El Kassir v Benjamin

[2012] NSWADT 70

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	El Kassir v Benjamin [2012] NSWADT 70
Hearing dates:	28 February 2012
Decision date:	28 February 2012
Jurisdiction:	Equal Opportunity Division
Before:	Magistrate N Hennessy, Deputy President
Decision:	Leave for the applicant's complaint of disability discrimination to proceed is refused.
Catchwords:	LEAVE - complaint of disability discrimination in the provision of services by a medical practitioner declined as lacking in substance - whether fair and just for complaint to proceed
Legislation Cited:	Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997
Cases Cited:	Jones and Anor v Ekermawi [2009] NSWCA 388 Turner v State Transit Authority & anor [2004] NSWADT 89
Category:	Principal judgment
Parties:	Hani El Kassir (Applicant) Dr Samir Benjamin (Respondent)
Representation:	H El Kassir (Applicant - in person) Avant Law Pty Ltd (Respondent)
File Number(s):	121005

REasons for decision

Introduction

1. Mr El Kassir complained to the President of the Anti-Discrimination Board that a psychiatrist, Dr Samir Benjamin, had discriminated against him on the ground of his disability. The President declined the complaint as lacking in substance. Mr El Kassir has applied to the Tribunal for permission for his complaint to proceed: Anti-Discrimination Act 1977 (AD Act), s 96. The Tribunal has a discretion to grant or refuse leave for the complaint to go ahead and will be guided by what is fair and just in the circumstances: Jones and Anor v Ekermawi [2009] NSWCA 388. When deciding whether to grant leave, the Tribunal may have regard to the grounds on which the President may decline a complaint under s 92(1) of the AD Act, including that the complaint lacks substance.

1. In order to assess whether the complaint should proceed I need to examine both the factual and legal basis for the complaint.

Factual basis for the complaint

1. Mr El Kassir wishes to join the Police Force. In June 2011, as part of a pre-employment screening program for new recruits, he attended a psychiatric assessment with Dr Hampshire.

1. Mr El Kassir then made an appointment with Dr Benjamin to obtain a second psychiatric assessment requested by the NSW Police medical provider, Recovre. He attended Dr Benjamin's office on 11 August 2011. Mr El Kassir says that he told Dr Benjamin that he had suffered from co-morbid depression and anxiety which was related to post-traumatic stress disorder. He was prescribed anti-depressants and anti-anxiety medication but said that he has been well for years. Mr El Kassir also told Dr Benjamin that he had been inaccurately diagnosed with schizophrenia as a teenager and had been prescribed anti-psychotic medication.

1. Dr Benjamin provided a report dated 23 August 2011. Although that report was not in evidence, I assume that the conclusion reached was that Mr El Kassir was not a suitable recruit.

1. Mr El Kassir claims that Dr Benjamin was biased against him, that he did not take into account a "Beck Depression Test" that he administered prior to the consultation, that he was not competent or thorough and that…