the applicant] ‘will be unable to return to the workforce due to his head injuries’.
Dr Akkerman reported on 5 November 2009 that [the applicant] is ‘totally unfit’ for work. ‘In my opinion he is unlikely to ever return to work’
Dr Girgis reported on 23 July 2008 that [the applicant] is ‘permanently unfit for work and his prognosis is guarded’.
…
N.Saunders reported on 3 March 2008 that [the applicant] has a serious defect in his cognition in most areas assessed, including:
·   Memory, short and delayed recall of auditory information
·   Visual recall of information
·   Switching off attention
·   Impulse control
Dr Hampshire is a consultant psychiatrist who had seen the applicant for a number of years leading up to 2010. In March 2010 he diagnosed the applicant with post‑traumatic stress disorder, anxiety and depression. Dr Ben Teoh in a report of 30 May 2010, and psychologist Dana Marie Adam in reports of 2009, similarly diagnosed the applicant with post-traumatic stress disorder and reduced cognitive capacity.
Not all of the applicant’s difficulties from time to time were attributable to the acquired brain injury suffered in July 2006:[24] on 18 May 2006 the applicant had been diagnosed at St George Hospital Sydney as suffering from a chronic psychotic condition, exacerbated by 12 months prior amphetamine use.[25] The psychometric testing conducted in 2008 indicated a prior history of bipolar and schizophrenia diagnoses. Immediately after the accident, and for some years following, the applicant took medication to control seizures and manage pain that impacted adversely on his cognitive functioning.
[24] One report also notes that it is difficult to draw definitive conclusions about the impact of the injury, as the applicant’s pre-accident level of functioning is not known
[25] Exhibit A6 at [19]
Dr Bohdan Shehovych, a general practitioner, provided a short opinion to the tribunal in relation to other proceedings, dated 13 March 2014.[26] Dr Shehovych stated “In summary [the applicant’s] traumatic brain injury has resulted in severe memory loss, poor cognition and emotional lability” and later “If [the applicant] cannot remember the facts required to make on going decisions in his life he cannot make proper decisions”.
[26] Exhibit A9
The early medical opinions are of limited value for current purposes, given that many are based on self-reported symptoms, and the testing that was undertaken occurred years ago when the applicant was taking strong medication which would affect cognitive performance. It must also be borne in mind that at the time of the accident the applicant was in his mid-20s, and it is possible notwithstanding the dire prognoses at the time that his brain injury recovered more than expected.[27]
[27] In 2016 in the context of a request for a fitness to plead assessment, Dr Anthony Barker pointed out that functional impairment or intellectual capacity of the applicant might have improved or deteriorated over time

