Forest v HK and W Investments Pty Ltd
[2014] FCCA 209
•12 February 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FOREST v HK & W INVESTMENTS PTY LTD | [2014] FCCA 209 |
| Catchwords: HUMAN RIGHTS – Disability discrimination – assistance dog – Guide, Hearing and Assistance Dogs Act 2009 (Qld) – presence of assistance dog at medical facility – whether the respondent engaged in discriminatory behaviour – whether the applicant was refused treatment because of his disability – whether the applicant was refused treatment because of behaviours that were a manifestation of his disability – victimisation – unjustifiable hardship – application dismissed. |
| Legislation: Australian Human Rights Commission Act 1986 (Cth), s.46H Disability Discrimination Act 1992 (Cth), ss.4, 5, 6, 9, 10, 11, 23, 24, 29A, 42 Guide, Hearing and Assistance Dogs Act 2009 (Qld), ss.3, 7, 8 |
| Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2004] FMCA 915 I.C.F. Spry, The Principles of Equitable Remedies (Lawbook Co., 8th ed, 2010) D C Pearce and R Geddes, Statutory Interpretation in Australia, , (Butterworths 6th Ed., 2006) |
| Applicant: | CHE FOREST |
| Respondent: | HK & W INVESTMENTS PTY LTD T/A STEVE KING DENTAL GROUP |
| File Number: | BRG 891 of 2011 |
| Judgment of: | Judge Burnett |
| Hearing dates: | 17 and 18 September 2013 |
| Date of Last Submission: | 18 September 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 12 February 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr M. Jonsson |
| Solicitors for the Applicant: | Wettenhall Silva Solicitors |
| Counsel for the Respondent: | Mr D. Morzone QC |
| Solicitors for the Respondent: | NQ Family Law Centre |
ORDERS
Application dismissed.
In default of application by either party within 7 days of these orders direct the applicant pay the respondent’s costs of and incidental to the application to be assessed.
INDEX
Introduction
Background and Facts
Grounds in the Application
Direct Disability Discrimination – Grounds 6 and 7
Refusal for Disability
Disability
Was the Applicant Treated Less Favourably?
Was the Treatment because of the Disability?
The Applicant’s behaviour
Refusal by the Respondent’s contractors to service the Applicant
Refusal on the grounds of EPC/DCCS eligibility
Discrimination in the provision of services s.24 DDA – Ground Two
Breach of the Conciliation Agreement – Ground 3
Victimisation – Ground 4
Unjustifiable Hardship – s.11, s.29A DDA
Orders
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 891 of 2011
| CHE FOREST |
Applicant
And
| HK & W INVESTMENTS PTY LTD T/A STEVE KING DENTAL GROUP |
Respondent
REASONS FOR JUDGMENT
Introduction
The Disability Discrimination Act 1992 (Cth) (“DDA”) is intended to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of, inter alia, the provision of services to ensure that those who are disabled enjoy the same right to equality before the law as the rest of the community. However, the stated objects of the DDA do not require members of the community to suffer disagreeable people simply because they are disabled if there is no connection between their poor behaviours and their disability. In this case, for reasons which follow, I am satisfied that the applicant does have a disability. However, he also has an unpleasant personality which has no relationship to his disability.
The respondent provides dental services. It does so by engaging contract dentists to service patients at its Kuranda clinic. The applicant had previously sought treatment at the clinic. His behaviour was reported on that previous occasion as being rude, aggressive, clinically non-complaint and intimidating. These behaviours were unrelated to his disability. Unsurprisingly, no one wanted to treat him. His response was to make a complaint to the Australian Human Rights Commission (“HRC”). The matter did not settle and resulted in trial.
I am satisfied that the applicant has not been the subject of unlawful disability discrimination or victimisation, and his claim fails. In any event, even if the applicant had been discriminated against, the regulatory environment has changed since he last complained against this respondent with the enactment of the Guide, Hearing and Assistance Dogs Act 2009 (Qld) (“GHAD Act”). Dogs, including assistance dogs, may now be excluded from admission to places such as surgical procedure rooms, which include dental surgeries. The applicant steadfastly refuses to accept the situation. No dental (or medical) practitioner should be required to compromise health safety to accommodate a dog in a procedure room; to allow this would constitute unreasonable hardship.
Background and Facts
The applicant’s complaint arises because of a refusal to provide services in 2010. However, the applicant and the respondent had earlier dealings in 2007 which appear to have set the scene for later events.
In 2007 the applicant had lodged a complaint with the HRC against the respondent alleging disability discrimination in the provision of goods, services and facilities under the DDA following a series of consultations in June and July of that year, when there had been exchanges between the applicant and treating dental staff concerning the presence of the applicant’s assistance dog, Knuckles. In a complaint to the HRC, the applicant stated that he had attended the respondent’s dental practice on 15 June 2007 with his dog. He explained that the dog was his assistance dog and that he would need him in his company at all times. He was told that dogs were not allowed and that the dog would have to wait outside the consulting room door. Despite his complaint that such conduct amounted to disability discrimination, he conceded the point in order to have his check-up. However, on the next occasion when the applicant attended the practice, 22 June 2007, he appears to have been insistent, noting in his statement to the HRC that he “had a tooth removed while Knuckles was in attendance in a corner in front of me.” He noted that the dog was let out while an X-ray was taken and that on two occasions the assistant had to “walk” over the dog, but that Knuckles remained still at those times. He observed that despite the appointment being a long one with several complications, Knuckles did not pose a problem of any sort, in his view. Subsequently there was a third appointment on 17 July where a significant amount of dental work was to be undertaken. The applicant says that while he was in the chair the dentist asked if the dog could be placed outside. He says that he explained to the dentist that the dog was an assistance dog, that he had a mood disorder and that she would have been aware that the dog had been in attendance when he had his last appointment. He says that the dentist said the dog could sit outside but not in the room. He maintained that if the dentist persisted her conduct could amount to unlawful discrimination. Neither Ms Helena Clarke, the dental assistant, nor Dr Karen Mudd, the treating dental practitioner, on that occasion recall the events unfolding in the benign manner stated by the applicant in his statement to the HRC.
Ms Clarke swore that she recalled the applicant’s attendance on 15 June 2007. She was the attending dental assistant and Dr Eilidh McKirdy was the treating dental practitioner. On that occasion the applicant was asked to complete a personal health questionnaire before treatment. The questionnaire did not identify any issues. The only indication of any mental health problem reported to the respondent on that occasion was the phrase on the referral letter “PERSONALITY DISORDER 2001.” Ms Clarke noted that the applicant had initially wanted a root canal in his second molar. However, the EPC scheme[1] did not cover such a procedure. It appears that a root canal had already been commenced at the Smithfield Community Health Clinic and that the applicant wished for the treating dentist to complete it. She noted that during the appointment the dentist explained that she could not do the procedure unless the applicant paid privately. However, she observed that the applicant was adamant that he would not be paying any out of pocket expenses. She observed that the applicant was very unhappy that he could not have the treatment he wanted and that he constantly interrupted the dentist in the course of conversation, not allowing Dr McKirdy to finish her sentences. She says that she could not recall his exact words but that he was demanding, rude and pushy and that she found him intimidating. She noted that he had a very angry look on his face and her concern was exacerbated by their relative sizes.[2] Ms Clarke noted that on that day the applicant ultimately only received a general check-up and clean. She also observed that he was accompanied by his dog, Knuckles. Her observation of Knuckles was that he was “mangy looking” and that he did not appear “alert nor was he well groomed. He seemed slow and dopey.” She noted that the dentist initially asked the applicant to leave the dog in the doorway of the room, but that the applicant was very unhappy about that and insisted that the dog be at the foot of the chair where he would be seated. It is evident from the floor plan of the clinic that the dental consulting room is not spacious. Ms Clarke stated that the dog would have been very close to the sterilising area and if sitting at the foot of the chair it was very probable that she might trip over him when trying to walk around the dental chair in the course of her duties. She says that the applicant explained that the dog was his assistance dog and had to be with him at all times. She says the applicant showed a card to the dentist verifying its status as an assistance dog. Notwithstanding that, Ms Clarke says that as the dentist attempted to explain to the applicant that the room was a sterile area but the applicant kept interrupting and did not appear to be listening to what she was saying. Eventually the applicant agreed to cooperate and leave the dog in the doorway of the room.
