Colgar v Curtin

[2013] NSWADT 255

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Colgar v Curtin [2013] NSWADT 255
Hearing dates:	5 November 2013
Decision date:	12 November 2013
Jurisdiction:	Equal Opportunity Division
Before:	Magistrate N Hennessy, Deputy President
Decision:	Leave is refused for the applicant's complaint of presumed disability discrimination to proceed.
Catchwords:	ANTI-DISCRIMINATION - whether fair and just for declined complaint of disability discrimination against doctor to proceed - whether doctor providing services to mother of 10 year old patient -
Legislation Cited:	Anti-Discrimination Act 1977
Cases Cited:	Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92
Category:	Principal judgment
Parties:	Nezahat Colgar (Applicant) Julie Curtin (Respondent)
Representation:	N Colgar (Applicant in person) Curwoods Lawyers (Respondent)
File Number(s):	131098

reasons for decision

Introduction

1. Ms Colgar complains that Dr Curtin, Clinical Senior Staff Specialist in the Haematology Department of Westmead Children's Hospital, has discriminated against her on the ground of a presumed mental illness in breach of the Anti-Discrimination Act 1977. Ms Colgar says that when she was at the Hospital seeking treatment for her 10 year old son, Dr Curtin ignored her son's symptoms, did not do her job properly, sent her to a mental hospital to cover up her colleagues' mess and continually called her a mentally ill person. Mrs Colgar's main concern is that the Hospitals' records state that she is mentally ill and that means her son cannot get the treatment which he desperately needs.

1. The President of the Anti-Discrimination Board declined the complaint as lacking in substance. Ms Colgar requested that it be referred to the Tribunal. She needs the Tribunal's permission before her complaint can go ahead: AD Act, s 96. Ms Colgar has the onus of persuading the Tribunal that it is fair and just for her complaint to proceed, keeping in mind the purposes of the AD Act: Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143, per Schmidt AJ.

Background

1. The Hospital provided a summary of Ms Colgar's interactions with various doctors including Dr Curtin and the tests which were undertaken on her son. Ms Colgar expressed general disagreement with the Hospital's characterisation of these events but did not challenge any of the assertions in particular. I will first set out the Hospital's version and then set out Ms Colgar's allegations.

1. According to Dr Curtin the most relevant facts in relation to the complaint include:

(a)   the child was extensively investigated for symptoms of breathlessness and cough from the age of two, by both private doctors and respiratory physicians at the Hospital. On 7 May 2012 doctors from the Hospital raised concerns regarding the number of investigative procedures that the child had undergone despite essentially normal investigations.

(b)   From the end of…