Dezfouli v Justice Health and Forensic Mental Health Network

Case •

[2024] NSWCATAD 288

•

30 September 2024

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Dezfouli v Justice Health and Forensic Mental Health Network [2024] NSWCATAD 288
Hearing dates: On the papers
Date of orders: 30 September 2024
Decision date: 30 September 2024
Jurisdiction:Administrative and Equal Opportunity Division
Before: D. Ziegler, Senior Member
Decision:

(1)   A person is appointed as a guardian ad litem for Saeed Dezfouli in proceedings 2024/00086486.

(2)   A person is appointed as a guardian ad litem for Saeed Dezfouli in proceedings 2024/0017023.

(3)   A person is appointed as a guardian ad litem for Saeed Dezfouli in proceedings 2024/00226225.

(4)   A person is appointed as a guardian ad litem for Saeed Dezfouli in proceedings 2024/00207539.

(5)   The person is to be appointed from the Guardian Ad Litem Panel which is the panel constituted as the Guardian Ad Litem Panel by the Secretary of the Department of Communities and Justice.

Catchwords:

PRACTICE AND PROCEDURE – appointment of guardian ad litem – capacity.

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Health Services Act 1997 (NSW)

Mental Health Act 2007 (NSW)

Cases Cited:

Choi v NSW Ombudsman [2018] NSWCATAD 248

Dezfouli v Corrective Services [2011] NSWADT 11

Dezfouli v Justice Health and Forensic Mental Health Network; Dezfouli v Justice Health and Forensic Mental Health Network; Dezfouli v Justice Health and Forensic Mental Health Network; Dezfouli v NSW Ombudsman [2019] NSWCATAD 31

Dezfouli v Pulley [2014] NSWCATAD 1

Slaveski v State of Victoria and Others [2009] VSC 596

Texts Cited:

Nil

Category:Principal judgment
Parties:

Proceedings 2024/00170203
Saeed S Dezfouli (Applicant)
Justice Health and Forensic Mental Health Network (Respondent)

Proceedings 2024/0086486
Saeed S Dezfouli (Applicant)
Justice Health and Forensic Mental Health Network (Respondent)

Proceedings 2024/00207539
Saeed S Dezfouli (Applicant)
Justice Health and Forensic Mental Health Network (Respondent)

Proceedings 2024/00226225
Saeed S Dezfouli (Applicant)
Justice Health and Forensic Mental Health Network (First Respondent)
Nurse Bernadette (Second Respondent)
Representation:

Proceedings 2024/00170203
Self-represented (Applicant)
M Sterry (Forensic Legal Officer) (Justice Health and Forensic Mental Health Network)

Proceedings 2024/0086486
Self-represented (Applicant)
M Sterry (Forensic Legal Officer) (Justice Health and Forensic Mental Health Network)

Proceedings 2024/00207539
Self-represented (Applicant)
M Sterry (Forensic Legal Officer) (Justice Health and Forensic Mental Health Network)

Proceedings 2024/00226225
Proceedings 2024/00226225
Saeed S Dezfouli (Applicant)
Justice Health and Forensic Mental Health Network (First Respondent)
Nurse Bernadette (Second Respondent)
File Number(s): 2024/00086486, 2024/00170203, 2024/00226225 & 2024/00207539
Publication restriction: Nil

REASONS FOR DECISION

  1. This decision involves an interlocutory application made by Justice Health and Forensic Mental Health Unit (Justice Health) for appointment of a guardian ad litem (GAL) for Mr Dezfouli.

  2. The application is made in relation to four separate sets of proceedings initiated by Mr Dezfouli under the Anti-Discrimination Act 1977 (NSW) (the AD Act). Justice Health is a respondent in all of those matters. In one of those matters (2024/00226225), a nurse employed by the first respondent (Ms Bernadette) is also a respondent.

