Dezfouli v Department of Corrective Service
[2008] NSWADT 198
•21 July 2008
Set aside by Appeal:
CITATION: Dezfouli v Department of Corrective Service & anor [2008] NSWADT 198 DIVISION: Equal Opportunity Division PARTIES: APPLICANT
Saeed DezfouliFIRST RESPONDENT
SECOND RESPONDENT
Department of Corrective Services
Joe SmithFILE NUMBER: 081005 HEARING DATES: 9 April 2008 SUBMISSIONS CLOSED: 9 April 2008
DATE OF DECISION:
21 July 2008BEFORE: Layton R - Judicial Member; Nemeth de Bikal L - Non Judicial Member; Schneeweiss J - Non Judicial Member MATTER FOR DECISION: Preliminary matter LEGISLATION CITED: Anti-Discrimination Act 1977 CASES CITED: Rainsford v State of Victoria & Anor (2007) 242 ALR 128 Rainsford v State of Victoria [2008] FCAFC 31
Commissioner of Police, NSW Police Service v Estate Edward John Russell & ors [2001] NSWSC 745
Commissioner of Police v The Estate of Edward John Russell & ors [2002] NSWCA 27
Waters v Public Transport Corporation (1992) 173 CLR 349
IW v City of Perth (1997) 191 CLR 1Director-General, Department of Community Services v MM and Anor [2003] NSWSC 1241
Minister for Transport Services & ors [2006] NSWADT 83
Sydney University Postgraduate Representative Association (SUPRA) & ors v Minister for Transport Services & ors [2006] NSWADT 83
X & Y v Western Australia [1996] HREOCA 32
NC and others v Queensland Corrective Services Commission [1997] QADT 22
Alipek v GSL Custodial Services Pty Ltd & anor (Anti-Discrimination) [2008] VCAT 845
Mahommed v State of Queensland [2006] QADT 21
Chand v Rail Corporation of New South Wales (EOD) [2007] NSWADTAP 54
Budd v State of NSW (NSW Police) [2007] NSWADT 88
Director-General, Department of Community Services v MM and Another [2003] NSWSC 1241
Dezfouli v Justice Health and anor [2008] NSWADT 99 Dezfouli v State of New South Wales (Justice Health) and anor [2008] NSWADT 122
Briginshaw v Briginshaw (1938) 60 CLR 336
Burns v Laws (EOD) [2008] NSWADTAP 32
Hall v State of NSW (Department of Corrective Services) [2006] NSWADT 243
Richard Lawrence Maddrell v Public Trustee of New South Wales [1996] NSWSC 333REPRESENTATION: In Person
Ms Anderson, counselORDERS: 1. The subject matter of Mr Dezfouli’s complaints relates to the provision of ‘services’ within the Anti-Discrimination Act.
2. Leave is granted for the complaint referred by the President to be amended to include allegations of victimisation.
3. The Applicant is to file with the Registry and serve on the Respondents a statement of the particulars of his claims of victimisation before or on 21 days from the date of this decision.
4. The matter is listed for a Case Conference on a date to be fixed by the Registry.
1 The Applicant, Mr Saeed Dezfouli, is a forensic patient held in the custody of the Department of Corrective Services (DCS). He is housed in Long Bay hospital, a gaol, where inmates with mental health problems are held on remand, after sentencing, or following being found not fit to stand trial. Mr Dezfouli was found not fit to stand trial on charges related to allegedly starting a fire which led to the death of a woman with whom he had previously worked. On 27 April 2007, Mr Dezfouli lodged claims with the President of the Anti-Discrimination Board (respectively the ‘President’ and the ‘Board’) alleging sexual harassment, namely that on 26 March 2007, a DCS officer touched him intimately between the legs in the course of a ‘strip’ body search. Subsequently, his claims included that he was moved from ‘C’ Ward in Long Bay hospital where he had access to education and other privileges, to ‘D’ ward, a ward with more limited inmate privileges. By letter dated 23 January 2008, the President referred Mr Dezfouli’s complaint of ‘sexual harassment in the provision of goods and services’ under Sections 22A, 22F, 52 and 53 of the Anti-Discrimination Act (ADA) to the Administrative Decisions Tribunal (the ‘Tribunal’).
2 On 20 February 2008 the Tribunal held a Case Conference in which Mr Dezfouli participated by telephone and at which the Tribunal directed that the matter be listed for a half day hearing to determine the following two preliminary issues: First, does the subject matter of Mr Dezfouli’s complaint relate to the provision of a ‘service(s)’ under Section 49 of the Anti-Discrimination Act (the ADA)? Secondly, should the complaint be amended to include an allegation of victimisation within the ADA Section 50?
3 On 9 April 2008, the Tribunal held a hearing to determine the said preliminary issues. Mr Dezfouli appeared in person. After considering submissions from Mr Dezfouli and from the Respondents’ Counsel, the Tribunal determined that Mr Dezfouli’s complaints relate to ‘services’ within the ADA and gave him leave to amend his claims to include allegations of victimisation.
THE PRESIDENT’S REPORT
4 The President’s Report includes the following documents:
- - Mr Dezfouli’s initial complaint in an undated letter, stamped as received by the Board on 27 April 2007, is at page 8 of the President’s report; he stated amongst things, ‘Once again I have been sexually assaulted by a corrupt and criminal thug (prison officer)’. The letter attached his statement dated 26 March 2007 (see pages 9 to 13 of President’s report) which states:
- ‘At about 0710 hours I was sitting on the toilet and using it in my cell. Corrective officer Dan Palmer open the door and walked into the cell and said, “Have you been smoking?”. I felt so embarrassed and while trying to cover up myself with my T-shirt and said “Do you mind, I am using the toilet”. He said, “Yes I do mind, have you been smoking?” I said “No” (CO Joe Smith was at the door watching. He said, “When you finished we are going to do a cell search”. Then CO Palmer walked out and said to Joe Smith “Fucking piece of shit is lying”. Then they both stood by the window staring at me. When I heard that I said “Watch your language”. When I finished using the toilet they both walked in. Dan Palmer came inside, I was facing him and Joe Smith was standing behind me. CO Dan Palmer said “Search regulations, follow my directions”.
Then he started telling me what to do. I followed but I felt so insecure.
Then directed to take my T shirt off and hand it to Joe Smith which I did.
Then he told me to take my short off which I did. Then he told me to take off my underwear (brief) out and hand it to Joe Smith which I did.