[1] See [12] below.
[2] The applicant is a large man who is at least 6 feet tall and Ms Clarke is a short woman, being approximately 5 foot 3 inches.
Ms Clarke’s recollection of the visit of 22 June was that on that occasion the applicant again enquired of a root canal which he was told would not be performed under the EPC scheme. It appears that a compromise was reached, with the applicant agreeing to have his second molar extracted. At that time the dog sat at the foot of the dental chair. Ms Clarke stated that this was problematic as she could not walk around the dog and actually had to step over him between the sterile area and the dental sink, which she did numerous times during the consultation. In addition, she was concerned because the sharps container in the consulting room was placed beside the dirty sink and that she was often carrying items whilst trying to step over the dog being careful not to trip as she moved about the room. She noted that as the applicant was looking upwards in the dental chair while undergoing treatment there was no way he could see the dog whilst treatment was being undertaken.
At the third visit on 17 July 2007, Ms Clarke says the applicant was attended by a different dentist, Dr Mudd. She noted that by this stage the applicant’s EPC had completed and he then wanted treatment under a voucher issued by Queensland Health. Ms Clarke stated that even by this time she was not aware of the applicant’s chronic and complex past psychiatric history, it not having been provided to the surgery. She noted that when he attended the clinic on 17 July Dr Mudd initially allowed the applicant to enter the treating room with his dog Knuckles as there was nowhere else within the clinic for her to speak to the applicant. Ms Clarke says that Dr Mudd sought to explain to the applicant that the Queensland Health voucher only covered certain treatment. She noted that the applicant was adamant that he did not wish to pay any out of pocket expenses, so Dr Mudd agreed to do treatment up to the value of the voucher. She says that Dr Mudd then asked the applicant why he needed the dog in the room. Ms Clarke observed that the applicant became agitated and said words to the effect of “treatment without the dog in the room is not happening.” She says that Dr Mudd then attempted to ask the applicant about his dog’s specific role but the applicant refused to discuss it further, saying “the dog remains in the surgery or I go.” Ms Clarke noted that Dr Mudd then discussed options to try and reach some compromise with the applicant, including the suggestion that the dog sit just outside the door with the door open, but that the applicant refused. She noted that Dr Mudd explained that there were sterile instruments in the room but the applicant still did not accept this as a reason for the dog to stay outside the room. Ms Clarke noted that the applicant continued interrupting Dr Mudd and refused to do what she requested. She noted that the applicant became more and more agitated and eventually refused to talk at all, getting up and leaving the room. Ms Clarke observed that dealing with the applicant was stressful because he was so rude and confrontational. She stated that she could see that Dr Mudd was also affected by the exchange, observing that she was struggling not to cry and that she appeared to be visibly shaken by the applicant’s behaviour.
Clinical notes prepared by each of the treating practitioners on those dates confirm Ms Clarke’s recollection of events. Relevantly they provide:
“Patient: 001920 Forest, Che
Date DR In Tn Details
15/06/2007 06 5/06/07 3/-/3
3/-/-
Pt very unhappy when requested dog remain outside during Rx as clinical environment. Pt not visually impaired, but had card to explain that assistance dog to be with him at all time.
EM relented, but pt said he would co-operate and leave his dog outside for this visit. Pt had very difficult attitude. Was very argumentative.
011/Examination (Initial)
CO: would like Root Canal Treatment 37. Had pulp ex at Smithfield. Explained that unable to root fill on EPC. To xla or pay privately.
…
22/06/2007 37 …
17/07/2007 pt entered surgery with dog and agreement was reached regarding treatment to be done on qhv – ie that voucher was of limited monetary value but that treatment was to be done up to the value of the voucher, even though this would not cover all the treatment.
I then proposed to talk about the pts dog “knuckles.” The pt said that treatment without the dog in the room “was not happening.” I attempted to ask the pt about his dogs specific role - ie as I understood it the dog was present in order for the pt to feel more settled. The pt said that he was not discussing this anymore and that the dog remained in the surgery or he left. The pt did not raise his voice or seem aggressive, but did appear agitated.
I suggested that knuckles wait outside the door with the door open. The pt refused this option. We discussed the fact that sterile instruments are used within the surgery – the pt did not accept this as a reason for the dog to leave.
The pt said that the dog had to be with him at all times and that I could discuss the discrimination against disabilities act in court.
I said that to give him proper care we should be able to discuss this matter to find an acceptable compromise. The pt said he refused to discuss this further and either we did his treatment or not. I attempted to continue the discussion but the pt said he did not want to talk further and left the surgery.
Karen Mudd, dentist.
qhv expires on 18/7/07.”
The evidence of Ms Clarke and Dr Mudd was essentially that the applicant’s ornery personality was very disagreeable, and he was an unpleasant person to deal with. I have no difficulty accepting that evidence on these matters in preference to the evidence of the applicant, who struck me as arrogant, egocentric and indifferent to and lacking in insight about how his behaviour might be viewed by others.
Against that history the applicant attended a medical appointment with his general practitioner (“GP”), Dr David Cuming, at the Kuranda Medical Centre on 10 March 2010 and requested a referral from Dr Cuming for dental treatment. Dr Cuming informed the applicant that he would refer him to the respondent, which also conducts a practice from a clinic within the Kuranda Medical Centre. Upon receiving the referral, the applicant was informed by the receptionist at the Kuranda Medical Centre that he would receive a telephone call from the respondent to schedule his dental appointment.
Following the issue of the referral, the respondent’s Kuranda dental assistant, Ms Clarke, received the GP referral relating to the applicant from “Kerryn,” the receptionist at the medical centre. The referral identified the problem as “EPC” dental care. “EPC” is an abbreviated reference to the Enhanced Primary Care Program. From her evidence it appears that the EPC dental care program had its genesis under an earlier program provided by Medicare, known as the Chronic Disease Dental Scheme (“CDDS”). In her role as the dental assistant under that program she would:
a)make the appointment for the client;
b)ring Medicare to ensure that the client was eligible; and
c)check that there was a GP management plan in place.
Ms Clarke initially asked Dr Mudd, one of the two dentists who regularly serviced the Kuranda clinic, whether she would be able to see the applicant. At the time Dr Mudd was pregnant. She informed Ms Clarke that she did not wish to see the applicant as she had had a previous experience with him which had been stressful for her. Given her pregnancy and her past difficulties she did not wish to expose herself to the prospect of extra stress and in particular expressed concern that the applicant might walk out on her mid-treatment, as she alleges occurred on an earlier occasion.
Ms Clarke then asked the other dentist practising at the clinic, Dr Rahele Zabeti, if she could see the applicant. Dr Zabeti is a dentist currently engaged as a contractor for the respondent. She said that she had seen the applicant’s clinical notes which indicated that there had been some difficulties in the past. She stated that because of her heart condition and the necessity for her to avoid potentially stressful situations, she too did not wish to treat the applicant. She was concerned that if he became uncooperative the stress may have exacerbated her heart condition.