  3. Mr Dezfouli strenuously opposes the appointment of a GAL. Ms Bernadette has not commented on the issue.

  4. Justice Health is a statutory health corporation constituted under s 41 of the Health Services Act 1997 (NSW).

  5. Mr Dezfouli is a forensic patient detained in a mental health facility which is managed by Justice Health.  He was found to have deliberately set a fire in 2002 in the offices of the Community Relations Commission in Sydney, and to have caused the death of a staff member and extensive damage to the premises. In 2004, a jury found Mr Dezfouli to be not guilty of the offences of manslaughter and “maliciously damage property by fire” by reason of mental illness.

  6. There have been a number of previous Tribunal proceedings where applications have been made for the appointment of a GAL for Mr Dezfouli.

  7. In 2011, the NSW Administrative Decisions Tribunal exercised the power to appoint a GAL for Mr Dezfouli: Dezfouli v Corrective Services [2011] NSWADT 11 (the 2011 Dezfouli decision). 

  8. In 2014, this Tribunal decided to appoint a GAL for Mr Dezfouli in Dezfouli v Pulley [2014] NSWCATAD 1.

  9. More recently, in Dezfouli v Justice Health and Forensic Mental Health Network; Dezfouli v Justice Health and Forensic Mental Health Network; Dezfouli v Justice Health and Forensic Mental Health Network; Dezfouli v NSW Ombudsman [2019] NSWCATAD 31 (the 2019 Dezfouli decision), this Tribunal declined to appoint a GAL for Mr Dezfouli.

  10. In the 2019 proceedings the Tribunal had of its own motion listed for determination the question of whether a GAL for Mr Dezfouli should be appointed. Justice Health (which was a respondent in those proceedings also) did not support the appointment of a GAL at that time. The Tribunal found that Mr Dezfouli’s condition had significantly improved since 2011, and concluded that it was not satisfied that Mr Dezfouli lacked capacity to represent himself.

  11. Justice Health now submits that the clinical advice concerning Mr Dezfouli has changed since 2019, and that Mr Dezfouli has clinically deteriorated to the point where he no longer has the capacity to represent himself. Justice Health also submits that if Mr Dezfouli continues to represent himself, it may have an adverse clinical effect on him, delaying his transition through care.

  12. For the reasons that follow I have decided to exercise the power to appoint a GAL for Mr Dezfouli.

Materials

  1. The following materials are relied upon by Justice Health in connection with this interlocutory application:

  1. The application for appointment of a GAL lodged by Justice Health on 1 August 2024;

  2. Justice Health’s written submissions lodged on 1 August 2014;

  3. A report of Dr Christina Matthews dated 31 July 2024 and lodged with the Tribunal on 1 August 2024;

  4. Justice Health’s further written submissions lodged on 22 August 2024, attaching a copy of its submissions of 1 August, a copy of Dr Matthews report of 31 July, a document entitled “Recent decided cases brought by the applicant in NCAT as per caselaw” and an academic article entitled “Vexatious Litigants and Unusually persistent Complaints and Petitioners From Querulous Paranoia to Querulous Behaviour”.

  1. The following materials are relied upon by Mr Dezfouli:

  1. Written submissions lodged on 13 August 2024 attaching multiple documents including a copy of Dr Matthews’ report, an excerpt from the Mental Health Act 2007 (NSW), a copy of an order made by the Tribunal on 11 July 2024 in 2024/00086486 (granting leave for Mr Dezfouli’s victimisation complaint to proceed pursuant to s 96(1) of the AD Act), various medical reports relating to Mr Dezfouli dated between 2005 and 2008, copies of letters from Mr Dezfouli to the Ambassador of the Islamic Republic of Iran, copies of letters from Mr Dezfouli to various members of Parliament and government agencies, copies of letters to Mr Dezfouli from the NSW Independent Commission against Corruption and the Health Care Complaints Commission (HCCC), copies of correspondence regarding Mr Dezfouli issued by the Australian Federal Police, and a copy of a newspaper article dated 10 April 2008 entitled “Mental Health Blasted”;

  2. Written submissions lodged on 5 September 2024 attaching many of the same documents as are attached to Mr Dezfouli’s earlier submissions, as well as additional documents, including copies of further correspondence from Mr Dezfouli to various members of Parliament, correspondence to Mr Dezfouli from the Department of Home Affairs, and records of NSW Police.

