Dezfouli v Justice Health and Forensic Mental Health Network (No 9)

[2018] NSWCATAD 170

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Dezfouli v Justice Health and Forensic Mental Health Network (No 9) [2018] NSWCATAD 170
Hearing dates:	12 June 2018
Date of orders:	06 August 2018
Decision date:	06 August 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Dr J Lucy, Senior Member
Decision:	1. The disclosure of the second respondent’s name is prohibited. 2. Leave to proceed with the complaints of sexual harassment is refused.
Catchwords:	ANTI-DISCRIMINATION – Where complaint of sexual harassment declined by President of Anti-Discrimination Board as lacking in substance – Application for leave to proceed with complaint -- Whether fair or just to grant leave NON-PUBLICATION ORDER – Principle of open justice – Whether desirable to make order prohibiting publication of name of individual against whom applicant’s complaints had been made
Legislation Cited:	Anti-Discrimination Act 1977 Civil and Administrative Tribunal Act 2013 Government Information (Public Access) Act 2009
Cases Cited:	Bacirongo v ACL Pty Ltd [2011] NSWADT 12 Commissioner of Police v Mohamed [2009] NSWCA 432 Briginshaw v Briginshaw (1938) 60 CLR 336 Dezfouli v Corrective Services [2011] NSWADT 11 Dezfouli v Department of Corrective Services [2008] NSWADT 277 Dezfouli v Department of Corrective Services [2009] NSWADT 1 Dezfouli v Justice Health [2010] NSWADT 167 Dezfouli v Justice Health and Anor [2008] NSWADT 99 Dezfouli v Justice Health and Forensic Mental Health Network [2014] NSWCATAD 5 Dezfouli v Justice Health and Forensic Mental Health Network [2014] NSWCATAD 188 Dezfouli v Justice Health and Forensic Mental Health Network [2015] NSWCATAD 11 Dezfouli v Justice Health & Forensic Mental Health Network [2018] NSWCATAD 11 Dezfouli v Justice Health and Forensic Mental Health Network [2018] NSWCATAD 83 Dezfouli v Justice Health and Forensic Mental Health Network (No 6) [2018] NSWCATAD 161 Dezfouli v Justice Health and Forensic Mental Health Network (No 7) [2018] NSWCATAD 162 Dezfouli v Justice Health and Forensic Mental Health Network (No 8) [2018] NSWCATAD 163 Dezfouli v Pulley [2013] NSWADT 223 Dezfouli v Pulley [2014] NSWCATAD 1 Dezfouli v State of New South Wales (Justice Health) and anor [2008] NSWADT 122 IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 Jones v Ekermawi [2009] NSWCA 388 O’Shane v Burwood Local Court (NSW) & Ors [2007] NSWSC 1300 Pribicevic v State of New South Wales (Department of Family and Community Services) [2014] NSWCATAD 94 Rainsford v State of Victoria [2008] FCAFC 31 State of New South Wales v Whiteoak [2014] NSWCATAP 99 State of New South Wales (Justice Health) and anor v Dezfouli [2008] NSWADTAP 69 Waters v Public Transport Corp (1991) 173 CLR 349
Category:	Procedural and other rulings
Parties:	Saeed Dezfouli (applicant) Justice Health and Forensic Mental Health Network (first respondent) DNH (second respondent)
Representation:	Counsel: L Andelman (second respondent)     Solicitors: Applicant by telephone Justice Health and Forensic Mental Health Network legal adviser (first respondent) NSW Nurses & Midwives Association, legal officer (second respondent)
File Number(s):	201800167634
Publication restriction:	The disclosure of the second respondent’s name is prohibited pursuant to s 64(1)(a) of the of the Civil and Administrative Tribunal Act 2013.

REASONS FOR DECISION

1. Mr Dezfouli is a patient in a forensic hospital operated by the first respondent (“Justice Health”). He complained that the second respondent (“the Nurse”) had sexually harassed him, in breach of the Anti-Discrimination Act 1977 (AD Act). The President of the Anti-Discrimination Board (“President”) declined his complaint as lacking in substance: AD Act, s 92(1)(a)(i).

2. Mr Dezfouli applied to the Tribunal for leave to proceed with his complaint of sexual harassment against the Nurse and Justice Health in the Tribunal.