Then he asked me or directed me to lift my feet, then to lift my penis with my hand. At this time I felt the hand of Joe Smith between my legs from behind, who pressed it all the way up. I suddenly felt shocked, uncomfortable, bothered, annoyed, upset and angry and said “When you are doing a strip search you are not allowed to touch the inmate like that”
Dan Palmer said “Shut up and follow the directive otherwise you get charged and locked in”. I swallowed my feelings of frustration, disappointment, anger and outrage and said nothing. Specially because I was alone with these unprofessional, unethical, immoral, corrupt and criminal thugs in my cell. They could beat the hell out of me and write another false and fabricated statement that I was violent or aggressive towards them. Then CO Palmer directed me to dress up and wait outside of the cell which I did, then they trashed (which I showed it to my nurse for the shift). Since I was so bothered and angry of the way CO Joe Smith touched me I brought the issue to the attention of my nurse. I told her that I already fear for my life, safety, sanity and health in here, I already feel so insecure in here in the hands of DCS officers, and that I fear it will backfire on me more, and I feel bothered and annoyed and angry of being sexually assaulted and harassed by the DCS officer, and don’t know what to do…’
- ‘A number of times I have been ‘sexually harassed and sexually assaulted by some DCS officers and staff of Justice Health since I entered the system. Once again on 26/03/07, I got sexually assaulted by two DCS officers, which I lodged an official complaint about it. As I expected, my complaint backfired and on 29/03/07, I was transferred to the LBH Acute Ward to make me to pay for my complaint, after being in the sub acute ward for over four years…[I want] that some DCS officers stop from physically and mentally torturing me and sexually harassing and assaulting me.’
- A statement dated 11 July 2007, by Shaun State (see pages 113-114 of the President’s Report) stating, ‘[On] 05/07/07 …The senior officer put both hands around the head of Saeed and pushed him into the cell and threw him on the bed very forcefully. A second officer also pushed them both inside…’
- A report dated 30 April 2006 by Nurse Laura and ‘A/Nursing Unit Manager Nicole’, at the President’s Report pages 76-79, prepared for the Mental Health Review Tribunal as to Mr Dezfouli, stated, amongst other things, that he had been at Long Bay hospital for ‘almost 4 years’, and that he ‘is a highly intelligent and articulate man with a profound amount of knowledge about the legal system, the criminal and justice system, human rights, and policies/procedure etc’ who will ‘fight’ anything he ‘feels is “corrupt” within the system’.
- A report dated 30 January 2007 by Nurse Tim Castle, at page 90 of the President’s Report, stating, amongst other things: ‘Believes one particular officer (DCS) is victimising and trying to “break me down”. Several DCS officers with whom I have spoken “off the record” believe Sam’s c/o victimization “would appear to be accurate”. He is concerned for his safety and wants to be placed in segregation’.
- A psychiatric report dated 19 July 2006 by Dr Paul Mullen, psychiatrist (see pages 67-68 of the President’s Report), concluding that Mr Dezfouli was fit to plead at that time to charges relating to his setting a fire which led to the death of a woman. Dr Mullen noted that Mr Dezfouli was of Iranian origin, and though he wanted to give up his Australian citizenship and seek repatriation to Iran, this ‘seems a rational strategy’ in all his circumstances. Dr Mullen stated,
- ‘Mr Dezfouli firmly believes he has been subjected to injustice and various forms of misuse and mistreatment. He is caught up in his vision of justice and personal vindication. Nothing will distract him from this quest for justice. He obtains considerable satisfaction from using his detailed knowledge of the legal and complaints processes to not just further his cause but to plague those who he believes have impeded his quest, or harmed him along the way’ .
- A document dated 14 October 2007 by Ms Karen Bokyo, General Manager Long Bay Hospital, at pages 109-110 of the President’s Report, addressed to the DCS Professional Conduct Management Committee (the PCMC), which states:
- ‘… The alleged incident occurred on 26 March 2007 when Senior Correctional Officer Danny Palmer observed smoke coming from cell of Inmate Dezfouli. SCO Palmer then asked for the assistance of Officer Joe Smith. Both officers then entered the inmate’s cell and strip searched him in an attempt to locate the matches or lighter’.
A short time later, approximately 25 minutes, the manager of security, Bill Golledge, attended the scene and notices (sic) Inmate Dezfouli sitting outside his cell on a chair whilst the officers searched the inside of his cell. Mr Golledge spoke with Inmate Dezfouli in relation to a property issue. At this time, Mr Golledge noted that he did not appear distressed and (sic) any way and made no indication that he had been assaulted or mistreated.
A short time later Mr Golledge was informed by the Justice Health staff that Inmate Dezfouli had made an allegation that he had been assaulted or mistreated.
Mr Dezfouli was given an application/statement form on the same day but did not hand it to staff until the following day. In the application he alleged Officer Joe Smith had placed his hand between the inmate’s legs from behind during the strip search that the officers “trashed” his cell during the subsequent cell search [and] He felt sexually harassed due to Officer Palmer entering his cell whilst he was on the toilet.’
- A letter dated 30 October 2007 from Commissioner Ron Woodham attaching the DCS strip search policy, (see pages 95-108 President’s Report). The DCS Rules as to strip searches are at 12.4.6 of the policy and state: A strip search may be deemed necessary when ‘the inmate is suspected of carrying unauthorised property’. An officer performing a trip search must ‘never touch the inmate’. ‘…officers should remember that inmates highly value their possessions. Searching should always be conducted with a minimum of fuss and mess’. Strip searches ‘must be conducted with due regard to dignity and self respect and in as seemly a manner as is conducive to an effective search. Furthermore, unless there are exceptional circumstances, strip searching will be carried out under the supervision of an officer not below the rank of Senior Correctional Officer. On every occasion inmate is required to part their buttocks, the officer in charge of the search must provide a report to the general manager stating the reasons for the search and other details including location, name of inmate and officers and the circumstances which gave rise to the suspicion that the inmate had at that exact time something hidden on the inmate’s body’.
5 Subsequent to the Case Conference held on 20 February 2008, the Respondents made submissions dated 7 March 2008 that the Tribunal has no jurisdiction to determine Mr Dezfouli’s complaints. The Respondents relied on the Federal Magistrates Court decision of Rainsford v Victoria [2007] FCA 1059 (‘Rainsford’s Case’), paragraph 73 to support its submission that the performance of the security and custodial functions of the Respondent do not constitute a ‘service’ within the ADA.
THE HEARING
6 As noted above, the ambit of the Tribunal hearing held on 9 April 2008 was confined to the preliminary issues of whether Mr Dezfouli’s complaint related to provision of a ‘service’ within the ADA and whether the Tribunal should permit amendment of Mr Dezfouli’s complaint to include an allegation of victimisation pursuant to Section 50 ADA.