Hearing on papers

  1. At a hearing on 7 August 2024 the Tribunal made orders in relation to the interlocutory application.

  2. In those orders the Tribunal noted that Justice Health had filed its interlocutory application on 1 August 2024, and that the application contained the evidence and submissions relied upon by Justice Health. The Tribunal also noted that Mr Dezfouli had sent his response to the Tribunal and to Dr Matthews.

  3. The Tribunal made orders for further material to be filed by the respondent by 21 August 2024, and by the applicant by 4 September 2024.

  4. Order 4 made by the Tribunal on 7 August 2024 states “The GAL application will, by consent of the parties, be determined ‘on the papers’ after 5 September 2024”. I see no reason to disturb that order. I am satisfied that the issues in dispute can adequately be determined in the absence of the parties by considering the written materials they have each lodged. In this regard I note that at the hearing on 7 August, when the parties consented to the matter being determined without a hearing, Mr Dezfouli had already received and responded to the medical report of Dr Matthews, which is the evidence that is central to Justice Health’s application.

Power to appoint a GAL and applicable principles

  1. The general rule in the Tribunal is that a party “has the carriage of the party's own case and is not entitled to be represented by any person”: Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), s 45(1). However, the Tribunal may appoint a person to act as a “guardian ad litem” for a party: s 45(4).

  2. The NCAT Act, and the regulations and rules made under that Act, provide no express guidance about the factors to be taken into account in exercising the power conferred by s 45(4). There is no statutory requirement, for example, that the party be partially or totally incapable of representing himself or herself.

  3. The Tribunal has issued Guideline 2 “Representatives for people who cannot represent themselves (GALs)” (the Guideline), which provides guidance about the role of a GAL, the process for appointing a GAL, and the factors the Tribunal will take into account when appointing a GAL. The Guideline defines a GAL to mean (at [3]):

… a person who the Tribunal appoints to represent a party who is totally or partly incapable of representing themselves in a Tribunal case. The representative is called a GAL for short. The GAL speaks for the party at all Tribunal hearings and resolution processes such as mediations. The GAL is not a lawyer but may arrange to have a lawyer represent him or her.

  1. The Guideline explains the role of a GAL at [12]:

[T]o resolve the case or run the hearing on behalf of the party. The GAL must always act in a way that is in the best interests of the party. The GAL does not have to do what the party wants them to do. If the parties agree to settle the case, the Tribunal must take into account the interests of the party being represented by a GAL before approving any settlement.

  1. The Guideline states that a GAL may either be a relative or friend of the subject person or a member of the GAL Panel managed by the Legal Services Branch of the Department of Communities and Justice: at [7].

  2. The Guideline goes on to list the factors the Tribunal will take into account when deciding whether to appoint a GAL at [10] – [11]:

a) the “guiding principle” of the Act which is to facilitate the just quick and cheap resolution of the real issues in the proceedings

b) the nature and extent of the party’s incapacity

c) the effect of any incapacity on the party’s ability to represent themselves.

In particular, the Tribunal will take into account the effect of the party’s incapacity on the party’s ability to:

a) understand the nature of the matter or the issues in dispute

b) present their views

c) respond to the other party’s arguments

d) act in their own best interests.

  1. The Guideline, is not binding, but it reflects relevant common law principles: Choi v NSW Ombudsman [2018] NSWCATAD 248 at [13].

  2. In considering the principles governing the exercise of the power to appoint a GAL under s 45(4) in the 2019 Dezfouli decision, the Tribunal said:

14. In 2011, one of NCAT’s predecessors, the NSW Administrative Decisions Tribunal (ADT), exercised the power to appoint a GAL for Mr Dezfouli: Dezfouli v Corrective Services [2011] NSWADT 11 (the 2011 Dezfouli decision). That appointment was made under the now repealed Administrative Decisions Tribunal Act 1997 (NSW), which gave the ADT power to appoint a representative for a party “if it appears to the Tribunal that a party is an incapacitated person”: s 71(4). Section 71(7) of that Act defined an “incapacitated person” to include:

a person who is totally or partially incapable of representing himself or herself in proceedings before the Tribunal because the person is intellectually, physically, psychologically or sensorily disabled, of advanced age, a mentally incapacitated person or otherwise disabled.