3. The Tribunal may give Mr Dezfouli permission for his complaint to go ahead if it is fair and just to do so: Jones v Ekermawi [2009] NSWCA 388; AD Act, s 96(1). The onus is on Mr Dezfouli to satisfy the Tribunal that leave should be granted: Bacirongo v ACL Pty Ltd [2011] NSWADT 12 at [2]; Pribicevic v State of New South Wales (Department of Family and Community Services) [2014] NSWCATAD 94 at [3].

4. I have decided not to give Mr Dezfouli permission for his sexual harassment complaint to go ahead because it is highly unlikely that he would be able to substantiate it.

Background

5. On 4 November 2017, Mr Dezfouli wrote to the President complaining that the Nurse had sexually harassed him on 31 October 2017. He said that she opened the door to his shower whilst he was washing himself to give him his medications and looked at his genitals. The Nurse then went away, at his request.

6. Mr Dezfouli said that a named patient (“the Patient”) was watching television in the lounge room, which is near the bathroom, when this occurred. Mr Dezfouli claims that he asked the Patient, “Did you see what happened?” and the Patient nodded.

7. The Nurse denies she had any contact with Mr Dezfouli whilst he was showering. She says she gave him his medication that day in the dining area. She “unequivocally” denies the allegations against her. The Nurse also provided evidence that the NSW Police had investigated Mr Dezfouli’s complaint and concluded that no further investigation was required.

Confidentiality order

8. Ms Andelman, for the Nurse, submitted that, if the Tribunal were to find that Mr Dezfouli’s complaint was frivolous, vexatious, misconceived or lacking in substance, within s 92(1)(a) of the AD Act, it should make an order prohibiting the disclosure of the Nurse’s name.

9. The Tribunal does not make findings within s 92(1)(a) of the AD Act. That paragraph provides that the President may decline a complaint if satisfied of certain matters. Nevertheless, for reasons given below, the Tribunal is of the view that the complaint lacks substance and that it would not be fair or just for it to proceed.

10. I have considered “the broad principle of open justice that decisions such as [John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 and O’Shane v Burwood Local Court (NSW) & Ors [2007] NSWSC 1300] strongly affirm”: see State of New South Wales (Justice Health) and anor v Dezfouli [2008] NSWADTAP 69 at [57]. I also note s 49(1) of the Civil and Administrative Tribunal Act 2013, which gives this principle statutory expression. The principle of open justice tends against the order sought.

11. The Tribunal is, however, satisfied that it is desirable to prohibit the publication of the Nurse’s name in the circumstances of this case. The Tribunal has found the complaint against the Nurse to lack substance and publication may adversely affect her reputation, noting that she has not had an opportunity to test the allegations against her. The Tribunal notes also that Justice Health has a policy of not disclosing the full name of nurses to forensic patients, presumably because this might put them at risk. The Tribunal is mindful that disclosure of the Nurse’s name would undermine the policy of Justice Health not to disclose the full name of the nursing staff members to patients. Although Mr Dezfouli now knows the Nurse’s full name, other patients would be able to discover it by reading this published decision. This is a factor the Administrative Decisions Tribunal Appeal Panel took into account in suppressing the name of a staff member about whom Mr Dezfouli had complained in State of New South Wales (Justice Health) and anor v Dezfouli [2008] NSWADTAP 69 at [88].

12. For these reasons, the Tribunal orders, pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act, that the disclosure of the second respondent’s name is prohibited.

Sexual harassment complaint

13. To succeed in a complaint of sexual harassment against either of the respondents, Mr Dezfouli would have to prove that, in the course of receiving services from a person, that person engaged in unwelcome conduct of a sexual nature in relation to him in circumstances in which a reasonable person would have anticipated that Mr Dezfouli would be offended, humiliated or intimidated (AD Act, ss 22A and 22F).

Identification of services

14. Mr Dezfouli has not identified the services that he was receiving at the relevant time from either respondent. As Magistrate Hennessy noted in relation to a previous discrimination complaint made by Mr Dezfouli (Dezfouli v Justice Health and Anor [2008] NSWADT 99 at [10]):

“It is essential when alleging discrimination in the provision of services that the services that are being provided are precisely defined: IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 16-17 per Brennan CJ and McHugh J.”

15. McHugh J also stressed the importance of defining the relevant services with precision in Waters v Public Transport Corp (1991) 173 CLR 349, where his Honour said (at 404-5) “the relevant goods or services must be identified with sufficient precision to relate them to the facts of the case and the issues which arise for determination.”