Having exhausted her enquiries of the two dentists who regularly serviced the Kuranda clinic, she referred the matter to the respondent’s Cairns office to see if they could assist. The matter was then referred to John Juides, a qualified dental therapist who works in an advisory role for the respondent and is trustee of the Juides Family Trust, a shareholder of the respondent. He says that he became aware of the referral letter when informed about it by Ms Clarke, noting that it was not clear from the letter what treatment the applicant required. However, he understood that the form of treatment was under the CDDS, which he noted was for eligible patients with chronic conditions and complex care needs and provided for dental services over two consecutive years funded by Medicare. At the time of these events Mr Juides was not aware of the applicant’s chronic and complex past psychiatric history as detailed in Dr Cuming’s affidavit filed in these proceedings. However, he was aware that the applicant suffered from behavioural issues as other dentists at the clinic had made comments to that effect in clinical notes for earlier treatment.
Mr Juides made enquiries of other dentists contracted to the respondent to ascertain if one would be available to treat the applicant. That required the preparedness by a dentist both to travel to Kuranda and to treat the applicant under the relevant Medicare scheme. He observed that due to the applicant’s personality it was important that he be treated by someone experienced in dealing with patients with personality disorders. He opined that although the applicant’s personality disorder was not fully disclosed, several of the respondent’s contractors had some general knowledge of the applicant’s history and upon that basis informed him that they did not feel that they had the necessary skills or experience to treat the applicant. Another of the respondent’s contractors, Dr Brendan Makhecha, informed him that he had contacted the Australian Dental Association (“ADA”) for advice on the matter. Mr Juides stated that Dr Makhecha also did not wish to treat the applicant.
In effect, Mr Juides’ evidence was that none of the dentists contracted to the respondent to provide dental services were prepared to provide the services the subject of the referral because they felt that they lacked the necessary skills to deal with an individual manifesting the personality characteristics evident in the applicant. It is important to note that beyond the “Current History” remarks, the “MENTAL HEALTH CARE PLAN – PREPARATION – ITEM 2710 2008” and “PERSONALITY DISORDER 2001,” no one had any specific knowledge of his disabilities. There was no evidence to link his disagreeable behaviours such as rudeness, aggression, demanding and intimidating conduct to his disabilities.
In the meantime the applicant waited approximately one week before telephoning the respondent to clarify whether an appointment had been arranged for him. I infer from his evidence that he had not received any communication from the respondent in the interim. He said that during the telephone call the receptionist informed him that they could not see him as they had no dentists available, and that he would not be receiving an appointment with the respondent. He challenged the receptionist, stating that he was sure that they were accepting appointments from other patients and that they would need to provide one for him. He says that the receptionist repeated that they would not be able to assist him and told him to make other arrangements.
The applicant says that about five days later he received a telephone call from a female person later identified as Carol Wust, the respondent’s practice manager. He says that she told him that she was calling on behalf of the respondent and stated to him that the respondent would not be providing him with dental services as the respondent did not have the expertise to deal with his “special needs.” He says that he responded to this statement by informing Ms Wust that he did not have or require any “special needs” and that he was merely seeking a routine dental check-up. He says Ms Wust repeated her statement that they would not be providing him with an appointment as they were unable to meet his “special needs.” He says that he then stated:
“I have made previous complaints against you before. You know that you have to let me in. You better check with the manager (a person I now know to be John Juides) because following the conciliation conference in 2008 the manager told me that if there are any issues to make sure he is contacted. You need to confirm that you are not going to provide me with services because as far as I know I have been confirmed by [sic] the manager that services would be provided to me (or words to that effect).”[3]
He says that Ms Wust did not respond to that statement, but simply terminated the call.
[3] Affidavit of C. Forest filed 16 May 2012 at [60].
The other shareholder in the respondent is an entity controlled by Dr Steven King, a retired dentist. Dr King no longer practises because of a medical condition. He stated that the respondent now contracts with about 13 professionals to provide dental services to clients. They each are contracted to do so pursuant to a standard contractor’s agreement. He contended that the respondent was unable to compel its contracted dentists to undertake dental treatment of any kind if they chose not to. It was against this background that the respondent refused to make an appointment to treat the applicant.
Grounds in the Application
The applicant states eight grounds in his application.[4] He makes complaints against the respondent in respect of:
[4] Eight grounds are alleged in the application. Ground 1 alleges a matter of fact, not a contravention, and Ground 5 asserts a matter of law.
1.Ground 2: Discrimination in contravention of s.24 DDA by its refusal to provide dental services to the applicant since receiving a Referral Form for Dental Services from the applicant’s treating general practitioner, Dr Cuming, dated 10 March 2010 (“Referral Form”);
2.Ground 3: The conduct alleged in paragraph 1 above constituted a breach of a condition contained in a conciliation agreement entered into between the applicant and the respondent following conciliation of a previous complaint made by the applicant against the respondent which was resolved by agreement dated June 2007 (“Conciliation Agreement”);
3.Ground 4: A refusal to provide dental services as receipt of the Referral Form constituted unlawful victimisation in contravention of s.42 DDA, and that the basis for the refusal to provide such services was the applicant’s previous complaint under the DDA and related proceedings;
4.That the respondent, by refusing to provide the dental services, engaged in an act of disability discrimination within the meaning of s.5(1) and/or s.5(2) DDA, and/or acts of indirect disability discrimination within the meaning of s.6(1) and/or s.6(2) DDA. In particular, the applicant alleged:
a)The respondent asserted that the applicant would not be provided with dental services by the respondent because the respondent could not meet the applicant’s “special needs.” The applicant says that the alleged “special needs” related to his disability, or behaviour that was a symptom on manifestation of the disability, and/or the fact that he would be accompanied by an assistance dog when obtaining services from the respondent (Ground 6);
b)Insofar as the refusal of services was based upon a requirement that the applicant’s behaviour, including his telephone manner, conform to a standard that was set either subjectively or objectively by the respondent, the applicant denies that his behaviour breached any such standard or that any such breach entitled the respondent to refuse to provide him with dental services (Ground 7);
c)The respondent’s setting of the standard referred to in paragraph 4(b) above:
i. Involved the imposition of a requirement or condition within the meaning of s.6(1)(a) DDA;
ii. Because of the applicant’s disability and/or behaviour that was a symptom or manifestation of this disability, he did not or was not able to comply with this requirement or condition within the meaning of s.6(1)(d) DDA;
iii. The requirement or condition had or was likely to have disadvantaged persons with this disability within the meaning of s.6(1)(a) DDA;
iv. The requirement or condition was not reasonable having regard to the circumstances: (Ground 8).[5]
[5] Grounds 6, 7 and 8 as expressed in the application addressed a complaint of indirect disability discrimination, together with a complaint of direct disability discrimination. In opening submissions the applicant’s counsel stated that the applicant would not be pressing a claim of indirect disability discrimination: 17 Sep 2013 T4 line 37.
Logically, a consideration of the grounds should commence with an examination of the question of whether or not the respondent’s contractors have engaged in contravening conduct.[6] I have addressed the grounds from that perspective.
[6] Queensland v Forest (2008) 168 FCR 532 at [114] (per Spender and Emmett JJ) and at [17] (per Black CJ dissenting on the majority’s approach to s.9).
Direct Disability Discrimination – Grounds 6 and 7
The principal ground articulated by the applicant relates to a refusal to provide dental services. That is, he alleges an act of direct disability discrimination. Section 5 DDA addresses direct disability discrimination.[7] Relevantly it provides:
“5 Direct disability discrimination
(1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.
(2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and
(b) the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.
(3) For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments.”