15. In its reasons for the 2011 Dezfouli decision, the Tribunal cited with approval Slaveski v State of Victoria and Others [2009] VSC 596 in which Kyrou J posed at [32] a series of questions that his Honour considered might be relevant to the determination of whether a self-represented plaintiff has the requisite capacity to conduct legal proceedings:

(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?

…

18. The questions posed by Kyrou J in Slaveski (set out in [15] above) have been applied by the NSW Supreme Court in Smilevska v Smilevska [2015] NSWSC 1794 at [32]; Mao v AMP Superannuation Ltd; Mao v BT Funds Management Ltd [2014] NSWSC 1794 at [104]; Re WS [2017] NSWSC 745 at [31]. See also TA v IA [2017] NSWSC 1597.

  1. In approaching the question of whether a GAL should be appointed for Mr Dezfouli in the 2019 Dezfouli decision, the Tribunal took into account the considerations listed in the Guideline at [10] and [11], together with the questions posed by Kyrou J in Slaveski v State of Victoria and Others [2009] VSC 596: at [29]. I have adopted the same approach.

Evidence about Mr Dezfouli’s capacity

Medical evidence

  1. Justice Health relies on a clinical report made by Dr Christina Matthews dated 31 July 2024. Dr Matthews is a consultant psychiatrist and the medical superintendent at the mental health facility where Mr Dezfouli is detained.

  2. Dr Matthews says that Mr Dezfouli has a mental illness as defined under the Mental Health Act 2007 (NSW). She says the features of this illness specific to his case include paranoid/persecutory delusions, thought form disorder and disorganised behaviour. She explains:

Mr Dezfouli’s psychiatric illness has resulted in the evolution of an entrenched, systematised delusional system of persecution that was present at the time of the offence that led him to become a forensic patient. This currently manifests in the belief that [Justice Health], the broader forensic system and various government agencies are intent on persecuting and mistreating him. On an affective level, Mr Dezfouli becomes stressed and angered when reflecting on these false beliefs.

Mr Dezfouli has attempted to manage the negative cognition and emotions he experiences due to his mental illness, via litigious and querulous behaviour. Such examples have included lodging numerous applications to the Anti-Discrimination Board NSW and NSW Civil and Administrative Tribunal, reporting complaints of abuse by the Justice Health NSW staff to NSW Police, and querulous letter writing to a range of public office staff, public figures and media outlets. At times, the correspondence produced by Mr Dezfouli is threatening and fear-inducing. Such examples include two incidents in 2019 and 2023 where Mr Dezfouli sent packages containing a white powder substance to the NSW Premier’s office and HCCC respectively. These actions led to the initiation of a counter-terrorism responses [sic].”

  1. Dr Matthews says that Mr Dezfouli’s “chronic accusatory stance and subsequent querulous behaviour” reveal “complex motivating factors” which she explains as follows:

It is likely that his behaviour brings him short-term relief that ‘the system’ is aware of the inner turmoil he experiences secondary to his persecutory delusions. It is also likely that these behaviours function as a way of expressing anger towards those whom he believes to be complicit in his ongoing unjust detention, as evidenced by the often highly personal, threatening content of his complaints and correspondence. Additionally, Mr Dezfouli has expressed significant concerns around being at liberty in the future. Once again, due to his delusional system, he holds the belief that he will be targeted by the authorities in the community. His accusatory and threatening behaviour limits his treating team’s ability to develop a transition plan, resulting in a prolonged hospital admission, which Mr Dezfouli may unconsciously associate with safety and containment.

  1. Dr Matthews goes on to say that Justice Health is of the opinion that Mr Dezfouli’s behaviour is a direct result of his psychotic illness and that this specifically affects his ability to participate in legal proceedings. She says that his illness has resulted in an inaccurate perception of the role and goals of a legal inquiry and that the nature and urgency of his complaints are further affected by delusional ideation. She says:

Given his persecutory delusions are so tightly held, it is difficult for him to balance information presented in the context of legal proceedings to make rational decisions.