7 By a letter dated and faxed to the Tribunal on 18 February 2008, Legal Aid NSW requested the opportunity to advise Mr Dezfouli before the hearing. This opportunity was afforded on the morning of 19 April 2008, before the hearing commenced. Mr Dezfouli advised the hearing he would continue to represent himself.
8 At the hearing, Mr Dezfouli was self represented and the Respondents were represented by Ms Anderson instructed by Ms Katrib.
9 Ms Anderson conceded that some aspects of correctional centre activities were ‘services’ within the ADA, including provision of food within the gaol system. However, she submitted that other aspects were not ‘services’ to inmates within the ADA, for example, ‘those aspects of running a prison which relate to good order and security’ such as classification which was not a ‘service’ because it is a matter entirely within the Commissioner’s discretion and it would be clearly ‘unworkable’ if classification was open to scrutiny by the Tribunal. She submitted that some aspects, including transport and accommodation, are problematic as to whether or not they are ‘services’ to inmates within the ADA.
10 Ms Anderson relied on the decision in Rainsford’s Case which found that the provision of transport and accommodation in gaol were not ‘services’ within the Victorian equivalent to the ADA. However, she also submitted the decision of Rainsford v State of Victoria [2008] FCAFC 31 in which the Full Federal Court, while dismissing the appeal, nevertheless stated at paragraph 9 that there was ‘some strength in the view that the provision of transport and accommodation, even in a prison, may amount to a service’ within the Victorian equivalent to the ADA.
11 Ms Anderson submitted that a ‘service’ is something one seeks for oneself. She said therefore strip searching of inmates was clearly not a service within the ADA because it was not done for the benefit of the inmate but rather, for the protection of all in the gaol system. The Tribunal asked whether the fact that Mr Dezfouli was a forensic patient made any difference. Ms Anderson said it did not make a difference in security functions because Long Bay Hospital is a gazetted gaol and the DCS officers have no extra duties towards inmates who are forensic patients.
12 Ms Anderson referred to the case of Commissioner of Police, NSW Police Service v Estate Edward John Russell & ors. [2001] NSWSC 745 in which the Supreme Court of NSW determined that the police, in arresting Mr Russell, were not providing him with a ‘service’ within the ADA.
13 Mr Dezfouli submitted that strip searching of forensic patients was a ‘service’ within the ADA because the motive behind strip searching of forensic patients was not security, but rather, the protection of the patient. He said that while general inmates are allowed to smoke and have matches, he, as a forensic inmate in Long Bay Hospital, was not allowed to have matches or to smoke, for his own safety. Therefore the strip search by DCS officers looking for matches because they alleged he had been smoking was a service to him. Mr Dezfouli submitted that the DCS officers have a different duty to forensic patients than to other inmates who are not forensic patients. He gave as an example of this different duty the directive of the Governor about three years previously that DCS officers could interact with forensic inmates, including playing table tennis with them, which interaction would not be allowed with other inmates. He said he had a history of incidents with Officer Palmer and he felt that the incident of the strip search was set up because Officer Palmer went to ‘D Ward’ especially to get Officer Joe Smith before the search.
14 As to adding the claims of victimisation, Mr Dezfouli said that as a result of making the complaint of sexual harassment, he was ‘punished’ and suffered the following ‘backlash’ as follows: First, when he made the complaint, he was placed in a segregation cell for three days from 26 March 2007. He said that when he raised the incident with the nurse, she said she had to raise the matter with the senior officer and as a result, DCS told him they found four matches in his cell and he was placed in a segregation cell for three days from 26 March 2008. Secondly, he was told by the Governor of the gaol that the union of DCS officers had a meeting about him (Mr Dezfouli) and the officers voted for his transfer out of Long Bay. Because they couldn’t transfer him out of the Long Bay Hospital, instead he was transferred to the ‘acute’ ward from 29 March 2007 to 15 November 2007. He said he complained to the Ombudsman about the transfer to the acute ward, but the Ombudsman investigated and declined to investigate further. Thirdly, while he was in the acute ward he was assaulted by DCS officers and by an inmate. On 5 July 2007, he was assaulted by DCS Officer Danny Palmer; on 21 September 2007 he was assaulted by DCS Officer Darren Williams; on another occasion, he was assaulted by another inmate, who had heard that Mr Dezfouli had informed on another inmate. Last, there were ‘a lot more’ incidents until November 2007 which made him suffer but of these incidents he had ‘no evidence’. He said he wanted to add the victimisation complaints to his claims because he wanted to expose what was going on in gaols which was ‘disgraceful’.
15 Ms Anderson submitted that even if the Tribunal had jurisdiction to add the claims, this was opposed since Mr Dezfouli is ‘not reliable in any way’ and it is not ‘in the public interest’ to grant leave to Mr Dezfouli to expand his claims to include victimisation given he is a ‘serial complainant’ who is a forensic patient. She noted that the psychiatrists’ reports on file made it clear that Mr Dezfouli gets satisfaction out of making complaints. Ms Anderson noted that Deputy President Hennessy recently had refused leave to Mr Dezfouli to proceed with the same kind of complaint and her finding should be persuasive to the present Tribunal given the nature of the complaints he is making, his state of mind, and that it is ‘not fair to the individual staff of the Department to have to deal with the complaints’ which were ‘just nonsense’.
THE RELEVANT LAW
16 The ADA
- ADA Section 22A defines ‘sexual harassment’ as follows:
‘For the purposes of this Part, a person sexually harasses another person if:
- the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or
the person engages in other unwelcome conduct of a sexual nature in relation to the other person,
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.’
- ‘It is unlawful for a person to sexually harass another person in the course of:
a) receiving, or seeking to receive, goods or services from that other person, or
b) providing, or offering to provide, goods or services to that other person.’
- ‘(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability:
a) by refusing to provide the person with those goods or services, or
b) in the terms on which he or she provides the person with those goods or services.
(2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person’s disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services.’
- The ADA contains exceptions to operation of the Act. For example, ADA Sections 49P, 49PA, 49Q and 49R set out exceptions to the operation of the ADA prohibition of unlawful discrimination on the ground of disability.
ADA Section 50 defines unlawful ‘victimisation’ as follows:
- ‘(1) It is unlawful for a person ("the discriminator") to subject another person ("the person victimised") to any detriment in any circumstances on the ground that the person victimised has:
a) brought proceedings against the discriminator or any other person under this Act,
b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,
c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or
d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.
(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.’
- ‘It is unlawful for a person to cause, instruct, induce, aid or permit another person to do an act that is unlawful by reason of a provision of this Act. ‘
- ‘(1) An act done by a person as the agent or employee of the person’s principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee , either expressly or by implication, to do the act.