[7] Ground 8 alleged, as an alternative, indirect disability discrimination. However, this ground was not pursued at trial, with the applicant recognising that he had to succeed in establishing direct discrimination or his claim would fail.
In his submissions the applicant’s counsel referred to the decision of the plurality in Purvis v New South Wales[8] at [223] and [224] in addressing the approach the Court should adopt when considering the applicant’s circumstances. In that case, the High Court considered the operation of the DDA in the context of a complaint that an education authority had discriminated against a child by seeking to exclude the child from an educational facility on the basis of the child’s disability. The child had exhibited violent behaviour at school in consequence of a condition attributable to brain damage suffered in infancy. The school principal and the relevant department determined that the child should have been enrolled in a special school and excluded from the school he was then attending. The extent of the child’s disability and his related behavioural difficulties were known to the school at the time its principal made the decision to exclude the child. The majority (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ; McHugh and Kirby J dissenting) held that the exclusion of the student did not constitute discrimination on the ground of his disability, since the educational authority would have treated a non-disabled student exhibiting the same behaviour in the same way.
[8] (2003) 217 CLR 92.
The joint judgment of Gummow, Hayne and Heydon JJ in Purvis is most instructive. Their Honours identified three issues in the appeal:
a. Was the student’s disability to be regarded as the disorder from which he suffered, or as the disturbed behaviour that resulted from the disorder?
b. Was the comparison required by s.5(1) DDA between the way the authority treated the child and the treatment that would have been afforded to a student who was not disabled but who had acted as the student had acted? Or was the comparison to be made with a non-disabled student who had not exhibited violent behaviour?
c. What is the relationship that has to exist between the disability and the alleged discriminatory conduct on the part of the educational authority?[9]
[9] At [191] to [193].
Their Honours found against the student on the second ground and dismissed the appeal. In doing so, they explained the proper operation of s.5(1):
“[213] Section 5(1) of the Act requires comparison between the treatment which the discriminator gives, or proposes to give, to the aggrieved person and the treatment that the discriminator would give, or would propose to give, to a person without the aggrieved person's disability “in circumstances that are the same or are not materially different.” If that comparison reveals that the disabled person was treated less favourably, the further question which must be asked is whether that was because of the disabled person's disability. Section 5(1), therefore, requires equality of treatment between the disabled and those who are not. Attention is invited to how the discriminator “treats or would treat a person without the disability” (emphasis added). The “comparator” identified by s.5(1) is “a person without the disability.”
[214] The comparison that is to be made is of the treatment given or proposed to be given to the disabled person and the treatment of a person without the disability “in circumstances that are the same or are not materially different.” Recognising that s.5(1) requires comparison with the treatment that would be given to a person without the disability is critical to the proper application of the Act …”
Further, their Honours considered what is meant by the reference in s.5(1) to “circumstances that are the same or are not materially different.” Their Honours held that while s.5(2) amplifies the operation of that expression, it cannot be read as requiring the provision of different accommodation or services. Their Honours stated at [218] that “… there is no textual or other basis in s.5 for saying that a failure to provide such accommodation or services would constitute less favourable treatment of the disabled person for the purposes of s.5.”
In Purvis the appellant argued that the student’s disturbed behaviour was part of his disability and that the appropriate comparison would be with a non-disabled person whose behaviour was not affected by a similar disability. That is, the required comparison involved excluding all circumstances constituting the disability. The plurality rejected that argument, stating:
“[222] It may readily be accepted that the necessary comparison to make is with the treatment of a person without the relevant disability. Section 5(1) makes that plain. It does not follow, however, that the "circumstances" to be considered are to be identified in the way the appellant contended. Indeed, to strip out of those circumstances any and every feature which presents difficulty to a disabled person would truly frustrate the purposes of the Act. Section 5(2) provides that the relevant circumstances are not shown to be materially different by showing that the disabled person has special needs. The appellant's contention, however, went further than that. It sought to refer to a set of circumstances that were wholly hypothetical - circumstances in which no aspect of the disability intrudes. That is not what the Act requires.
[223] In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, s.5(1) requires that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled. The appellant's argument depended upon an inversion of that order of examination. Instead of directing attention first to the actual circumstances in which a disabled person was, or would be, treated disadvantageously, it sought to direct attention to a wholly hypothetical set of circumstances defined by excluding all features of the disability.
[224] … There may be cases in which identifying the circumstances of intended treatment is not easy. But where it is alleged that a disabled person has been treated disadvantageously, those difficulties do not intrude. All of the circumstances of the impugned conduct can be identified and that is what s.5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different.”
[Emphasis as per original]
In summary, it appears that the plurality were of the view that s.5(1) involved two questions: first, how, in those circumstances, would the educational authority have treated a person without the student’s disability? Second, if the student’s treatment was less favourable than the treatment that would be given to a person without the disability, was that because of the student’s disability?[10] In Purvis the plurality concluded that the decision at first instance by the Human Rights and Equal Opportunity Commission in favour of the disabled student was flawed because it failed to identify the circumstances which led to his treatment. That is, there had been no determination of how a person without the disability would have been treated in circumstances which were the same or not materially different from the circumstances surrounding the student’s treatment.
[10] At [225].
Finally, the plurality also considered the requirement in s.5(1) that the aggrieved person be treated less favourably “because of” that person’s disability:
“[236] For present purposes, it is enough to say that we doubt that distinctions between motive, purpose or effect will greatly assist the resolution of any problem about whether treatment occurred or was proposed “because of” disability. Rather, the central question will always be – why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it “because of,” “by reason of,” that person's disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression “because of.””
Callinan J agreed with the joint judgment in respect of the comparator issue and the bearing that the plurality’s construction of the DDA had on it.[11] Gleeson CJ held that the comparison required by s.5(1) was with a non-disabled student who exhibited violent behaviour and required a comparison with a student without the disability, not a student without the behaviour. He also noted that the ground for action was the student’s violent conduct and the principal’s concern for the safety of other students and staff members. He observed that it was proper to take into account the objects of the DDA and the scope and purpose of the legislation, and that a decision maker may therefore identify and act on a threat to the safety or welfare of persons to whom the decision maker is responsible.
[11] At [273].
Consistent with the approach to be adopted as stated by the plurality in Purvis, the applicant’s counsel submitted the critical questions in this case were:
a)Was the applicant was disabled at the time within the meaning provided in the DDA?
b)Did the respondent treat him less favourably with respect to his admission to the respondent’s premises and facilities[12] and the provision of dental services[13] than it would have treated a person without the disability in circumstances that were not materially different?
c)If the answer to that question is in the affirmative, was that less favourable treatment because he had the disability?
[12] Contrary to s.23(a) and s.23(d) DDA.
[13] Contrary to s.24(a) DDA.
Disability
An important threshold issue raised by these criteria is whether the applicant was truly a person with a ‘disability,’ within the meaning and for the purposes of the DDA.
The DDA imposes a broad definition of the concept of “disability” for the purpose of that Act. In the context of this proceeding, a “disability” within the meaning of the Act includes a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment, or that results in disturbed behaviour. The statutory definition also provides that “a disability that is otherwise covered by this definition includes behaviour that is a symptom or manifestation of the disability.”[14]
[14] Schedule 2 DDA.
