RM v University of Newcastle

[2006] NSWADT 46

CITATION:	RM v University of Newcastle [2006] NSWADT 46
DIVISION:	General Division
PARTIES:	APPLICANT RM RESPONDENT University of Newcastle
FILE NUMBER:	053259
HEARING DATES:	3/02/06
SUBMISSIONS CLOSED:	02/03/2006
DATE OF DECISION:	02/13/2006
BEFORE:	Wilson R - Judicial Member
CATCHWORDS:	Appointment of representative
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997
REPRESENTATION:	APPLICANT In person RESPONDENT No appearance
ORDERS:	Application dismissed.

1 The matter now before the Tribunal is an interlocutory application by the Applicant pursuant to s.71(4) of the Tribunal’s enabling legislation seeking the appointment of a representative to act in the substantive proceedings on the Applicant’s behalf. This same interlocutory application is made also in relation to related proceedings between the Applicant and the North Sydney and Central Coast Health Service (matter 053260). The two interlocutory applications were heard together this day, the evidence in both applications being the same.

2 The Applicant appeared in person in both applications, the Respondent University advising that it would not appear. Ms. O’Farrell appeared for the Health Service Respondent.

3 The Applicant tendered two medical reports (exhibit A) and a letter (exhibit B) which outlined the distress he had experienced at an earlier planning meeting and the attempts that he had made to obtain legal assistance. He also informed the Tribunal of several factual matters in response to questions asked by the Tribunal. This information was accepted as credible evidence without the need to confirm it by sworn testimony.

4 It is clear from this evidence that the Applicant has for a long time suffered from a psychological condition which has involved both depression and anxiety. His treating psychiatrist is of the view that during the course of personal interactions and in conflict situations in particular he could experience severe anxiety which could give rise to either aggression or withdrawal from the anxiety provoking circumstances. Should he endeavour to meet situations like this with medication to an excessive level he would experience impairment of his memory, attention and concentration. The Tribunal accepts this evidence from the Applicant’s psychiatrist. He was under her care and treatment during the year 2005 during which he saw her every 3 months.

5 During 2005 he also obtained treatment by way of group therapy. These sessions were conducted over 8 week periods, four times during the year. He Applicant attended weekly for around 1.5 hours each attendance. He found this therapy “mildly assisting”.

6 The Applicant gave evidence that he experienced a panic attack at the first planning meeting held in these proceedings, which lasted for a whole day. At that time he considered whether he should not continue with his applications in this Tribunal. However, he subsequently decided to continue with them and he has obtained statements of evidence which he has filed and served. He also obtained relevant evidence for these interlocutory applications. This evidence is relevant and to the point. Apart from this panic attack, the Applicant has suffered nothing untoward arising from the proceedings to date.

7 Following his experience at the first planning meeting the Applicant has taken medication to assist him at the second planning meeting and at the hearing of these interlocutory applications. He has represented himself cogently on both these occasions. The evidence he has presented has been relevant to the issues at hand and has been delivered in a controlled and confident manner.

8 The Applicant has experienced feelings of frustration arising from his unsuccessful attempts to obtain legal assistance in the past, but he has dealt with this by bringing these two interlocutory applications.

9 The medication that he has taken has been properly prescribed by his medical advisors to assist him in any stressful situations that he may encounter in his daily life. He has been advised to take this medication for anxiety as required without any limitation as to maximum dosage. As noted above though, excessive medication would lead to cognitive impairment.

10 During the year 2005 the Applicant did not undertake employment but occupied himself with working around his house. During the second half of the year he successfully completed a course of study in the use of personal computers which improved his user skills in particular programs, although he was already skilled to a certain degree in the use of computers prior to undertaking this course.

11 The present question for the Tribunal is whether the condition from which the Applicant suffers renders him totally or partially incapable of representing himself in the proceedings (s.71(4) and the definition of “incapacitated person”). The Tribunal is not persuaded that it does. It is more likely, on the evidence before the Tribunal, that the Applicant will be able to adequately prepare further for a final hearing, if further preparation by him be required given that the Health Service Respondent will be shortly filing evidence, it being noted though that this evidence will most likely be the same as the evidence already filed by the University Respondent. Also, the Tribunal is satisfied that the Applicant understands the factual issues in the case and will be able to make cogent submissions as to the factual findings that he believes the Tribunal should make at the final hearing. At the moment there are no complex legal issues arising from the evidence filed to date.

12 In addition, the appointment of a representative being discretionary, the nature of the case as it presently stands and the Tribunal’s powers to question witnesses and otherwise obtain evidence, and its duty to reach the correct decision, persuade the Tribunal that the condition from which the Applicant suffers will not prejudice the Applicant at the final hearing. Consequently it is not an appropriate case for the Tribunal to exercise its discretion and grant the order sought by the Applicant. Of course, should further considerations arise in the future they may be considered and dealt with at the time.

13 The Tribunal finds in accordance with these reasons and the application is dismissed.

14 ORDERS: Application dismissed.