(2) If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability.
(3) Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act.
(4) For the purposes of subsection (1), the principal or employer of a volunteer or unpaid trainee who contravenes Part 2A is the person or body on whose behalf the volunteer or unpaid trainee provides services. ‘
- ‘This Act binds the Crown not only in right of New South Wales but also, so far. as the legislative power of Parliament permits, the Crown in all its other capacities.’
- ‘(1) The Tribunal may, on the application of a party to a complaint or on its own motion, at any stage in proceedings relating to the complaint, amend the complaint.
(2) A complaint may be amended to include additional complaints and anything else that was not included in the complaint as investigated by the President.
(3) An amendment may be made subject to such conditions as the Tribunal thinks fit.’
17 The identification of the service involved in an allegation of breach of the ADA is a determination of fact: Waters v. Public Transport Corporation (1992) 173 CLR 349, per Mason C.J. and Gaudron J. at paragraph 26.
18 The word ‘services’ within the ADA should be given a wide meaning in the context of anti-discrimination law: In IW v City of Perth (1997) 191 CLR 1, (IW’s Case) the High Court discussed the meaning of the term ‘service’ when considering a claim of unlawful discrimination by a group called ‘People Living with AIDS’ against the City of Perth subsequent to the group being refused planning approval for a drop in centre for people who had AIDS. Although in that case the majority of the Court found that no unlawful discrimination had taken place, all the Judges in that case opined that ‘services’ should be given a wide meaning in the context of anti-discrimination law:
- Brennan CJ and McHugh J, in the majority, stated:
- ‘The term "services" has a wide meaning. The Macquarie Dictionary relevantly defines it to include "an act of helpful activity"; "the providing or a provider of some accommodation required by the public, as messengers, telegraphs, telephones, or conveyance"; "the organised system of apparatus, appliances, employees, etc., for supplying some accommodation required by the public"; "the supplying or the supplier of water, gas, or the like to the public"; and "the duty or work of public servants"…’
- ‘In construing legislation designed to protect basic human rights and dignity, the courts "have a special responsibility to take account of and give effect to [its] purpose". For this reason, the provisions of the Act concerned with discrimination in the provision of goods or services, including s 66K(1), should be construed as widely as their terms permit. In particular, "services", a word of complete generality, should not be given a narrow construction unless that is clearly required by definition or by context.’
Gummow J, in the majority, stated,
- ‘There is ample authority that remedial legislation, such as that found here, is to be accorded "a fair, large and liberal" interpretation rather than one which is "literal or technical"… The term "service" and its variants are of wide and varied meaning. One speaks of the duties or work of a public servant, being a person serving the state or the community in a particular capacity. Service may also be rendered to an individual by conduct tending to the welfare or advantage of that person…’
- ‘The Macquarie Dictionary defines "service" as meaning "an act of helpful activity"; "the supplying ... of any ... activities, etc., required or demanded"; "the providing ... of some accommodation required by the public, as messengers, telegraphs, telephones, or conveyance"; "the organised system of apparatus, appliances, employees, etc., for supplying some accommodation required by the public"; "the supplying ... of water, gas, or the like to the public"; and "the performance of any duties or work for another". The Oxford English Dictionary is to like effect: "work done to meet some general need"; "the action of serving, helping or benefiting"; "conduct tending to the welfare or advantage of another". The concept of "services" is therefore an extremely wide one. It is by no means confined to the provision of tangible things. Its meaning is to be derived from the context…The word should be given its meaning in the context, and for the purposes, of the legislation in question.’
19 See also Waters v Public Transport Corporation (1992) 173 CLR 349, the High Court considered the term ‘services’ in the context of alleged disability discrimination; Brennan J observed at paragraph 2:
- ‘Anti-discrimination legislation should be liberally construed but not as though it were the only, or even the principal, means by which the disadvantages of the disabled or of other minority groups are to be alleviated.’
20 In Director-General, Department of Community Services v MM and Another [2003] NSWSC 1241, Barr J discussed the meaning of ‘services’ within Section 4 of the ADA and found that the Department, in receiving and dealing with applications from those who wish to be foster carers, provided a service to the applicants. Barr J stated,
- ’25. [In IW’s Case] Brennan CJ and McHugh J noted the requirement of s18 of the Interpretation Act of Western Australia that preference be given to the construction of a written law that would promote the purpose or object underlying the law. I note the provisions of s33 of the Interpretation Act , NSW, which is as follows-
In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object….
28. The term “service” or “services” is capable of broad application. Among its ordinary meanings are the action of serving, helping or benefiting; conduct tending to the welfare or advantage of another: OED (2nd Ed) XV, 36; an act of helpful activity: Macquarie Dictionary. It is a word of complete generality: IW v City of Perth per Dawson and Gaudron JJ. Their Honours noted that it should not be given a narrow construction unless that is clearly required by definition or context.
29. The definition in s4 indicates only what is included in the meaning of the word, not what is excluded. Since the matters included in the definition all fall within the ordinary notion of services the definition is to be taken as signifying everything which falls within that notion: ibid. Since neither the terms nor the content of ss47 and 49M(1) provide any contrary indication, “services” is to be read as having its ordinary and broad meaning: IW v City of Perth at 23…
41 …[The] fact that a person provides a service directly for the benefit of one person does not mean that that service is not also provided for anyone else. As Sully J found in Commissioner of Police v Russell, police officers may in relevant ways provide a service to the community at large as well as to individuals.
59 … The Parliament has made its intention known in the Act and the duty of the Court is to give effect to that intention. It is not for the Court to construe a statute by reference to concerns that the legislation may operate harshly in particular respects, but according to its terms and purposes: …’
21 In Commissioner of Police, NSW Police Service v Estate Edward John Russell & ors. [2001] NSWSC 745, Sully J considered the questions referred by the Appeal Panel of the ADT referred to the Supreme Court. In that case, Mr Russell was driving a stolen utility vehicle and was being pursued by a number of police vehicles; ultimately the deceased was arrested, and in the course of the arrest, he was dragged, trodden on, punched and subjected to abusive, racist language. The Tribunal found that this constituted unlawful discrimination on the grounds of race. The Tribunal Appeal Panel referred to the Supreme Court for its opinion three stated questions of law, including whether the conduct of individual constables in the course of their pursuance and arrest of Mr Russell amounted to the provision of a “service” within the meaning of section 19 of the Anti-Discrimination Act, and if so whether such a ‘service’ within the section was provided by the appellants. Sully J addressed this as follows:
- ’43 It seems to me that the Police Service of New South Wales [has statutory], duties, functions and characteristics sufficient to establish it as a public authority in the sense discussed by the High Court. The Police Service of New South Wales cannot operate, relevantly, except by and through police officers who are serving members of the Service. It seems to me to follow that services provided by such serving police officers are services provided by a public authority in the sense contemplated by the Anti-Discrimination Act .