It was not in serious contention that the applicant had a disability. The issue was its symptoms and or manifestations. The evidence of his treating GP, Dr Cuming, was that the applicant had been subject to psychiatric assessment and treatment from a psychiatrist, Dr Paul Trott. Dr Cuming was aware of and concurred with Dr Trott’s diagnosis of the applicant as:
a)Suffering a personality disorder – mixed type (with anti-social, narcissistic and borderline traits), as defined in the Diagnostic and Statistical Manual of Mental Disorders (“DSM-IV”);
b)Depressive illness (dysthymic disorder) further complicated by a superimposed but current type major depressive disorder (as defined in the DSM-IV);
c)Substance use disorder (polydrug abuse) (as defined in the DSM-IV);
d)A nonverbal learning disorder;
e)Difficulty coping with stress and conflict;
f)Social anxiety.
It is important to observe that Dr Cuming acknowledged his reliance upon Dr Trott’s assessment. He had not undertaken any psychiatric training which would enable him to perform the necessary tests himself to effect that assessment. The applicant swore that these conditions made him feel from time to time confused, isolated, misunderstood, disliked, alien, shy and brash. The applicant’s counsel contended that his conduct towards the dentist on the occasion of his attendance at the respondent’s surgery on 15 June 2007 and 17 July 2007, as remarked upon by Ms Clarke, was merely reflective of the symptomology of that disability. Given the extended definition of disability provided for in s.4 DDA if these symptoms or manifestations resulted from his disability they also constitute the disability.
Ms Clarke’s observation of the applicant in 2007 was that he was unhappy when told he could not have the treatment he wanted, he interrupted inappropriately in conversation, he was demanding, rude, pushy and intimidating. She had the most extensive dealings with the applicant over a period spanning 2004 to the present, and observed him to be intimidatory, rude, interruptive and demanding. For reasons which follow I am satisfied that these characteristics are not symptoms or manifestations of his behavioural disorder.
The applicant did agree that his behaviour could be interpreted as argumentative[15] or difficult.[16] Although he stated that he had been “conditioned to know I’m intimidating just by the fact of my genetic appearance.”[17] He also accepted that he could be perceived as being aggressive, insistent upon expressing his position and agitated. When it was suggested that he was rude, he conceded that his “social skills are very limited,” with the consequence that he may be misunderstood, resulting in the label of “rude.” Although he did not accept that he was “insistent,” he did accept that he was “persistent.”[18]
[15] 17 Sep 2013 T39 line 27.
[16] 17 Sep 2013 T39 line 41.
[17] 17 Sep 2013 T49 line 14.
[18] 17 Sep 2013 T49 line 34-40.
Putting aside his suggestion that he was intimidating because of his “genetic appearance,” Ms Clarke found him intimidating because of his imposing size relative to her. I have little doubt in concluding that Ms Clarke had a reasonable basis to find him intimidating when, as in this case, he was engaged in conflict.
In his affidavit of 24 July 2012, Dr Cuming noted that while the applicant’s behaviour is influenced by a psychiatric condition he had not found his behaviour difficult to manage or experienced any difficulties in providing medical services to him. In his view the applicant had been able to obtain assistance and interact generally with his staff without intimidating the staff or becoming difficult or abusive. Furthermore, there had never been an incident in his practice in which the applicant had behaved aggressively towards or threatened a staff member.
Dr Cuming’s evidence in cross-examination was that his assessment of the applicant’s condition was premised upon an acceptance of the advice of Dr Trott. Importantly, Dr Cuming noted that the psychiatric disorder can be treated by medication, presumably to stabilise the patient and render such a patient sociable. However, a personality disorder cannot be treated by medication.[19] In this case Dr Cuming accepted that he relied upon Dr Trott’s assessment of the applicant as having a borderline personality disorder, although Dr Cuming was unable to state exactly how that borderline disorder manifested itself.[20]
[19] 17 Sep 2013 T12 line 41-43.
[20] 17 Sep 2013 T15 line 23.
Dr Cuming accepted that the applicant’s behaviour could present as intimidating, demanding, agitated and rude.[21] When pressed, he stated that these characteristics “possibly could relate to his personality disorder” as they “could possibly relate to his social anxiety.”[22] However, when cross-examined on these observations he conceded that in interactions between himself and the applicant he had not found his behaviour difficult, but that “patients will often interact very differently with their GP as to how they will interact with non-medical staff in the practice.”[23]
[21] 17 Sep 2013 T21 line 25-40.
[22] 17 Sep 2013 T21 line 41-45.
[23] 17 Sep 2013 T22 line 36-37.
From Dr Cuming’s evidence the applicant does suffer a personality disorder. However it is also apparent that the characteristics which are complained of in this instance by the respondent are, at best, only a possible manifestation of that disorder. Given the observation of Dr Cuming that the applicant appears to have some control over when he manifests these characteristics, i.e. those characteristics of intimidatory, demanding, rude and agitated behaviour, and Dr Cuming’s view that it is only possible that the characteristics are a manifestation of his disorder, I am not satisfied that those characteristics are more likely than not symptoms or a manifestation of the diagnosed personality disorder which forms part of his disability. On balance, I am satisfied that these characteristics illustrate an ornery personality. They are a manifestation of a generally disagreeable person but not a manifestation of any personality disorder the applicant suffers.
So much was consistent with my impression and observations of him at trial. Much of the cross-examination was directed to opinions he held. While there was generally little disagreement about events, there was some significant difference between the applicant’s interpretation of events and the impressions informed by others.
From the applicant’s presentation I formed the view that he had a particularly haughty attitude. For instance, he noted that when discussing the presence of his dog at one of the 2007 attendances, he said he would have stated, “An assistance dog has the right to accompany me everywhere and my dog has my rights.”[24] He stated to the dental assistant when she complained about the dog that “the decision in the QH matter went in my favour.”[25] This was a reference to other litigation pursued by the applicant concerning the presence of his dog at a public hospital.[26] This attitude pervaded much of the cross-examination of the applicant when he was referred to complaints by him to the HRC, other litigation and dealings concerning the organisation A.W.A.R.E. Dogs Australia Inc., of which he is the founder and ongoing director.
[24] 17 Sep 2013 T39 line 26-27.
[25] Affidavit of C. Forest filed 16 May 2012 – Annexure CF7.
[26] It would appear that that litigation gave rise to the GHAD Act and in particular the measure provided in s.7 which had the effect of excluding procedure rooms.
It follows that I have little difficulty accepting that the statement referencing his past litigation was intended to be intimidatory given his well-known activism in the small rural community of Kuranda.
Similarly, he either lacked insight into the feelings or concerns of others or was dismissive of them, having an egocentric and self-righteous viewpoint. For instance, when cross-examined about the difficulty the dental assistant had moving about the confined area of the surgery (a fact he accepted), including her need to straddle the dog as she accessed drawers while performing duties relevant to his dental procedure, his view was that this did not cause any problems.[27]
[27] 17 Sep 2013 T44 line 29-30.
Whilst he unquestionably has a disability and the need for an assistance dog is but one manifestation of his disability, the applicant did not impress me as a particularly pleasant man. He is an aggressive individual and to some extent it is difficult not to conclude that in part his personality and his aggressive, rude, argumentative and intimidatory behaviour constitutes a squaring-up with the world for the circumstances of his birth, a matter he voluntarily described as “pre-civil rights in white America in a black ghetto.”[28]
[28] 17 Sep 2013 T49 line 13.
I am satisfied that those dealing with him not only observed the behaviours stated, but would also have reasonably concluded that the applicant was generally not a pleasant person and that, by reason of his exhibited poor social behaviours, he acted unreasonably and therefore required more care, attention and patience than would ordinarily be considered reasonable. Having experienced his conduct once, I accept that it was reasonable for the respondent’s contractors not to afford him another chance. It is not difficult to understand how those who dealt with him at the clinic concluded that his personality was difficult.[29] It was that concern, based upon earlier experience, which plainly gave rise to the prospect of additional stress in dealing with him that concerned each of Drs Zabeti and Mudd. As I will later explain, this proved to be prescient on their part.