16. The Full Court of the Federal Court has likewise observed that the way in which the service is identified is critical: Rainsford v State of Victoria [2008] FCAFC 31 at [72].

17. Mr Dezfouli’s failure to identify the services with which he was provided makes it more difficult for him to discharge his onus of persuading me that the complaint should proceed.

Were either of the respondents providing services?

18. The term “services” is defined in s 4(1) of the AD Act to include:

“(a) services relating to banking, insurance and the provision of grants, loans, credit or finance,

(b) services relating to entertainment, recreation or refreshment,

(c) services relating to transport or travel,

(d) services of any profession or trade,

(e) services provided by a council or public authority,

(f) services consisting of access to, and the use of any facilities in, any place or vehicle that the public or a section of the public is entitled or allowed to enter or use, for payment or not.”

19. The definition is inclusive and the term “services” has its ordinary meaning (IW v City of Perth (1997) 191 CLR 1 at 23; State of New South Wales v Whiteoak [2014] NSWCATAP 99 at [145]-[147]). The only one of the specified examples which appears to be potentially applicable is “services provided by a … public authority” (paragraph (e)). However, there must be some doubt as to whether Justice Health was providing Mr Dezfouli with “services” whilst he was detained in a forensic hospital.

20. In State of New South Wales v Whiteoak [2014] NSWCATAP 99, the President of the Tribunal, Justice Wright, reviewed the authorities and concluded that, if a governmental function or statutory duty is being performed and the persons affected have no ability to decide whether to accept or reject what is done or the outcome, it is unlikely that services are being provided (at [158]). This is because the ordinary meaning of "services" does not include "a fundamental integer of a system over which those affected have no or almost no control" (at [211]).

21. Ms Andelman, for the Nurse, submitted that the decision in Commissioner of Police v Mohamed [2009] NSWCA 432 (see Basten JA at [36]-[37], Spigelman CJ agreeing) casts doubt upon the correctness of Whiteoak. It is not necessary for me to decide, for the purposes of this leave application, whether this is so. It is enough to note that the Nurse, at least, would be unlikely to contend that Mr Dezfouli was not being provided with a service, if the matter were to go to hearing, assuming that the relevant service was adequately identified.

Unwelcome conduct of a sexual nature

22. If the complaint were to proceed, Mr Dezfouli would have to establish that the Nurse engaged in unwelcome conduct of a sexual nature. In Dezfouli v State of New South Wales (Justice Health) and anor [2008] NSWADT 122 at [13], Magistrate Hennessy expressed the view that Mr Dezfouli’s complaint that a staff member of Justice Health looked him up and down in the shower did “not fall squarely into the category of conduct of a sexual nature.” In Dezfouli v Department of Corrective Services [2008] NSWADT 277, which concerned another complaint by Mr Dezfouli that a staff member looked at his genitals in the shower, a differently-constituted tribunal said: “it seems to me that the applicant would have difficulties in persuading a Tribunal that the conduct alleged was ‘of a sexual nature.’” Thus, there must be some doubt that Mr Dezfouli could establish, if leave were granted, that the Nurse’s alleged conduct was “of a sexual nature.”

23. Ms Andelman, for the Nurse, submitted that it would be unfair for the complaint to proceed, because Mr Dezfouli had made numerous other sexual harassment complaints against nurses in similar terms. Ms Andelman said that the complaint the subject of Mr Dezfouli’s application for leave was part of a course of conduct of bringing vexatious complaints. Justice Health supported the Nurse’s submissions.

24. Ms Andelman referred to evidence in the President’s report, mainly provided by Mr Dezfouli, that he had made other complaints. She also referred to the following written decisions of the Tribunal:

1. Dezfouli v Corrective Services [2011] NSWADT 11, where a representative in the nature of a guardian ad litem was appointed for Mr Dezfouli;

2. Dezfouli v Pulley [2014] NSWCATAD 1, where the Tribunal granted Mr Dezfouli leave to proceed with his complaint of victimisation and appointed a guardian ad litem to represent him;

3. Dezfouli v Justice Health and Forensic Mental Health Network [2014] NSWCATAD 188, where Mr Dezfouli’s complaint of discrimination on the grounds of disability was dismissed;

4. Dezfouli v Justice Health and Forensic Mental Health Network [2015] NSWCATAD 11, where leave was granted for part of Mr Dezfouli’s complaint of sexual discrimination to proceed in the Tribunal;

5. Dezfouli v Justice Health & Forensic Mental Health Network [2018] NSWCATAD 11, where Mr Dezfouli’s application under the Government Information (Public Access) Act 2009 for access to information was partially successful; and

6. Dezfouli v Justice Health and Forensic Mental Health Network [2018] NSWCATAD 83, where I refused Mr Dezfouli leave to proceed with the complaints of sexual harassment and sexual discrimination against a nurse.