44 A correct assessment of the conduct of the individual police officers in the course of their pursuit and arrest of the late Mr Russell is in my opinion as follows:
[1] The police officers who took part in the pursuit of Mr Russell were providing to the community at large services of the kind described in section 6(3)(a) and (b) of the Police Service Act.
[2] The police who took part in the arrest of the late Mr Russell were also thereby providing to the community at large services of those two kinds.
[3] As soon as the late Mr. Russell had been formally arrested, and had passed thereupon into police custody, the arresting police, and any police officer who had any part at all in the way in which Mr. Russell was subsequently handled; or who witnessed the way in which Mr. Russell was handled; became thereupon charged with a public duty to provide to the late Mr. Russell police services by way of the protection of his person from injury or death, and the protection of his property from damage, “whether arising from criminal acts or in any other way”.
[4] All of the police officers mentioned in [3] above wholly failed, on the facts as found by the Equal Opportunity Division, to provide the services which they were bound to provide to Mr. Russell pursuant to section 6(3)(b).
[5] To say that what the individual police officers did, or suffered to be done, to the late Mr. Russell amounted to the provision by them to him of police services, but on a basis discriminatory in the sense contemplated by section 19(b), seems to me to be a wholly artificial perception, given the facts found by the Equal Opportunity Division. The police officers involved did not, in my opinion, provide imperfectly to the late Mr. Russell the services which they were duty bound to provide to him. They did not provide those services at all.
45 For the whole of the foregoing reasons, I would answer the referred question (ii): No; but the subsequent failure of those police officers to afford Mr Russell the protection to which he was entitled in terms of section 6(3)(b) of the Police Service Act was conduct of the kind contemplated by section 19(a) of the Anti-Discrimination Act.’
22 On appeal, Commissioner of Police v The Estate of Edward John Russell & Ors, [2002] NSWCA 272, Spigelman CJ, Stein JA, Davies AJA agreeing, noted at paragraph 21 that ‘It was common ground before the Tribunal that the Police Service was a public authority [and] the police were found to provide a relevant "service" to Mr Russell’. The Court of Appeal noted that this was not a matter before it in the appeal; rather the Court of Appeal was concerned with whether the provisions of the ADA extended to the Commissioner of Police or the New South Wales Police Service such as to make them liable as ‘employer' or `principal' of constables found in breach of the provisions of the ADA: see ibid, paragraph 1. The Court of Appeal unanimously answered this question ‘Yes, with respect to the Commissioner of Police’: see ibid, paragraphs 95, 98 and 101.
Can aspects of gaol in NSW be characterised as ‘services’ within the ADA?
23 In Sydney University Postgraduate Representative Association (SUPRA) & ors v Minister for Transport Services & ors [2006] NSWADT 83, the Tribunal noted at paragraph 39, ‘The reported cases demonstrate that there is no impediment to the exercise of a statutory power being characterised as a "service" for the purposes of anti-discrimination legislation.’
24 In NSW, the Crimes (Administration of Sentences) Act 1999 provides, amongst other things, for conditions in gaols. Section 2A outlines the objects of the Act as follows:
- ‘(1)This Act has the following objects:
a) to ensure that those offenders who are required to be held in custody are removed from the general community and placed in a safe, secure and humane environment,
b) to ensure that other offenders are kept under supervision in a safe, secure and humane manner,
c) to ensure that the safety of persons having the custody or supervision of offenders is not endangered,
d) to provide for the rehabilitation of offenders with a view to their reintegration into the general community.
(2) In the pursuit of these objects, due regard must be had to the interests of victims of the offences committed by offenders.
(3) Nothing in this section gives rise to any civil cause of action or can be taken into account in any civil proceedings.’
25 The Crimes (Administration of Sentences) Regulation 2001 include Regulations as to how inmates are to be housed (Regulation 36), to be given health care (Regulation 250 -256), to be fed (Regulation 50-52, and 253), and to be afforded the opportunity for exercise and to make complaints (for example, Regulation 51 as to complaints about food in gaol).
26 The Mental Health (Criminal Procedure) Act 1990 provides for additional requirements for forensic patients: For example, under Section 41 of that Act, the Mental Health Review Tribunal reviews forensic inmates and can make recommendations as to the person’s ‘care, detention or treatment’.
27 The DCS website states that the Mission of the Department is ‘Managing offenders in a safe, secure and humane manner and reduce risks of re-offending’. DCS states its ‘Guarantee of Service’ is as follows:
- ‘The New South Wales Department of Corrective Services is committed to serving the people of New South Wales through contributing to community safety and discharging its duty of care to those entrusted by the courts to its custody or supervision. The Department guarantees to:
provide correctional services that meet legislated standards, court requirements and reasonable community expectations,
adequately meet the security, safety and care needs of inmates in its correctional centres, and
provide opportunity and encouragement for offenders in custody or under supervision to acquire skills and address deficits in order to enable them to lead constructive law-abiding lives…’
28 In X & Y v Western Australia [1996] HREOCA 32, The Hon Robert Nettleford found that certain restrictions in a WA gaol on an HIV positive inmate including restrictions on work opportunity, denial of sports, being retained in solitary confinement, amounted to unlawful disability discrimination; His Honour Nettleford stated,
- ‘5.3 …To draw an Act aimed at, inter alia, ensuring that, as far as practicable, persons with disabilities have the same rights to equality before the law as the rest of the community, and then, so draw it as to leave the range of it ending at the outer perimeter of a prison, would be to deny protection in one of the places where there may be a strong need for it..’
29 In NC and others v Queensland Corrective Services Commission [1997] QADT 22, Member Keim, considered ‘The ADA Behind Prison Walls’, concluded that the words ‘work’ and ‘accommodation’ in the Queensland ADA equivalent should not be read down so that they applied respectively only to traditional relationships of employer and employee and landlord and tenant in the general community thereby excluding provision of work and accommodation within the correctional system.
30 Cases where aspects of gaol life have been found to be ‘services’ within the ADA equivalent in other states, which though not binding are persuasive, include the following:
- - In Victoria, the provision of work and promotional opportunities to inmates have been held to be ‘services’ within the ADA equivalent: Alipek v GSL Custodial Services Pty Ltd & Anor (Anti-Discrimination) [2008] VCAT 845.
- In Queensland, provision of meals, work and accommodation have been held to be ‘services’ within the ADA equivalent: As to work and accommodation see NC and others v Queensland Corrective Services Commission [1997] QADT 22. As to meals see Mahommed v State of Queensland [2006] QADT 21.
