Colgar v Hardwick

[2013] NSWADT 254

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Colgar v Hardwick [2013] NSWADT 254
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 Turner v State Transit Authority [2004] NSWADT 89 Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92
Category:	Principal judgment
Parties:	Nezahat Colgar (Applicant) Robert Hardwick (Respondent)
Representation:	N Colgar (Applicant in person) Norton Rose Fullbright Australia (Respondent)
File Number(s):	131099

REASONS FOR DECISION

Introduction

1. Ms Colgar complains that from November 2011 to October 2012 Dr Hardwick, a consultant paediatrician, discriminated against her on the ground of a presumed mental illness. Ms Colgar attended Dr Hardwick's practice with her son, who is now 10 years old, on nine occasions during 2011 and 2012. Ms Colgar says that doctors have been influenced by Dr Hardwick's opinion that she has a mental illness and that has prevented her from accessing objective medical care for her son.

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: Anti-Discrimination Act 1977 (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. Ms Colgar says she first contacted Dr Hardwick in March 2011. After the initial appointments Dr Hardwick referred her son for various tests. After obtaining the results, Ms Colgar says that in November 2011 Dr Hardwick, "made a decision in his mind" that "the mother is over anxious and may possibly have a mental disorder." While Ms Colgar does not say that Dr Hardwick ever said those words to her or to other doctors, she says he wrote that "the child has been seen by multiple specialists and many investigations have been done but nothing has been found."

1. From November 2011, Ms Colgar says that Dr Hardwick ignored her for 7 months and influenced other doctors to ignore her as well. While her son had four appointments with Dr Hardwick between November 2011 and May 2012, Ms Colgar says she had to seek the intervention of her general practitioner to arrange an emergency appointment in…