25. Only the sixth and possibly the third of the matters above support Ms Andelman’s submission that Mr Dezfouli makes vexatious complaints, including about nurses.

26. Ms Andelman relies upon references to complaints made by Mr Dezfouli in my decision in Dezfouli v Justice Health and Forensic Mental Health Network [2018] NSWCATAD 83 at [37] and [38]. Those paragraphs are as follows:

”38 There are, however, in this case, factors which make it unlikely that Mr Dezfouli would be able to prove that Ms van Herp engaged in the alleged conduct of grabbing his genitals and making a suggestive comment. Mr Dezfouli has made a lot of complaints in the past, many about the conduct of Justice Health and its staff members. Whilst the respondents did not provide evidence of these complaints, Mr Dezfouli provided the Anti-Discrimination Board with material relating to some of those complaints, as outlined above, which is before the Tribunal. These make extremely serious and quite outrageous allegations, with little supporting material (certainly insufficient material to reach the state of reasonable satisfaction referred to in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362). Mr Dezfouli has recently complained that at least two other named nurses sexually harassed him and that four nurses, whose names he has not provided, woke him up, wanting to perform oral sex on him.

39 Mr Dezfouli has also made previous complaints of sexual harassment in the Tribunal. In the case of Dezfouli v Justice Health and Anor [2008] NSWADT 99 at [3], Magistrate Hennessy describes a sexual harassment complaint made by Mr Dezfouli, relating to the period of 2005 to 2006, as follows:

‘The sexual harassment complaint alleges that nurses have touched his arms and hands while talking to him which made him uncomfortable. He also says that he has been improperly touched around the genitals by prison officers while they were searching him. He alleges that officers have made improper comments such as “big dick”. According to Mr Dezfouli, a night nurse once said to him, “If you put your dick out of the latch I will suck it for you”. He said he told the nurse to “fuck off” or he would call the prison officer.’”

27. The references in these paragraphs provide some material supporting the proposition that Mr Dezfouli has made sexual harassment complaints in the past without any substantial evidence to support them.

28. Ms Andelman submitted that the Tribunal should have regard to other cases in which Mr Dezfouli had made allegations similar to those made against the Nurse. Decisions of this Tribunal and the former Administrative Decisions Tribunal in response to Mr Dezfouli’s applications include:

1. Dezfouli v Justice Health and anor [2008] NSWADT 99, refusing Mr Dezfouli leave to proceed with complaints of disability discrimination and sexual harassment in relation to services provided to him by nurses and prison officers;

2. Dezfouli v State of New South Wales (Justice Health) and anor [2008] NSWADT 122, refusing Mr Dezfouli leave to proceed with a sexual harassment complaint that an employee of Justice Health came into the shower room when he was naked to give him some papers;

3. Dezfouli v Department of Corrective Services [2008] NSWADT 277, in which the Tribunal refused leave for a complaint to proceed, the complaint being that a staff officer of the respondent entered the shower room where Mr Dezfouli was showering and had his eyes on Mr Dezfouli’s genitals;

4. Dezfouli v Department of Corrective Services [2009] NSWADT 1, where the Tribunal granted leave for a complaint of victimisation, as a result of a previous complaint that a Departmental officer had sexually harassed Mr Dezfouli, to proceed;

5. Dezfouli v Justice Health [2010] NSWADT 167, a decision dismissing his complaints of racial discrimination against medical practitioners;

6. Dezfouli v Pulley [2013] NSWADT 223, in which the Tribunal refused leave for Mr Dezfouli’s complaint of race discrimination against his treating psychiatrist to proceed; and

7. Dezfouli v Justice Health and Forensic Mental Health Network [2014] NSWCATAD 5, where the Tribunal refused to grant leave for a complaint of disability discrimination to proceed.