Justice Health is of the opinion that Mr Dezfouli does not have capacity to represent himself in the course of a hearing before a court or relevant legal body. He is limited in his capacity to submit legal applications and rationally prepare for a case. The compulsory provision of an independent legal representative/Guardian ad litem to represent Mr Dezfouli in all legal matters would not only serve the court or relevant legal body but would alsoensure that Mr Dezfouli is more fairly represented in a legal sense. There may also be a therapeutic benefit to Mr Dezfouli in terms of the opportunity to engage and develop trust with a supportive independent advocate.

  1. Mr Dezfouli has not submitted any recent medical evidence to the Tribunal. The documents relied upon by Mr Dezfouli include reports prepared by health practitioners between 2005 and 2008. Given the age of those reports they are of minimal assistance in assessing Mr Dezfouli’s present capacity and I have given no weight to them.

Mr Dezfouli’s view

  1. Mr Dezfouli has provided lengthy written submissions which I have read and carefully considered. He commences his submissions by stating “Dr Christina Matthews has written a fabricated letter to you full of lies”. He says that the documents and medical reports attached to his submissions show that he is “an intelligent, articulate, educated and knowledgeable man” and “not as crazy as [Dr Matthews] claims”. He says that he has “legal and human rights” under ss 68 and 69 of the Mental Health Act2007 (NSW) and that “the respondent doesn’t call the shots, I call the shots”. He says that he will not accept being represented by a GAL and asserts that any GAL appointed will be “incompetent, un-knowledgeable, corrupt, under-qualified and stupid”.

  2. Mr Dezfouli’s submissions make serious but unsubstantiated allegations against Dr Matthews, and include criticisms of, and comments about, Dr Matthews which are personal and offensive. His submissions also include wide-ranging and unsubstantiated complaints regarding the care he has received, and the behaviour of staff, at the hospital where he is currently detained and at other NSW health facilities, and make generalised allegations against various government agencies. Many of those complaints are also couched in language which is vitriolic and combative in nature.

  3. Mr Dezfouli submissions acknowledge the serious conduct referred to in Dr Matthews’ report. He agrees that in 2019 he posted washing powder to the office of the then NSW premier, and that he sent “sweetener powder” in an envelope to the HCCC. He attempts to justify this behaviour. He says that “the buck stops with the Premier and I wrote to her about my stagnant case and situation and what I observe and experience in here but she ignored me”. He says the HCCC “told me that they don’t deal with the Mental Health Hospitals in NSW and hung up on me so I got pissed off, and wanted to punish them”.

  4. Mr Dezfouli’s submissions and attachments also contain information about a range of other matters, including for example about the obligations of NSW public health providers under privacy legislation, and about Mr Dezfouli’s efforts to be repatriated to Iran.

  5. Mr Dezfouli concludes his submissions by saying that he will not meet with any GAL and will not give instructions to, or talk to, any GAL, and that he requests that like in 2019, the Tribunal decides that he can represent himself in his NCAT proceedings.

Justice Health’s other materials

  1. The academic article relied upon by Justice Health is generic in nature. It does not relate directly to Mr Dezfouli and is not discussed in Dr Matthews’ report. I have afforded no weight to it.

  2. I have had regard to the list of recently decided cases relied upon by Justice Health. It lists ten decisions between 2018 and 2024 involving proceedings in the Tribunal in which Mr Dezfouli was the applicant.

Should the power to appoint a GAL for Mr Dezfouli be exercised?