The more current medical information before the Tribunal was prepared either for the purposes of the Childrens Court proceedings, or for reporting to the NDIS. Thus, these reports do not squarely address the question of legal competence. Reports of Dr Knox for the Childrens Court proceedings reached the conclusion that the applicant has a personality disorder. Reports of Dr Basseer Jeeawody, a consultant psychologist relied upon by the applicant, do not share that view. Dr Jeeawody became involved in treating the applicant and his wife as a consequence of the removal of the children, and has continued his involvement in counselling the applicant under the NDIS.
In his most recent report of 5 May 2018 Dr Jeeawody explained that in the past year he conducted 12 therapeutic sessions of 1.5 hours duration with the applicant. During this, he stated “[the applicant’s] psychosocial disability was assessed to determine the impact of his disability and his everyday functioning and developed a plan of action. … [the applicant] is developing an intense interest in the field of ‘advocacy’ and this was encouraged as he has the required skills and aptitudes to strengthen this interest.”
Prior guardianship and management orders
The history of the litigation involving the applicant was also variable as to his ability from time to time, for different decisions or in different proceedings, to represent himself. After the motorcycle accident the applicant apparently received a payment of compensation in proceedings in the Supreme Court of NSW, and the applicant’s wife was appointed to manage those funds. Later, management was taken over by The NSW Trustee and Guardian and, when the applicant moved to Canberra, the ACT Public Trustee and Guardian.
In the Childrens Court proceedings arising from the events of 23, 24 and 25 September 2015, the applicant had a litigation guardian.
In his complaint about the ACT Public Trustee and Guardian, the applicant wrote “I am being forced to fill out commonwealth statutory declarations by ACT PT knowing that I lack legal capacity.”[28]
[28] Exhibit A12 – the Public Trustee responded that at that time the applicant did not have a guardian appointed
The transcript of the applicant appearing on 10 May 2017 in the Supreme Court shows the applicant representing himself adequately and without any apparent difficulty.
As noted in Slaveski at paragraph 28:
The question of incapacity in relation to litigation must be examined against the facts and subject matter of the particular litigation, the number and complexity of the issues involved and the identity, number and interests of the other parties, particularly opposing parties. A person can have the requisite capacity for one proceeding and lack it for another. (footnote omitted)
Conclusion
In summary, the historic medical evidence shows the applicant had a history of drug use and mental illness prior to his involvement in a motorcycle accident in 2006. After the accident, the applicant demonstrated reduced cognitive function particularly in the area of memory. The applicant at that time was on strong medication. Currently, the applicant is not using any medication except Ibuprofen. Most recently, the expert opinion of Dr Jeeawody is that the applicant has the capability to act as an advocate for others.
The opinion of Dr Jeeawody is consistent with the applicant’s reported activities in 2018, and the Tribunal’s observations of the applicant in the hearing. He has in 2018 represented himself in the Supreme Court, and travelled to and from Geneva (by himself on the return journey) to pursue proceedings before the United Nations. In the current proceedings, he was able to give almost two hours of oral evidence of events occurring over two years earlier, on the basis of having memorised his notes of those events. His behaviour before the Tribunal indicated an understanding of tribunal processes and the ability to respond appropriately. He seemed to understand what was required of him before, during and after the hearing.
The more recent emails of the applicant show he understood the need to obtain legal advice, and arrange to obtain it, as per the test described in Owners – Strata Plan No 23007 v Cross, in the matter of Cross.[29] It was, however, an action that he did not take until late in the day.
[29] [2006] FCA 900

68. Against all of this, there is the content of the applicant’s communications in writing. Even allowing for the effect of the speech to text translation, the applicant’s frequent and lengthy communications to the tribunal were dense, convoluted and sometimes irrelevant. For example, very little of the emails sent to the Tribunal after the hearing engaged with the question of legal competence, or the preliminary issues. However, the mere fact that the applicant’s submissions are not to the point does not mean he is legally incompetent.

69. The starting point is that the applicant is presumed to be legally competent. While the applicant has previously been found to have significant memory deficits, the more current expert evidence is that the applicant has the skills and capacity to be an advocate for others. This opinion is confirmed by the applicant’s conduct of the matter over three days of hearing. His written submissions were inapt, however his understanding of and compliance with the tribunal’s processes was apparent. Further, he was able to locate, instruct and retain a solicitor when he decided to take that path. Overall the evidence before the Tribunal does not satisfy the Tribunal that the applicant is not legally competent for this proceeding. It is therefore appropriate to proceed to determine the preliminary questions.[30]

Did the complainant have a protected attribute in September 2015?

[30] Even if the applicant did lack legal capacity, it might still be appropriate to proceed given our conclusions below as to whether or not a service was provided

The applicant submits that he had a mental disability in September 2015 due to his acquired brain injury.
The medical reports written in 2014 and 2015 establish that at that time the applicant had cognitive function issues such as memory problems and difficulty understanding. In September 2015 the applicant was still taking medication for back pain and he claims he was less mentally agile then than he is now.
The respondent does not deny that the applicant had a mental disability which was a protected attribute in 2015 at the time of the emergency action. The respondent also concedes that relevantly for section 7(2)(e) of the Discrimination Act, the staff, by 24 September 2015 at least, believed that the applicant had a mental disability and thus a protected attribute. Indeed, the respondent submits that the staff were required to take into account the applicant’s disability when performing their function of appraising the child concern report and, specifically, determining whether there was a parent both willing and able to provide care and protection to the children.
The Tribunal is satisfied that the applicant had a protected attribute of mental disability at the relevant time, and furthermore that the caseworkers were aware that the applicant possessed that attribute from 24 September 2015.