[29] The polarising nature of his personality was reflected in the evidence of both Dr Cuming (17 Sep 2013 T22 line 33 – Dr Cuming had experienced no difficulty, but his staff had – the applicant interacts differently with his GP) and Ms Coop, an occupational therapist, who acknowledged his aggressive appearance but noted with particular concern that characterisations such as ‘demanding’ were judgmental statements. She impressed me as an overly compassionate person.
Accordingly, whilst the applicant clearly suffers from a disability, caution needs to be exercised in considering his behaviour. Some behaviours are a manifestation of his personality disorder, i.e. the need for an assistance dog, and others are just a manifestation of the applicant as a person. They are not a symptom or manifestation of his personality disorder. Caution needs to be exercised in considering which was being reacted to by the respondent.
Was the Applicant Treated Less Favourably?
The applicant’s counsel submits that the question posed by s.5(1) DDA is whether a person without the applicant’s disability would have been treated less favourably by the respondent in respect of the availability of the respondent’s premises, facilities and provision of dental services in circumstances which are not materially different. He submitted that s.5(1) requires a comparison to be undertaken between the treatment actually afforded to the applicant and the treatment that the respondent would propose to give to a person without the applicant’s disability in circumstances which are not materially different. He submitted that if the comparison reveals less favourable treatment of the applicant the further question must be asked whether that less favourable treatment occurred “because of” the applicant’s disability.[30]
[30] Purvis v New South Wales at [213].
He contended that the hypothetical comparison required by s.5(1) DDA requires identification of the circumstances objectively surrounding the treatment or anticipated treatment of the disabled individual. Once those circumstances have been identified a comparison must then be made between the treatment afforded to the disabled person and that which would have been given to an individual without the disability in circumstances that are not materially different.
He contended further that s.5(2) and s.5(3) both bear upon that hypothetical comparison. He submitted that s.5(2) allows for the possibility of discrimination in circumstances where the discriminator fails to make reasonable adjustments for the aggrieved person. Section 5(3) requires that, for the proposes of the comparison required by s.5(1), circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments.
He submitted that in this case the comparison was uncomplicated. He contended that the applicant was referred to the respondent by his GP for the provision of dental services, but that when he sought those services he was refused an appointment for that purpose because of his perceived “expectations” and “needs.” He submitted that given the extended definition of disability within the meaning of s.4(1) DDA, the comparison required by s.5 is between the treatment in fact shown to the applicant, and that which would be expected to be shown to a person without his psychiatric disorders and who does not:
a)show the behavioural symptoms from time to time associated with those disorders; and
b)require the adjustment associated with those disorders; in this case, the continuing presence of a disability animal.
It is not in issue that ordinarily a patient applying for an appointment in the circumstances could have expected to wait approximately four to five weeks before being seen by a dentist at the respondent’s Kuranda clinic. However, in this case the respondent refused to make any appointment for the applicant.
The applicant’s counsel contended that, in the circumstances, the conclusion was inescapable that the applicant was treated less favourably by the respondent with respect to the prospective availability of the respondent’s facilities and premises, and the prospective provision of dental services by the respondent, than a person without his disability in circumstances which were not materially different.
The question this begs is as follows: how in these circumstances would the respondent’s contractors have treated a person without the applicant’s disability? In that case the comparator would be a person without a personality disorder who has previously attended the respondent’s clinic, acted rudely, aggressively, interrupted and by his behaviours caused undue anxiety to the treating dentist when controversial matters were raised.
In my view the answer is clear. They would properly choose not to subject themselves to such behaviours again and would refuse to provide dental services to such a person.[31]
[31] Fetherston v Peninsula Health [2004] FCA 485 at [88] and [89].
Was the Treatment because of the Disability?
The applicant’s counsel contended a number of principles that bear upon the assessment of a connection between the less favourable treatment of an individual and his or her relevant disability:
a. He noted that the identification of the requisite connection may be assisted in certain circumstances by s.10 DDA which deems an act to have been done for a prohibited reason in circumstances where the act was done for more than one reason, and one of the reasons (whether or not it is the dominant or substantial reason) is the prohibited reason;
b. The distinctions between concepts of motive, purpose and effect made in some of the case law in the area are not likely to be of great assistance to the question of whether unfavourable treatment occurred “because of” some disability. He noted in that regard that the plurality in Purvis had observed:
“… the central question will always be – why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it “because of,” “by reason of,” that person's disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression “because of.””[32]
c. If an act is done for two or more reasons, and one of those reasons is the disability, the act should be taken to have been undertaken for a prohibited reason if it can be shown (either directly or by inference) that the prohibited reason made some non-trivial contribution to the impugned conduct.[33]
d. The extended definition of disability implemented by the 2009 amendments, that is, that disability also includes behaviour that is a symptom or manifestation of the disability, is relevant to causation also because causation is shown if the less favourable treatment occurred “because of” the applicant’s disability. Meaning causation is established if the less favourable treatment occurred “because of” behaviour that was a symptom or manifestation of the disability.
[32] At [236].
[33] Ricochet Pty Ltd v Equity Trustees, Executor & Agency Co Ltd (1993) 41 FCR 229 at 235.
The applicant’s counsel contended that in applying those principles to this case, “the stark and uncontroversial reality is that the Applicant was refused an appointment with the Respondent for the expressed reason that the Respondent could not accommodate his perceived ‘needs.’”[34]
[34] Applicant’s submissions at [58].
He contended that the respondent’s contention that its refusal to provide treatment to the applicant was attributable to the applicant’s behavioural propensities, in effect, was contrived. In particular, he contended that there was no evidence that at the material time the applicant had conducted himself in a manner that revealed those characteristics and indeed that the 2007 events leading to complaint were resolved on an express and mutual expectation that the applicant might in the future look to the respondent for dental treatment. Accordingly, he contended that the respondent should be taken at its word and bound by the words of Ms Wust who, in phoning the applicant to inform him that he would not be granted an appointment, stated:
“I am sorry but we cannot meet your expectations or accommodate your needs, so I am unable to make an appointment for you.”
The applicant contended that those needs conceded a manifestation of his disability. It followed, in his contention, that a substantial reason for the respondent’s unfavourable treatment of the applicant was therefore the applicant’s disability. Such an approach is however too simplistic. As discussed below, the circumstances surrounding the original employment of those words in this case require examination. Importantly, here the purported discriminator is a corporation and accordingly it is the reason or reasons for the action of the responsible officers of the corporation that is or are in question. It is their conduct that is to be measured against the requirements of the Act.[35]
[35] Purvis v New South Wales at [13] per Gleeson CJ.
Counsel for the respondent submitted that its refusal was premised upon a number of matters. They included:
a. The constantly interrupting, demanding, rude, pushy, intimidating and confrontational behaviour of the applicant when he attended the dental surgery on the occasion of his previous attendances;
b. The refusal of dental staff contracted to the respondent to, in turn, provide dental services to the applicant;
c. The applicant’s ineligibility to receive the service under the CDSS.
The Applicant’s behaviour
I have earlier examined the nature of the applicant’s disability and considered the behaviour manifested by the applicant which the respondent contended gave rise to its refusal. For reasons addressed earlier, I am not satisfied those behaviours constituted a symptom or manifestation of the applicant’s disability. Accordingly, those behaviours do not constitute a disability within the extended definition provided in s.4 DDA. The respondent’s refusal to grant an appointment was because it could not secure a dentist to provide him with the service. None of the respondent’s dental contractors would provide him service because they had either:
a)previously suffered from his rudeness, aggressiveness and general poor behaviours and did not wish to be subject to it again;
b)heard about the applicant’s behaviour and did not wish to be subject to it;
c)did not think that the treatment would be worth the fees they would receive; or
d)if his behaviours were a product of his disability, they did not consider themselves to have the necessary qualifications to treat such a person.