- The Human Rights Equal Opportunity Commission found that provision of work, sport and accommodation in West Australia (WA) gaols have been found to be ‘services’ within the Commonwealth Disability Discrimination Act: See X & Y v Western Australia [1996] HREOCA 32.
31 In Rainsford v State of Victoria and GSL Custodial Services Pty Ltd, [2007] FCA 1059, (Rainsford’s Case) Sundberg J stated,
- ‘77 … The prison system simply could not function without prison transport. It is an artificial use of the word service to apply it to a fundamental integer of a system over which those affected have no or almost no control.
78 The accommodation of prisoners in cells within the prison system is similarly an inherent part of incarceration. Prisoners must be housed somewhere within the prison system and that this is so demonstrates that for a prisoner to have a cell is not a helpful or beneficial activity so far as the prisoner is concerned. In so far as there is choice in the allocation of prison cells, it is a purely administrative and prison management matter. It does not, of itself, provide prisoners with a benefit. Rather, it is better described as being "part and parcel of the exercise of a statutory duty and cannot be described as the provision of a service or services", to adopt the words of Underwood J in Secretary of the Department of Justice and Industrial Relations v Anti-Discrimination Commissioner (2003) 11 Tas R 324 at 341.’
32 On appeal, in Rainsford v State of Victoria [2008] FCAFC 31, while Tamberlin, North and Mansfield JJ dismissed the appeal by Mr Rainsford. Nevertheless, the Court expressly did not approve the finding by Sundberg that transport and accommodation were not ‘services’ within the anti-discrimination law in Victoria; rather, the Court said:
- ‘9 In this case it is not necessary to consider whether his Honour erred in his interpretation of the expressions "service" or "facility". This is because, if, as we think, his Honour’s conclusions on the other aspects of the claim are correct, this question does not arise. We observe that, although the meaning of "service" is not simple to resolve, and the matter was not argued in depth, we see some strength in the view that the provision of transport and accommodation, even in a prison, may amount to a service or facility. However, once one assumes that a service or facility is being provided, the question which arises for determination is whether a "requirement or condition" was imposed which constituted indirect discrimination on the ground of disability because of the terms or conditions on which, or the manner in which, the transportation and accommodation were provided to Mr Rainsford.’
33 The Tribunal has the power to amend the claim to include victimisation claims: See ADA Section 103 above. In Chand v Rail Corporation of New South Wales (EOD) [2007] NSWADTAP 54, the Appeal Panel discussed this power and at paragraph 38 it said,
- ‘There is no extrinsic material which sheds light on the rationale for s 103, but the intention of the legislature was to avoid the delay and potential duplication involved in having to lodge a fresh complaint with the President of the ADB in circumstances where a complaint involving the same or some of the same parties or the same or similar circumstances, is already before the Tribunal. The most likely source of additional complaints will be complaints that arise after the matter has been referred, but s 103 does not confine amendments to complaints of that kind. Relevant considerations when deciding whether to exercise the discretion to add a complaint is the age of the additional complaint and its relationship with the complaint that has already been referred…’
34 The only issues before the Tribunal are whether Mr Dezfouli’s complaints relate to the provision of a ‘service’ and whether the complaint should be amended to include an allegation of victimisation.
Do Mr Dezfouli’s complaints relate to the provision of ‘services’ within the ADA?
35 The President referred to the Tribunal Mr Dezfouli’s claim of alleged unlawful sexual harassment in the ‘services’ of strip searching. Mr Dezfouli submitted that strip searches of forensic inmates were a ‘service’ within the ADA because they were conducted to protect the safety of the forensic inmates and of other inmates who may be harmed if for example, as was suspected of Mr Dezfouli, the forensic inmate had matches. He said that whereas non-forensic inmates were allowed to have matches, forensic patients were not so allowed.
36 Mr Dezfouli also made claims to the Board relating to accommodation including that after the alleged sexual harassment, he was placed in segregation and then transferred to another ward with less facilities than his previous ward.
37 Section 4(1) of the ADA defines ‘services’ as including services provided by a ‘public authority’. The Tribunal finds that the Commissioner for Corrective Services is a ‘public authority’ for the purpose of the ADA: See Commissioner of Police, NSW Police Service v Estate Edward John Russell & ors. [2001] NSWSC 745, at paragraph 43, and Budd v State of NSW (NSW Police) [2007] NSWADT 88, at paragraph 11. The Commissioner is capable of being liable for DCS officers acting in that capacity who are otherwise found in breach of the provisions of the ADA: Commissioner of Police v The Estate of Edward John Russell & Ors, [2002] NSWCA 272, at paragraphs 1, 95, 98 and 101.
38 Mr Dezfouli’s complaints involve actions done to a person in a gaol, and it may be that the primary service of gaol is provision of protection and criminal justice to members of the community from the offenders. However, first, the Tribunal finds that this does not preclude the actions from also being a ‘service’ within the ADA to others: See Director-General, Department of Community Services v MM and Another [2003] NSWSC 1241, at paragraph 41 and Commissioner of Police, NSW Police Service v Estate Edward John Russell & ors. [2001] NSWSC 745, at paragraphs 43-44. Secondly, the Tribunal finds that the DCS Mission and Guarantee of Service, together with the relevant legislation indicate that DCS offers services within the ADA to inmates: See Crimes (Administration of Sentences) Act 1999 Section 2A, and Crimes (Administration of Sentences) Regulation 2001.
39 The Tribunal has considered the parties’ submissions. As well, the Tribunal has considered the NSW Crimes (Administration of Sentences) Act 1999 Section 2A (1)(a), the Crimes (Administration of Sentences) Regulation 2001 Regulations 36, 50-52, and 250 -256, the Mental Health (Criminal Procedure) Act 1990, and the DCS Mission and Guarantee of Service. The Tribunal has also considered relevant cases from other Australian jurisdictions including X & Y v Western Australia [1996] HREOCA 32, NC and others v Queensland Corrective Services Commission [1997] QADT 22, Alipek v GSL Custodial Services Pty Ltd & Anor (Anti-Discrimination) [2008] VCAT 845, NC and others v Queensland Corrective Services Commission [1997] QADT 22, and Mahommed v State of Queensland [2006] QADT 21. The Tribunal also notes that forensic patients, such as Mr Dezfouli, are a particularly vulnerable sub-group of inmates and this is reflected in the fact that the conditions of detention of forensic patients, like Mr Dezfouli, are subject to additional requirements under the Mental Health (Criminal Procedure) Act 1990. After considering the matter, the Tribunal finds that the fact that Mr Dezfouli is an inmate does not, on its own, preclude all and any actions by the gaol authorities affecting him being ‘services’ within the ADA.