  1. The issue I must decide is whether Mr Dezfouli is, at the present time, capable of representing himself in these proceedings. As the Tribunal said in the 2019 Dezfouli decision at [30]:

That Mr Dezfouli has a psychiatric illness is not determinative of the question of whether he is capable of representing himself in these proceedings. Nor is the fact that in 2003 he was found by the MHRT to be unfit to stand trial for the offences of manslaughter and malicious damage to property, and the following year found by a jury of the Supreme Court to be not guilty of those offences by reason of mental illness: see Dezfouli v R [2007] NSWCCA 86 at [6]-[14]. Nor is it determinative that in 2011 and 2014 differently constituted Tribunals found Mr Dezfouli to be incapable of representing himself in proceedings concerning complaints made by him under the Anti-Discrimination Act. The issue I must determine is whether he is now incapable of representing himself in the substantive proceedings.

  1. Dr Matthews’ report is the only available contemporaneous medical evidence. It clearly indicates that Mr Dezfouli does not have capacity to represent himself in legal proceedings. Dr Matthews opines that Mr Dezfouli’s psychotic illness has resulted in querulous and litigious behaviour which affects his ability to participate appropriately in legal proceedings. Among other things, his illness results in an inaccurate perception of the goals and role of legal proceedings, rendering it difficult for him to balance information presented in the context of legal proceedings or to make rational decisions.

  2. Mr Dezfouli’s submissions (and the letters written by Mr Dezfouli which he has attached to his submissions) are well-written and articulate. They reflect that Mr Dezfouli is intelligent, educated and knowledgeable. However, the content of those submissions, and the documents which Mr Dezfouli has chosen to rely on in support of his submissions, in my view give credence to Dr Matthews’ opinion and to the position of Justice Health. My reasons for this are as follows:

  1. Mr Dezfouli’s submissions do not grapple in any substantive way with Dr Matthew’s opinions regarding the question of capacity. Rather, Mr Dezfouli’s submissions contain unfounded, personal and at times highly derogatory accusations against Dr Matthews and against Justice Health’s legal representative. They also contain serious but unsubstantiated allegations against the mental health system generally. The combative and vitriolic nature of Mr Dezfouli’s submissions corroborate Dr Matthew’s views regarding his persecutory delusions, and his difficulty in balancing information presented in the context of legal proceedings to make rational decisions. They reveal a lack of understanding about the type of evidence and arguments required to refute Dr Matthew’s evidence and indicate that Mr Dezfouli’s incapacity seriously affects his ability to present his views and respond to arguments in an appropriate manner.

  2. Mr Dezfouli’s acknowledgment of his conduct in 2019 in sending white powder substances to the then NSW Premier and to the HCCC, and his misguided attempts to justify that behaviour, exhibit a lack of understanding of the seriousness of those actions and align with Dr Matthews’ opinions regarding Mr Dezfouli’s accusatory stance and querulous behaviour. Mr Dezfouli’s attempts to minimise and justify his conduct give rise to serious concerns that Mr Dezfouli lacks insight into the possible adverse effects of his conduct, and that his ability to respond to arguments and act in his own best interests is seriously compromised.

  3. The wide-ranging allegations made by Mr Dezfouli against Justice Health, its staff and other government agencies, and the information provided about his health care and other matters, are not relevant to Mr Dezfouli’s contention that he has the requisite capacity to represent himself in the proceedings. Similarly, his repeated references to his “legal and human rights” under ss 68 and 69 of the Mental Health Act2007 (NSW) are misconceived. Section 68 of the Mental Health Act sets out the Parliament’s intentions regarding the general principles that are, as far as practicable, to be given effect to with respect to the care and treatment of people with a mental illness or mental disorder. Under s 69 it is an offence for an authorised medical officer, or any other person employed at a mental health facility to “wilfully strike, wound, ill-treat or neglect a patient or person detained at the facility”. Neither of these provisions are relevant to the question I must decide, which is whether Mr Dezfouli has the capacity to represent himself in the proceedings. Again, these irrelevant and misconceived submissions raise doubts about Mr Dezfouli’s ability to understand the issues in dispute in the proceedings, to respond to the other party’s arguments, and to act in his own best interests.