For findings earlier expressed I do not think that this latter reason was a relevant consideration at the time of the decision. It follows that I am satisfied that the respondent’s less favourable treatment of the applicant was for reasons which were lawful.
Refusal by the Respondent’s contractors to service the Applicant
In advising the applicant that the respondent would not provide him with dental services, Ms Wust stated to him:
“I am sorry but we cannot meet your expectations or accommodate your needs, so I am unable to make an appointment for you.”
The central issue concerns what Ms Wust meant by these words. The origin of those words was explained by Ms Wust. She stated that the words were advised to her by the ADA. It was apparent from her evidence that she had little if any direct knowledge of these matters. She had only been the practice manager since about 2007, having joined the practice after the events which gave rise to the Conciliation Agreement had been concluded. She had no personal knowledge of the events of 2007 or the applicant, although she was aware of some of his behaviours from the limited information provided to her by others.
It follows that the words used by her did not of themselves truly convey a meaningful expression of the consideration behind the respondent’s decision not to grant the applicant an appointment. She was simply the mouthpiece through which the respondent spoke. However, it was evident from Ms Wust’s evidence that the most relevant consideration of the respondent was that none of its dental staff would treat the applicant. It is on them that the inquiry must focus in order to ascertain what was meant by the words she was instructed to use in conveying advice of refusal.
The only evidence Ms Wust gave for any reason the applicant could not be provided an appointment was because the dentists in Kuranda did not want to see him,[36] and that the Cairns dentist did not wish to go because he was based in Cairns and it was not financially worthwhile for him to travel to Kuranda to service one patient.[37]
[36] 17 Sep 2013 T77 line 40-42.
[37] 17 Sep 2013 T79 line 5-7.
Dr Zabeti commenced with the respondent in about September 2008 and provides services from the respondent’s Kuranda clinic. She recalls being asked by Ms Clarke whether she would see the applicant. She says that following that request she reviewed the clinical notes concerning the applicant and, after having examined and considered them, declined to see him. She gave the reason for her refusal as her concern to avoid a potentially stressful situation. She stated that after reviewing the clinical notes she noted that there had been difficulties with the applicant in the past. She was concerned that if he became uncooperative the stress might have exacerbated her pre-existing heart condition. This evidence was not challenged.
The notes informing Dr Zabeti’s decision were the clinical records of the applicant’s previous attendances at the respondent’s Kuranda surgery.[38] It is evident from the notes that the applicant was recorded as having a “very difficult attitude” and being “very argumentative” during the consultation on 15 June 2007. The record does not reveal whether those observations of the applicant’s conduct were based upon his general demeanour or in response to the request referred to earlier in the record that his dog be left outside “during Rx as clinical environment.”[39] A subsequent entry for 17 July 2007 evidenced further conflict between the applicant and the treating dentist. In that instance it was plain from the notes that there was some relationship between the presence of the applicant’s dog and the applicant’s argumentative behaviour.
[38] Exhibit 1.
[39] “Rx” is a common medical abbreviation for the administration of pharmaceuticals.
By 2010 the applicant would not have had any justification for being uncooperative concerning the presence of his dog. In 2009 the Queensland Parliament enacted the GHAD Act. An object of the GHAD Act is to assist people with disabilities who rely on, inter alia, assistance dogs, to have independent access to the community by, inter alia, protecting their right to be accompanied by the person’s assistance dog in particular places: s.3(1)(a) and s.3(2)(a). However, the GHAD Act does not apply to health facilities including a “procedure room” or “part of a health service facility where the presence of a dog is likely to significantly impair the safe or effective provision of a health service at the facility”: s.7(1)(a) and Schedule 1.
There was no disagreement between the medical witnesses that the respondent’s surgery was a facility where procedures were undertaken or one where the standard of hygiene to be maintained was to be high for the purpose of preventing infection or the spread of disease.
Dr Zabeti is presumed to have been aware of the GHAD Act, as was the applicant. I am satisfied that she had a reasonable basis for her concern that the applicant would be likely to exhibit unreasonable and uncooperative behaviours and that she was at risk because of those matters which were highly personal to her. Given the GHAD Act, her concern about potential uncooperative behaviour could not be premised upon the respondent’s disability; but rather concern by her about the applicant’s anticipated response to her exercising a clinical judgement provided for by the legislative regime. At the time she could only speculate that the applicant would be unco-operative in matters concerning his dog because of the information gleaned from the 2007 clinical notes. However, it was evident from the cross-examination of the applicant on this point that Dr Zabeti’s concerns proved prescient.[40]
[40] 17 Sep 2013 T53 line 1- T54 line 10.
The other dentist on staff at Kuranda at the time was Dr Mudd. She too informed Ms Clarke that she would not treat the applicant. Ms Clarke stated that Dr Mudd refused to see the applicant, claiming that at the time she was pregnant. She informed Ms Clarke that she did not wish to see the applicant because her 2007 experience with him had been stressful for her, and given her then pregnancy and past difficulties in falling pregnant she did wish to expose herself to any stress that might adversely impact her pregnancy. Furthermore, she complained that she was concerned that the applicant would walk out on her again in the course of a procedure. Although not strictly admissible, no objection was taken to this evidence.
In any event, the respondent properly sought to adduce evidence of like kind from Dr Zabeti, whose evidence was in admissible form. However, given the opportunity the applicant chose not to require her for cross-examination. This was no doubt a sound decision given that the evidence of Drs Zabeti and Mudd would have been difficult to contradict. I have considered these factors in weighing the evidence on this point. Given that Dr Mudd’s conduct gave rise to the applicant’s complaint to the HRC in 2007 and her employment continued until 2010, I am satisfied that she would have been aware of and intimately involved in the respondent’s response to that complaint. In the circumstances she could not have failed to recognise that to fail to treat the applicant because of the presence of his dog would have been prima facie unlawful. However, she too is deemed to have been aware of the GHAD Act. Accordingly, I am satisfied that when she came to consider Ms Clarke’s request made in March 2010 for an appointment for the applicant her decision to refuse treatment was not “because of” the applicant’s disability but rather her reluctance to treat a disagreeable and ornery patient, as well as a concern that the applicant’s response to being challenged about the presence of the dog would give rise to the behaviours experienced in 2007. As with Dr Zabeti, her concerns on this latter issue proved to be prescient.
In cross-examination the applicant’s counsel asked of Ms Wust whether she considered the possibility of getting another practitioner up to Kuranda. Ms Clarke answered:
“I asked [Dr Brendan Makhecha], but he is based in Cairns, and he said it wasn’t beneficial to him to travel to Kuranda for one patient. He would lose too much money. His patient base is in Cairns, and that’s where he worked; was in Cairns.”[41]
[41] 17 Sep 2013 T79 line 4-7.
It would appear from this passage of evidence elicited by the applicant that the one factor motivating Dr Makhecha was the question of money.[42] Although it was also contended that he did not have the capacity to treat the applicant, I do not think that this matter was considered at the time. I consider that with hindsight the respondent also concluded it did not have available a dental practitioner who could treat the special needs of the applicant.[43]
[42] While earlier observations concerning the evidence of Dr Mudd’s testimony apply with equal force to this passage of evidence, I note that the applicant’s counsel invited this response without objection.
[43] I note that Dr King expressly disagreed with this matter when it was put to him in cross-examination (18 Sep 2013 T12 line 4-6). While I accept Dr King as a reliable and truthful witness in all other respects, I think that his evidence on this point is mistaken.