40 Ms Anderson submitted that strip searching and classification (which determines where and how an inmate will be accommodated) were not ‘services’ within the ADA because they were aspects of running a gaol, for security and good order. However, the Tribunal finds that the fact that the actions were done in the course of exercising a statutory power does not preclude the actions being a ‘service’ within the ADA: Sydney University Postgraduate Representative Association (SUPRA) & ors v Minister for Transport Services & ors [2006] NSWADT 83.
41 Ms Anderson submitted that the test of whether something is a ‘service’ within the ADA is whether it is done for the other person’s benefit, and that because the actions of strip searching and accommodation were not done for the good of the inmate, this precluded the actions from being a ‘service’ to the inmate within the ADA. The Tribunal notes that one definition used for ‘services’ is ‘assistance or a benefit given to someone’: Waters v. Public Transport Corporation (1992) 173 CLR 349, per Gummow. However, the Tribunal finds that the definition of ‘services’ is much wider than this: see IW’s Case, all judgements. For example, it includes ‘the duties or work of a public servant …serving the state or the community in a particular capacity’ and ‘activities in which a benefit other than a good is conferred on, or effort expended on behalf of another person or a community’: see IW’s Case, per Gummow J. The Tribunal finds that the meaning of ‘services’ within the ADA is wide enough to encompass acts such as strip searches to protect the safety of inmates and others and the provision of accommodation to inmates.
42 Ms Anderson referred to the case of Commissioner of Police v Russell as support for the proposition that in strip searching, the officers were not providing Mr Dezfouli with a ‘service’ within the ADA. However, the Tribunal notes that in Commissioner of Police, NSW Police Service v Estate Edward John Russell & ors. [2001] NSWSC 745, Sully J accepted (and this was not the subject of the appeal) that in general, the police force was a public authority and provided services within the ADA not only to the community but also to those who were arrested by them. Although Sully J found that in Mr Russell’s case, the beating and abuse he received could not be termed a ‘service’ to Mr Russell, he also found it was ‘conduct of the kind contemplated by section 19(a) of the Anti-Discrimination Act’. Further, in the appeal, Commissioner of Police v The Estate of Edward John Russell & Ors, [2002] NSWCA 272, the Court of Appeal found that the provisions of the ADA extended to the Commissioner of Police such as to make the Commissioner of Police liable as `employer' or `principal' of constables acting in that capacity who are otherwise found in breach of the provisions of the ADA: ibid, paragraphs 1, 95, 98 and 101. After considering these cases, the Tribunal finds that they are not authority for concluding that strip searching and accommodation issues could not be ‘services’ to inmates within the ADA.
43 Ms Anderson sought to distinguish some aspects of correctional life from others for the purpose of deciding if they were ‘services’ within the ADA. For example, she conceded that provision of food was a ‘service’ within the ADA, but submitted that other aspects are not services within the ADA, such as classification, were not. The Tribunal notes that there is some authority for considering each aspect of the administration of a government body to decide whether or not it is a ‘service’ within the ADA. For example, see the discussion of the UK cases of R v Entry Clearance Officer; Ex parte Amin, Savjani and Farah v Commissioner of Police of the Metropolis in the judgement of Brennan CJ, McHugh and Gummow JJ in IW’s Case, and in Director-General, Department of Community Services v MM and Another [2003] NSWSC 1241, Barr J, at paragraphs 37-39. See also Rainsford’s Case, where, at paragraph 79, Sundberg J states,
- ‘Attending to the welfare of prisoners is an important legal obligation placed on both respondents. This is all the more so given the vulnerabilities of prisoners who are unable to do much to control their circumstances within prisons. It is for this reason that I accept that certain facilities provided by the respondents to prisoners may constitute services for the purposes of the DDA… [However, to]suggest that transport of prisoners or cell accommodation is a service to prisoners is to ignore the fact that they are functions performed in order to comply with the sometimes competing obligations of prison management to its prisoners, its staff, the public and the good governance of the prison.’
44 It may be appropriate to view individual functions of a gaol to determine whether each in isolation is a ‘service’ within the ADA. However, the Tribunal notes that first, an approach of individually examining different aspects of gaol life to determine whether or not each is within the ambit of the ADA could lead to an unnecessarily artificial construction. Secondly, Australian case law has defined ‘services’ within the anti-discrimination legislation widely: see for example IW’s Case. Thirdly, the Tribunal notes that if the legislature had intended for some aspects of gaol administration such as classification to be excluded for the operation of the ADA, it could have included them with the other exceptions: For example see exceptions to ADA Section 49M, namely Sections 49P, 49PA, 49Q and 49R. In any case, it is not necessary for this Tribunal to make a finding on this point.
45 After considering all the above, including the wide definition of ‘services’ within the ADA and the legislative framework regulating the life of detainees in NSW, the Tribunal finds that Mr Dezfouli’s claims as to a strip search and the change in his gaol accommodation relate to ‘services’ within the ADA.
Inclusion of Mr Dezfouli’s claims of victimisation
46 The President did not refer any complaints of victimisation to the Tribunal. However, Mr Dezfouli wanted to add the claims of victimisation, and this was opposed by the Respondent. Mr Dezfouli claimed that he suffered the following victimisation as a result of his making the complaint of sexual harassment: He was placed in a segregation cell for three days from 26 March 2007; he was transferred from 29 March 2007 to 15 November 2007 to the ‘acute ward’; he was assaulted on 5 July 2007 by DCS Officer Danny Palmer; he was assaulted on 21 September 2007 by DCS Officer Darren Williams; he was assaulted on another occasion by another inmate; and there were ‘a lot more’ incidents until November 2007 which made him suffer but he had no evidence of these matters.
47 The Tribunal has the power to amend the claims at any stage of the proceedings: See ADA Section 103 and Chand v Rail Corporation of New South Wales (EOD) [2007] NSWADTAP 54.
