NZ v NSW Department of Housing

[2008] NSWADTAP 67

Appeal Panel - Internal

CITATION:	NZ v NSW Department of Housing [2008] NSWADTAP 67
PARTIES:	APPLICANT NZ RESPONDENT NSW Department of Housing
FILE NUMBER:	089043
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	8 August 2008
DATE OF DECISION:	22 October 2008
BEFORE:	Hennessy N - Magistrate (Deputy President); Molony P - Judicial Member; Bolt M - Non-Judicial Member
CATCHWORDS:	Appointment of representative
DECISION UNDER APPEAL:	NZ v NSW Department of Housing (No. 2) [2008] NSWADT 5
FILE NUMBER UNDER APPEAL:	063415
DATE OF DECISION UNDER APPEAL:	03/07/2008
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Privacy and Personal Information Protection Act 1998
REPRESENTATION:	APPLICANT In person RESPONDENT No appearance
ORDERS:	Ms Janina Szyndler is appointed to represent NZ in these proceedings.

Introduction

1 NZ has appealed against a decision of the Tribunal handed down on 7 January 2008. The Tribunal's decision was to take no further action in relation to alleged breaches of the Privacy and Personal Information Act 1998 (PPIP Act) by the Department of Housing. The Appeal Panel has decided to appoint a person to represent NZ because it appears to us that she is an “incapacitated person” within the definition of that term in section 71(4) of the Administrative Decisions Tribunal Act 1997 (ADT Act). Our reasons for that decision are set out below.

2 On 18 July 2008 the Appeal Panel asked the Registry to write to NZ advising her that the Panel had formed a preliminary view that she was not capable of representing herself in these proceedings because of a psychological or psychiatric disability. That view was based on the content of the Tribunal file and the appeal documents. NZ was invited to provide a medical report or any other evidence which demonstrated her capacity to represent herself and was advised that the Panel would make a determination on the papers as to her capacity after receiving that material: ADT Act, section 76.

3 On 22 and 23 July 2008 NZ faxed two separate bundles of material to the Tribunal. In those submission NZ focused on the way she has been treated by the Tribunal rather than on her capacity to represent herself in proceedings. She also provided a number of reports from medical practitioners although several were not complete. It is clear from these reports that NZ exhibits obsessive-compulsive behaviours, suffers from chronic anxiety and that her condition manifests itself with agoraphobia (a morbid fear of having anxiety symptoms in public places) and social phobia (extreme fear of dealing with people face-to-face). According to a psychologist who has examined her, Dr Hugo Rodriguez, her condition includes situational phobia (a phobic response to specific triggering stimuli such as clutter). According to Dr Pam Young, a registered psychologist, she has not been able to commence treating NZ because NZ insists that she cannot commence treatment until a range of issues affecting her condition have been resolved.

4 The Tribunal made the following observations of NZ’s disability and her conduct at [20] to [21] of the written reasons for decision:

NZ suffers from a psychological condition (severe agoraphobia and social phobia) that prevents her from leaving her home. She has provided a number of reports from her general practitioner and treating psychologist attesting to this. Even when discussing her application with the Tribunal on the phone, NZ quickly becomes distressed. NZ also seems to experience difficulty in organising and collating the documents that she states are relevant to her claims. She appears to overcompensate for her isolation by submitting sometimes hundreds of pages of documents, not all of which are complete, many of which appear not to be directly relevant, and on which she often makes handwritten notations and adds highlighting.

This tends to confuse the reader and makes it difficult to understand the nature of NZ’s claims, some of which seem to be very general in nature, without specific reference to the PPIP Act, and which appear to represent her belief that various members of her family, her neighbour, and the officers of various agencies are involved in "fraudulent" activity and in making false allegations with the aim of bringing her into disrepute and damaging her reputation. I have done my best to sort through the documents provided by NZ and, with reference to NZ’s oral submissions, the following addresses the other complaints made by NZ of breaches of her privacy. I note that some of these complaints relate to events that took place some years ago, which raises potential problems for NZ in terms of the time within which a complaint must be made and a review sought. I have chosen to ignore any such problems because, in my view, NZ’s complaints are, in any event, lacking in substance.

5 NZ was represented by a barrister appointed by the Legal Aid Commission in relation to part of her application and represented herself in relation to the remainder. She is representing herself in this appeal.

6 Section 71 of the ADT Act relates to the representation of parties:

(1) A party to proceedings before the Tribunal may:

(a) appear without representation, or

(b) be represented by an agent, or

(c) if the party is an incapacitated person-be represented by such other person as may be appointed by the Tribunal under subsection (4).

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

7 An "incapacitated person" is defined in section 71(7) to mean:

(a) a minor, or

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

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

8 Before appointing a person to represent NZ it must appear to us that she is totally or partially incapable of representing herself because of her disability. Applications by NZ to the Tribunal since 2005 have resulted in at least 30 reported decisions, 19 at first instance 11 on appeal. The frequency of these applications, the voluminous documentation she submits and the lack of relevance and clarity of those submissions persuades us that she is not capable of representing herself. In our view she needs to have a person appointed to act in her best interests so that potentially meritorious applications and appeals can be identified and pursued. Similarly a person with the skills to rationally and objectively assess her grievances would be able to withdraw any applications or appeals, which were doomed to fail. An instrument of appointment has been prepared and will be forwarded to the parties.

Order

9 Ms Janina Szyndler is appointed to represent NZ in these proceedings.