Zhang v State Of NSW (NSW Department Of Education) [2019] FCCA 2678 (20 September 2019)

Last Updated: 26 September 2019

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZHANG v STATE OF NSW (NSW DEPARTMENT OF EDUCATION)

[2019] FCCA 2678

Catchwords: HUMAN RIGHTS – Disability discrimination – application brought by a mother on behalf of her adult son – whether the son has a disability and whether the son requires a litigation guardian considered.

Legislation: Disability Discrimination Act 1992 (Cth) Federal Circuit Court Rules 2001 (Cth)

Applicant:

JIAMING SUN ZHANG

Other Representative:

MINHUA ZHANG

Respondent:

STATE OF NSW (NSW DEPARTMENT OF EDUCATION)

File Number:

SYG 723 of 2019

Judgment of:

Judge Driver

Hearing date:

20 September 2019

Delivered at:

Sydney

Delivered on:

20 September 2019

REPRESENTATION

Ms M Zhang appeared on behalf of the applicant

Counsel for the Respondent:

Ms T Harris-Roxas

Solicitors for the Respondent:

Wotton & Kearney Lawyers

INTERLOCUTORY ORDERS

(1) Upon publication of today’s reasons for judgment, Ms Zhang is to show a copy to Mr Zhang and invite him, if he wishes, to make a written statement as to what he would like done with these precent proceedings.
(2) No further steps are to be taken in this case in the absence of a medical report dealing specifically with Mr Zhang’s need for a litigation guardian or a notice of address for service from a legal practitioner being filed on behalf of Mr Zhang.
(3) If no medical report on the question of the need for a litigation guardian is filed within six months and if no notice of address for service by a legal practitioner is filed within six months, these proceedings would thereafter be dismissed as dormant proceedings.
(4) In the event that the matter is dismissed as dormant proceedings, the dismissal will be with no order as to costs, but in other respects costs of proceedings are reserved.

FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY

SYG 723 of 2019

JIAMING SUN ZHANG

Applicant

MINHUA ZHANG

Other Representative

And

STATE OF NSW (NSW DEPARTMENT OF EDUCATION)

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application lodged on 22 March 2019 and filed on 26 March 2019 seeking relief in respect of alleged disability discrimination. The application was brought by Minhua Zhang, who is the mother of Jiaming Sun Zhang.
2. Mr Zhang turned 18 years of age on 26 March 2019. When the matter came before me for directions on 29 April 2019 questions were raised, first as to whether Mr Zhang suffers from any relevant disability, and secondly, if he does suffer from a disability, whether that disability prevents him from bringing proceedings on his own behalf. Pursuant to rule 17.02 of the Federal Circuit Court Rules 2001 (Cth) I ordered that there be a preliminary hearing on those questions as separate questions.
3. For the purposes of today’s hearing on these separate questions Ms Zhang relies upon her affidavit made on 3 May 2019 as well as documents subpoenaed from the NSW Department of Education. The bundle of documents I marked as exhibit A1. The Department of Education did not object to the receipt of the evidence, provided that it was subject to submissions on relevance.
4. Annexed to Ms Zhang’s affidavit is a medical report by Dr Mark Yim, a consultant psychiatrist. It is dated 6 December 2018 and it is addressed “To Whom it May Concern”. Dr Yim reports that he has diagnosed and treated Mr Zhang for the following conditions: major depressive disorder, generalised anxiety disorder with panic attacks and agoraphobia. Dr Yim ventures the opinion that Mr Zhang’s medical conditions are temporary and may fluctuate and run episodic courses. Despite the challenges he has made steady and ongoing progress in the 12 months prior to the date of the report. He was at that time taking no medication. Dr Yim recommended that Mr Zhang be provided with the following academic provisions: first, staggered assessment due dates whenever possible; and secondly, extended and flexible due dates within reason, exempted from academic penalty.
5. The documents subpoenaed from the Department of Education and marked as exhibit A1 establish that the Department recognised that Mr Zhang had a disability that required some accommodations. I find that Mr Zhang suffers from a relevant disability for the purposes of the Disability Discrimination Act 1992 (Cth).
6. The fact that these proceedings have been brought in Mr Zhang’s name by his mother, although he has now attained the age of 18 years, presents a difficulty, as I have explained to Ms Zhang. Several things are apparent from what she told me from the bar table. The first is that Dr Yim is opposed to these proceedings being brought as he does not consider legal proceedings over alleged disability discrimination by the Department of Education to be in Mr Zhang’s best interests. It follows that he would be unwilling to provide a further report to assist Ms Zhang to establish that Mr Zhang requires a litigation guardian. Secondly, on its face the report by Dr Yim does not point to a disorder which would prevent Mr Zhang from understanding the nature of the present legal proceedings such that he would require a litigation guardian.
7. I was told that Mr Zhang has substantially completed his secondary studies and has been admitted to the University of Canberra to undertake full-time study. His condition makes it extremely difficult for him to interact with others in social or other circumstances. He spends most of his time on his own. That isolated state, however, should not prevent him from conducting legal proceedings with the assistance of a legal practitioner.
8. A real difficulty for the Court is that there is no indication of Mr Zhang’s wishes in relation to these legal proceedings. Ms Zhang has told me that she raised the question of the proceedings with her son and that he initially declined to respond, although at a later time he did express some support. The evidence discloses that Mr Zhang, prior to attaining the age of 18 years signed an authority to act in favour of his mother in relation to her complaint to the Australian Human Rights Commission. That would suggest that he understood the nature of that complaint and the process surrounding it.
9. The available material does not persuade me that Mr Zhang requires a litigation guardian, and further, there is no clear evidence that he himself wishes the proceedings to continue. For her part, Ms Zhang’s pursuit of these proceedings appears to have been influenced by her own life experience, and her desire to support her son.
10. I conclude that several things would need to be done for these proceedings to continue to a hearing. The first is that Mr Zhang should be shown these reasons of the Court and invited to express his wishes in writing. Secondly, if the question of a litigation guardian is to be pursued, there would need to be a medical report establishing that Mr Zhang needs a litigation guardian on medical grounds. Based on what I have been told by Ms Zhang, that is unlikely to be forthcoming. In the absence of such a report, the proceedings could only be continued by Mr Zhang in person, which appears most unlikely, or by a legal practitioner on his behalf.
11. In discussion with the representatives, it was accepted that there should be no order as to costs if the proceedings go no further, and that costs should otherwise be reserved.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate:

Date: 24 September 2019