  4. Attached to both sets of Mr Dezfouli’s written submissions are dozens of pages of supporting documents. I have outlined the nature of those documents earlier in these reasons. With regard to the majority of those documents, Mr Dezfouli has not provided any cogent explanation as to why he seeks to rely on them, or how they support his position. Many of them are more than a decade old and relate to Mr Dezfouli’s long-held grievances with the mental health system and other government agencies. It is not apparent how they are relevant to supporting Mr Dezfouli’s position regarding capacity. The fact that he seeks to rely on such documents, without proper explanation, supports Dr Matthews’ evidence regarding Mr Dezfouli’s incapacity and its effect on his ability to effectively represent himself in the proceedings.

  5. Mr Dezfouli’s reliance on voluminous materials and lengthy submissions which do not support his position also gives rise to concerns that if Mr Dezfouli was to represent himself in the proceedings, he would have difficulty complying with his obligation in s 36(3) of the NCAT Act. That provision requires litigants to cooperate with the Tribunal to give effect to its ‘guiding principle’, which is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

  1. Justice Health’s list of Mr Dezfouli’s previous applications made to this Tribunal also support Dr Matthews’ opinion. In two of those proceedings (involving applications for access to information made under the Government Information (Public Access) Act 2009 (NSW)) Mr Dezfouli was successful or partially successful. In all of the other matters in the list, including all of the claims brought under the AD Act, he has been unsuccessful. I note however, that the list provided by the respondent does not include the recent decision of the Tribunal in Dezfouli v Justice Health and Forensic Mental Health Network [2024] NSWCATAD 189 where the Tribunal exercised its discretion to grant leave for Mr Dezfouli’s victimisation complaint to proceed pursuant to s 96(1) of the AD Act. In that decision, the Tribunal said at [34]:

The Applicant has made numerous complaints to this Tribunal alleging contraventions of the Act and has been largely unsuccessful in having leave granted or having his complaints substantiated. This does not mean, however, that every complaint made by the Applicant is automatically lacking in substance or has limited prospects of success.

  1. Although Mr Dezfouli had success in that matter (noting that the substantive claim is yet to be determined), the overall history of Mr Dezfouli’s complaints to the Tribunal demonstrate the challenges he faces in grasping the real issues in the proceedings, and understanding the type of evidence required to succeed in claims brought under the AD Act.

  2. Having regard to Dr Matthews’ report, to the history of proceedings brought by Mr Dezfouli under the AD Act, and to Mr Dezfouli’s own evidence and submissions, I am satisfied that Mr Dezfouli’s psychotic illness has affected his capacity to represent himself in these proceedings, and that this incapacity will significantly impede Mr Dezfouli’s ability to present his views, to respond to Justice Health’s arguments, to act in his own best interests and to co-operate with the Tribunal to facilitate the just, quick and cheap resolution of the real issues in dispute.

  3. For these reasons I have decided to exercise my discretion in favour of appointing a GAL for Mr Dezfouli in the substantive proceedings.

Confidentiality

  1. In Dr Matthews’ report she comments on problems which she says have arisen as a result of Mr Dezfouli accessing medical records and Justice Health’s confidential information via Tribunal proceedings. She says that Justice Health recommends that only Mr Dezfouli’s legal representatives be given permission to review his medical records or confidential documentation. However, at this time, Justice Health does not appear to have made any application to the Tribunal for confidentiality orders under s 64 of the NCAT Act. If such an application is made by Justice Health, the Tribunal will consider it at the appropriate time, after giving the parties an opportunity to make submissions in relation to that issue.

Orders

  1. I make the following orders:

  1. A person is appointed as a guardian ad litem for Saeed Dezfouli in proceedings 2024/00086486.

  2. A person is appointed as a guardian ad litem for Saeed Dezfouli in proceedings 2024/0017023.

  3. A person is appointed as a guardian ad litem for Saeed Dezfouli in proceedings 2024/00226225.

  4. A person is appointed as a guardian ad litem for Saeed Dezfouli in proceedings 2024/00207539.

  5. The person is to be appointed from the Guardian Ad Litem Panel which is the panel constituted as the Guardian Ad Litem Panel by the Secretary of the Department of Communities and Justice.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.


Registrar

Decision last updated: 30 September 2024

Cases Citing This Decision

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