29. The second and third of the above matters are particularly relevant to the credibility of Mr Dezfouli in relation to the present complaint, as they suggest that he has made similar allegations before, which were not substantiated. It should be noted, however, that in both of those matters (unlike the present) the person against whom the allegation was made admitted being in the area of the showers at the same time as Mr Dezfouli. This diminishes the force of any contention that the complaints were entirely contrived. These and the other complaints, except the fourth, provide some support for the Nurse’s submission that Mr Dezfouli has a history of making discrimination and sexual harassment complaints which are without merit.

30. It is also to be noted that, immediately after the hearing of this application for leave to proceed, the Tribunal heard three other applications made by Mr Dezfouli for leave to proceed with complaints against Justice Health which had been declined by the President. Two of these were complaints of victimisation (Dezfouli v Justice Health and Forensic Mental Health Network (No 6) [2018] NSWCATAD 161 and Dezfouli v Justice Health and Forensic Mental Health Network (No 7) [2018] NSWCATAD 162) and one was a complaint of disability discrimination (Dezfouli v Justice Health and Forensic Mental Health Network (No 8) [2018] NSWCATAD 163). I refused leave in all three matters, finding that the complaints lacked substance. In Dezfouli v Justice Health and Forensic Mental Health Network (No 6) [2018] NSWCATAD 161 at [14], I found that a number of elements of Mr Dezfouli’s complaint cast doubt upon its credibility.

29. Ms Andelman referred to material in the President’s report which indicated that Mr Dezfouli had used abusive language so that he would be sent back to his country of origin, Iran. An extract from a doctor’s report about Mr Dezfouli, which Mr Dezfouli sent to the President, states:

“On 20 July 2017, Mr Dezfouli said that he had sought asylum in Australia in 1983 because Iran had been in war. He denied having had any criminal charges in Iran. He was advised not to use obscene and abusive language in his letter. He responded in a joking manner ‘Hey I am crazy’ and added ‘But I take your point’. He explained that he used abusive language as a strategy to aggravate people so he could be repatriated sooner.”

32. Ms Andelman referred to evidence that, on the day the incident involving the Nurse is alleged to have occurred, the Nurse refused to allow Mr Dezfouli to make photocopies, in accordance with Justice Health policy. Ms Andelman relied upon the Nurse’s evidence that he then said to her, “If you are rigid towards me, I’m going to be rigid back to you.”

33. The evidence that Mr Dezfouli deliberately aggravates people and that he threatened the Nurse on the day he claims the shower incident occurred supports Ms Andelman’s submission that his complaint is vexatious. There are also a significant number of published decisions in which the Tribunal has rejected Mr Dezfouli’s complaints of discrimination or sexual harassment, some in which his credibility has been questioned. If the matter were to proceed, I consider that the Tribunal would be likely to accept Ms Andelman’s submission that Mr Dezfouli’s present complaint is part of a course of conduct of bringing vexatious complaints, particularly having regard to the large number of discrimination complaints he has brought in the Tribunal, many being dismissed at an early stage.

34. Another significant factor affecting the likelihood that Mr Dezfouli’s account will be accepted is that the only evidence to support this is his own word, and the Nurse strongly denies that the incident occurred.

35. Mr Dezfouli said that, if the complaint were to proceed, he could summons the Patient to give evidence, and the Patient would give evidence which would support his version of events. He said that Justice Health’s investigation did not include an interview of the Patient and that this illustrated how partial the investigation was.

36. Mr Dezfouli has provided no direct evidence from the Patient in support of his leave application. Mr Dezfouli’s evidence is that the Patient was watching television at the time of the alleged incident. Even if it is accepted that the conversation between Mr Dezfouli and the Patient occurred as Mr Dezfouli has reported it, this does not establish that the Patient saw the Nurse open the shower door and look at Mr Dezfouli’s genitals.

37. Mr Dezfouli has the onus of establishing that leave should be granted, and has not persuaded the Tribunal that the Patient’s evidence would help him.

Conclusion

38. I am not persuaded that it is fair or just for Mr Dezfouli’s complaints of sexual harassment against the respondents to proceed. Having regard to the matters raised above, including both the legal and evidentiary obstacles faced by Mr Dezfouli, I consider that it is very unlikely he would be able to substantiate those complaints.

ORDER

1. The disclosure of the second respondent’s name is prohibited.

2. Leave to proceed with the complaints of sexual harassment is refused.

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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: 06 August 2018