What is the scope of the matter before the Tribunal?

In considering the issues raised by the applicant, the Tribunal is constrained by the referral from the HRC. The Tribunal has jurisdiction only in relation to that complaint.[31]
[31] WSOL v John James Memorial Hospital [2011] ACAT 81
In the original complaint form, the applicant had ticked boxes indicating that he had suffered discrimination on the basis of multiple attributes, in the taking of emergency action in relation to his five children on 25 September 2015, as well as experiencing sexual harassment and victimisation. At the hearing the applicant clarified that the attribute he relied upon was a mental disability by reason of his acquired brain injury. The references to sexual harassment and victimisation in the complaint form were not proceeded with.
The complaint submitted by the applicant to the HRC also criticised the actions of members of the AFP and the Public Trustee, as well as the Children’s Court proceedings. The respondent in its response had submitted that it could not be held accountable for the actions of unrelated persons or organisations. At the hearing, the applicant conceded that while he maintained that the actions of those bodies were unacceptable, they formed no part of the complaint against the respondent.
One matter complained of by the applicant was an allegation that the applicant’s child was interviewed by the staff on 23 September 2015. The respondent submitted that this alleged act was not an act of the respondent towards the applicant, and was thus outside the Tribunal’s consideration. We accept that submission.
The Tribunal is satisfied that the scope of the matter, then, is the interactions between the staff and the applicant on 23, 24 and 25 September 2015, and specifically whether the staff discriminated unlawfully against the applicant on the basis of his disability by speaking with him when he did not have an advocate present, or not providing adequate information to him, in a way he could understand, about the process that was underway.

Does the conduct complained of constitute a ‘service’?