48 Ms Anderson submitted that a recent decision of Deputy President Hennessy which refused Mr Dezfouli leave to proceed with other similar claims should be persuasive to the present Tribunal. In Dezfouli v Justice Health and anor [2008] NSWADT 99, Mr Dezfouli sought leave to proceed with previous, different, but similar in nature, disability discrimination and sexual harassment complaints against Justice Health and the Department of Corrective Services which had been declined by the President of the Anti-Discrimination Board as lacking in substance and which were partly out of time. Deputy President (Deputy President) Hennessy, declined leave to proceed; she said,
- ’11. Are the respondents providing such a service? Even if Mr Dezfouli identifies a service, which is being provided to him, that service must be a service within the meaning of that term in the AD Act . The Federal Court has decided that accommodation of prisoners in cells within a prison system is not a service for the purposes of the Disability Discrimination Act 1992 (Cth): Rainsford v State of Victoria & Anor (2007) 242 ALR 128; (2007) EOC 93-468 per Sunberg J at [76] to [79] . Without any findings of fact having been made about the nature of the services Mr Dezfouli says are being provided, it is not possible to determine whether those activities come within the definition of "services’ in the AD Act . However, the decision in Rainsford v State of Victoria casts some doubt on the prospects of Mr Dezfouli being able to establish that he was being provided with a "service" by either of the respondents when the alleged incidents occurred…’
49 The Tribunal notes that since that case, Deputy President Hennessy has refused leave to proceed in further, similar case in respect of Mr Dezfouli, namely, Dezfouli v State of New South Wales (Justice Health) and anor [2008] NSWADT 122.
50 The Tribunal agrees that it is desirable to have consistency in Tribunal decisions. However, this Tribunal distinguishes the decisions of Dezfouli v State of New South Wales (Justice Health) and anor [2008] NSWADT 122 and Dezfouli v State of New South Wales (Justice Health) and anor [2008] NSWADT 122, for the following reasons. First, in the said cases, Deputy President Hennessy was dealing with different issues, that is, she was considering whether to grant leave for Mr Dezfouli to proceed with claims which had been rejected by the President of the Anti-Discrimination Board as lacking in substance. Being different issues, there were different considerations to the present case where the claims were forwarded by the President. Secondly, Deputy President Hennessy did not find that Mr Dezfouli was not provided with a ‘service’ by the DCS. Rather, she found it would be problematic for Mr Dezfouli to prove a ‘service’ within the ADA was involved: In both cases, she found that Mr Dezfouli had not defined the ‘services’ involved in his complaint. However, in the present case, the services were identified as ‘strip searching to protect his and other inmates’ safety and accommodation providing an appropriate level of facilities. Last, in Dezfouli v Justice Health and anor [2008] NSWADT 99, Deputy President Hennessy found that Rainsford’s case cast ‘some doubt’ on whether Mr Dezfouli would be able to satisfy the Tribunal he had been provided with a service, and in the subsequent appeal to Rainsford’s Case, the Full Federal Court in Rainsford v State of Victoria [2008] FCAFC 31, said it saw ‘some strength in the view that the provision of transport and accommodation, even in a prison, may amount to a service or facility’.
51 Ms Anderson submitted that the Tribunal should refuse to allow Mr Dezfouli to include the claims of victimisation because he was a serial complainant, unreliable, his claims were ‘just nonsense’, and it was unfair to DCS staff to have to deal with such claims. The Tribunal notes that each application to amend a claim should be determined on its own merits.
52 The Tribunal notes the reports in the President’s Report, including that of Ms Boyko, which indicate that on inquiry, other bodies have found no substance in Mr Dezfouli’s claims. However, the Tribunal notes that different arenas have different objectives and limits on inquiries into complaints, and so the fact that other bodies and persons have found Mr Dezfouli’s claims not to be substantiated does not finalise for the Tribunal the issue of whether Mr Dezfouli has suffered unlawful discrimination. Whether Mr Dezfouli’s claims of unlawful sexual harassment can be substantiated by him is a matter for determination by the subsequent Tribunal.
53 The Tribunal notes that it is often difficult for self-represented applicants to fully and precisely particularise their claims before hearing, even without the impediments which Mr Dezfouli faces of being an inmate and a forensic patient. The Tribunal has a discretion to permit claims to be included for hearing despite them not being fully articulated in the original complaint: See ADA Section 103. The Tribunal notes that although Mr Dezfouli did not give specific particulars of his claims of victimisation until the hearing on 9 April 2008, in the President’s Report there are claims by Mr Dezfouli that he has been assaulted, victimised and the like in his complaints to the Board, in the President’s report: See for example his letters dated 22 July 2007 at pages 69-74 of the President’s report and 7 January 2008 (ibid, pages 139-141). Also, the Tribunal notes the statement dated 11 May 2007 by Shaun State (ibid, pages113-114) and the report dated 30 January 2007 by Nurse Tim Castle (ibid, page 90) indicate that Mr Dezfouli’s claim of victimisation may have some substance. Further, the Tribunal notes the report of psychiatrists Drs Kasinathan and Wilcox, at pages 115-116 of the President’s Report, which indicate that Mr Dezfouli was stable and not delusional at the relevant time.
54 After considering the matter, the Tribunal finds that the claims cited by Mr Dezfouli in the hearing were referred to in his letters to the Board, are directly related to his claims referred by the President to the Tribunal, and are not of an age which would make them problematic for the Tribunal to determine: Chand v Rail Corporation of New South Wales (EOD) [2007] NSWADTAP 54, paragraph 38. After considering the matter, the Tribunal amends Mr Dezfouli’s claims to include the claim of victimisation under Section 50 of the ADA.
55 The Tribunal notes that there are aspects of Mr Dezfouli’s claims which may be problematic which are outside the ambit of the present decision. For example, Mr Dezfouli noted in the hearing that he had no evidence as to some alleged incidents of victimisation, and to succeed in his claims, Mr Dezfouli must satisfy the Tribunal to the civil standard of proof: Briginshaw v Briginshaw (1938) 60 CLR 336, per Dixon J at 361-2, and Burns v Laws (EOD) [2008] NSWADTAP 32, at paragraphs 133-152. Further, Mr Dezfouli may need leave of the Tribunal under the Felons (Civil Proceedings) Act 1981 to proceed with his claims: See Hall v State of NSW (Department of Corrective Services) [2006] NSWADT 243. Section 4 of that Act provides that ‘A person who is in custody as a result of having been convicted of, or found to have committed, a serious indictable offence may not institute any civil proceedings’ without leave of the Court may impact on Mr Dezfouli’s claims. Since it appears that Mr Dezfouli has remained unfit to plead he may not come within that Act: Richard Lawrence Maddrell v Public Trustee of New South Wales [1996] NSWSC 333. However, more evidence would be needed to determine this and other issues. In any case, these are matters for another Tribunal to determine.
DECISION
- 1. The subject matter of Mr Dezfouli’s complaints relates to the provision of ‘services’ within the Anti-Discrimination Act.
2. Leave is granted for the complaint referred by the President to be amended to include allegations of victimisation.
3. The Applicant is to file with the Registry and serve on the Respondents a statement of the particulars of his claims of victimisation before or on 21 days from the date of this decision.
4. The matter is listed for a Case Conference on a date to be fixed by the Registry.
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