The respondent submitted that for the applicant to claim that he was subject to unlawful discrimination, he must show that the activity complained of related to a good, a service or the use of a facility as described in section 20 of the Discrimination Act:
20     Goods, services and facilities
It is unlawful for a person (the provider) who (whether for payment or not) provides goods or services, or makes facilities available, to discriminate against another person—
(a)     by refusing to provide those goods or services or make those facilities available to the other person; or
(b)     in the terms or conditions on which the provider provides those goods or services or makes those facilities available to the other person; or
(c)     in the way in which the provider provides those goods or services or makes those facilities available to the other person.
The onus is on the applicant to establish the service, and this must be done with a degree of precision.[32]
[32] Waters and Ors v Public Transport Corporation (1992) 173 CLR 349 [361]; [404]-[405]
Counsel referred the Tribunal to the decisions in IW v City of Perth and Others (1996-97) 191 CLR 1 and Rainsford v Victoria [2007] FCA 1059 among others to demonstrate that the word ‘service’ has been treated as a word of generality which covers any helpful or beneficial activity.[33]
[33] IW v City of Perth and Others (1996-97) 191 CLR 1 [16]-[17]; [23]
Counsel submitted that the exercise of governmental powers will have incidental effects upon others, although a service is not provided to them.[34] Counsel submitted that the determination of applications involving a deliberative function in the exercise of a statutory power or duty and the provision of certain policing services, have each been found not to constitute the provision of a service.[35]
[34] Wood v Calvary Health Care ACT Ltd [2006] FCA 1433 [26]
[35] IW v City of Perth and Others (1996-97) 191 CLR 1; Commissioner of Police v Mohamed [2009] NSWCA 432
Counsel provided a copy of a decision involving the applicant in another jurisdiction, in which he had brought discrimination proceedings against a police service. In that case, the applicant had been unsuccessful because the Court found that the police officers involved were not providing a ‘service’ to the applicant in the actions complained of. Counsel submitted that adopting similar reasoning, the Tribunal could not be satisfied that the staff were providing a ‘service’ to the applicant on the days in question.
As noted earlier, the applicant was unable to provide submissions on this question at the hearing because he became unwell. The Tribunal made provision for the applicant to file submissions, and extended the time frame for provision, however none of the emails or documents provided by the applicant engaged with the reasoning put forward by the respondent.
Counsel for the respondent pointed to the legislative context of the CYP Act for the actions undertaken by the staff on the days in question. The relevant provisions are contained in Chapters 11 and 13, and extend from the initial receipt of the child concern report and decision that the child concern report was a child protection report through to appraisal and the taking of emergency action. It is not necessary to set those provisions out in full in these reasons.
Counsel submitted that in performing their functions of information gathering, appraisal and taking emergency action caseworkers will almost invariably have contact with a parent, but do not under the legislation have any explicit responsibility regarding a parent. The focus of the legislation, it was submitted, is on the best interests of the child. It was noted that unlike other legislation, there is no specific requirement for another person to be present with a parent who is being asked questions.[36]
[36] For example, such as the procedure for interview friends under the Crimes Act 1900 and Crimes (Forensic Procedures) Act 2000
Counsel submitted that in this case, once the child concern report was received on 23 September 2015 there was a statutory obligation upon the Director-General to investigate the report to ensure the children were not exposed to risk of abuse or neglect. One outcome of that process might have been to provide assistance or support and, had that been the case, a service might have been provided to the applicant. However, this investigation did not go down that path. Counsel submitted what was being done was the assessment of a child concern report that, because of the determination that the children were in need of emergency care protection, did not involve the provision of a service in the relevant sense.
Counsel submitted that to the extent the activities of the staff in undertaking investigation, appraisal and emergency action constituted a service, these were intended by the legislation to be beneficial or helpful to the children and not to the applicant. Therefore, even if there was a service it was not being provided to the applicant. Further, to the extent services were being provided Counsel submitted these were analogous to ‘policing services’.
The Tribunal is satisfied that when the staff spoke with the applicant on each of the three days, and undertook emergency action on the third day, they were exercising statutory functions under the CYP Act. The activities of investigation, appraisal and emergency action are not a service to a parent, but a statutory function to be exercised in the best interests of the child or children in question. These actions of staff were not services provided to the applicant and thus cannot constitute unlawful discrimination against him under the Act.

Conclusion

The applicant is presumed to be legally competent, and on the information before it the Tribunal is not satisfied that the applicant is not legally competent for these proceedings, and has proceeded to determine the preliminary issues.
We are satisfied that the Tribunal’s jurisdiction is only in relation to those matters in the complaint which refer to actions of the staff on the 23, 24 and 25 September 2015.
We are satisfied that the applicant had an acquired brain injury, which is a protected attribute, at the relevant time, however the medical evidence is insufficient to allow us to determine with any degree of satisfaction the extent of that disability on 23, 24 and 25 September 2015. In the end it is not necessary that we do so, because of our conclusion below.
We are satisfied that in their actions on 23, 24 and 25 September 2015 the staff were not providing a service to the applicant. This means that their actions cannot constitute unlawful discrimination under the Discrimination Act, and the application should be dismissed.
………………………………..
Presidential Member MT Daniel
For and on behalf of the Tribunal

HEARING DETAILS

FILE NUMBER:	DT 7/2017
PARTIES, APPLICANT:	Complainant 201717
PARTIES, RESPONDENT:	The Australian Capital Territory
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	Mr Archer
SOLICITORS FOR APPLICANT	N/A
SOLICITORS FOR RESPONDENT	ACT Government Solicitor
TRIBUNAL MEMBERS:	Presidential Member MT Daniel Member E Trickett
DATES OF HEARING:	30 April 2018 1 May 2018 2 May 2018