It follows that when Ms Wust was instructed to advise the applicant that the respondent could not service him because of his perceived “special needs,” what she was really seeking to communicate in a polite and non-offensive manner was that the applicant was not welcome because he had a difficult personality and the respondent chose not to provide services to difficult personalities. Persons with ornery personalities do require special needs and some people are happy to service them. However, such a characteristic is not a disability and no one should be required to go out of their way to service such individuals if they choose not to. In short, the applicant needs to treat people respectfully if he wishes them to service his needs.
I am satisfied that the reference to “special needs” was not a reference to the Conciliation Agreement as was suggested by the applicant’s counsel, but that the origin of that term was, as stated by the respondent’s witnesses, the ADA. The term having been adopted, it infected the subsequent language employed by the respondent for the reasons I have stated.
In this case I am satisfied that the contractors would not provide services to the applicant because he is not a reasonable and pleasant person to deal with. It had nothing to do with his disability.
For completeness on this issue I note that the applicant submits that the respondent has not properly answered his claim that it could have provided the services to him in Cairns. However, that was not the basis upon which the applicant prosecuted his case. Since the initial complaint to the HRC his case has been that he was denied dental services in Kuranda, forcing him to seek treatment in Cairns. That was plainly how the respondent saw the applicant’s claim. For instance, it sought to procure another dentist to travel to Kuranda. It was the Kuranda decision that enlivened the complaint and the applicant is limited to that complaint.
Refusal on the grounds of EPC/DCCS eligibility
The respondent also says that no act of discrimination occurred because in this instance the respondent’s refusal of dental services to the applicant was unequivocally based upon the applicant’s ineligibility for the treatment the subject of the referral. The respondent contends that the applicant was referred to it from Dr Cuming on 10 March 2010 by the Referral Form, which noted in part:
“Dear Dentist
PROBLEM: EPC DENTAL CARE
Thank you very much for seeing Che for EPC DENTAL CARE.”
The “Current History” section in the letter noted:
“GP Management Plan 29 March 2009 725
MENTAL HEALTH CARE PLAN – PREPARATION – ITEM 2710 2008
DENTAL PAIN 2005
PERSONALITY DISORDER 2001
DEPRESSION 1998
HEPATITIS C 1996”
Ms Clarke stated in her evidence that in November 2007 the CDSS was introduced. This was different to the EPC dental care referred to in the referral. She stated that under the CDDS eligible patients were able to receive up to $4,250.00 in Medicare benefits for dental services over two consecutive calendar years. However, to be eligible:
a)The patient must have a chronic medical condition and complex care needs;
b)The patient’s oral health must be impacting on, or be likely to impact on, their general health; and
c)The patient needed a GP management plan and Team Care arrangements.
She noted in that event dentists were able to bulk bill the patient or charge the Medicare rebate level. However, dentists could not claim for dental services until the required “GP care planning items” had been claimed for by the doctors. She stated that a patient would be considered to have complex care needs if they required ongoing care from a multi-disciplinary team consisting of their GP and at least two other health or care providers. To fall within the scheme treatment had to be “clinically relevant,” that is, a service which was generally accepted by the professional as being necessary for the appropriate treatment of the patient. These matters were also accepted by John Juides and Dr King, and, as was submitted by the respondent, tacitly agreed by Dr Cuming in cross-examination.
The respondent contends that Dr Cuming has adduced no evidence of the applicant’s oral health impacting or likely to impact upon his general health. I also accept that no evidence of this can be gleaned from the applicant’s evident medical history or the “GP Management Plan 29 March 2009.” Furthermore, as was contended for by the respondent, the applicant made no mention of any dental difficulties affecting his general health at any time prior to trial. Clinical records from attendances at the respondent’s practice in June/July 2007 make no relevant observation beyond noting the treatment rendered on those occasions.
At trial the applicant alleged a history or periodontal gum disease.[44] However, that was the first recorded instance of any such complaint by the applicant. Indeed, as the respondents submit, the applicant asserted in his first affidavit that he told Ms Wust in the course of his telephone conversation that he did not have any special needs and that he was merely seeking a routine dental check-up. On the basis of those facts, which I have no reason to doubt, it would appear that he was ineligible for the EPC dental care that had been the subject of the referral. It is a matter of common knowledge that, as standard dental services are not subject to Medicare funding, referrals are not required from GPs for routine dental check-ups.
[44] 17 Sep 13 T50 Line 37-40.
For the applicant it was contended, in effect, that the respondent’s submission on this point was little more than lawyer’s sophistry. It contends that while the respondent now seeks to suggest that its refusal was on the basis of the applicant’s ineligibility for the CDDS, that explanation was not proffered to the applicant. While that may be the fact, it is also in my view apparent from that evidence that the matter of the applicant’s eligibility for treatment under the CDDS was on the mind of one of the respondent’s principals, Mr Juides. He stated that the referral letter had been forwarded to his attention. To him it was not clear what treatment the applicant required except that from the form he apprehended that the applicant wished to be treated for an unstated condition under the CDDS. He noted that the respondent had never been contacted by Dr Cuming to enquire about whether one of the respondent’s contractors would be prepared to treat him under the scheme and further that at the time of providing the referral no copy of the “GP Management Plan 29 March 2009” was attached. He noted that the referral form for dental services under Medicare particularly provides: “GP’s are encouraged to attach a copy of the relevant part of the patient’s care plan/s to this from. Clinical notes / current medications (Optional).”
At that point it appears the respondent by its officers became distracted by issues relevant to how the services could be provided rather than whether there was an obligation to provide the services, because the applicant was prima facie ineligible.
Although I am satisfied that the matter was initially considered by the respondent, on balance I conclude that the respondent did not determine to not provide the CDDS services because of the applicant’s ineligibility for that benefit. Undoubtedly in the course of its preparation of the Response it became aware of the detail supportive of its position. If the respondent by its officers had articulated this basis for refusal of the provision of service at the time, I think there would be little basis for the applicant’s complaint.
Discrimination in the provision of services s.24 DDA – Ground Two
The applicant’s first complaint concerns a breach of s.24 in that he alleges the respondent discriminated against him in respect of the provision of the service on the basis of his disability. Section 24 DDA relevantly provides:
“Goods, services and facilities
It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s disability:
(a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or
(b) in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or
(c) in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.
…”
There was no dispute between the parties that the respondent provides services that are both beneficial and useful, or makes facilities available.[45]
[45] IW v City of Perth (1997) 191 CLR 1; Rainsford v Victoria (2007) 167 FCR 1.
Ultimately, the respondent contended that because of the contractual arrangements between the respondent and its contracted dentists any decision to offer an appointment was dependent upon a dental practitioner being available and willing to accept the appointment. The applicant maintains that, by reason of the contractual arrangements in place, it ought to have been possible to secure a dentist irrespective of the views held by the individual dental practitioners concerned. That is to say that the service arrangements ought be specifically enforced. In particular, the applicant’s counsel referred to clause 3 of the contractor’s agreement between each of the relevant contracted dentists and the respondent. Relevantly it provides:
“SERVICES TO BE PROVIDED BY CONTRACTOR
3.1 The Company engages the Contractor to provide it with specialist skills and expertise in general dental surgery and to attend to the practice, patients and cases assigned to the Contractor in the Company’s dental clinics and to give all proper attention and treatment to those patients assigned to the care of the Contractor.
3.2 The Contractor will attend to all patients with reasonable skill, care and diligence and in the treatment given and prescribed to the patients at all times and will conform to the laws, customs, practices and ethical standards of the dental profession at all times so as to ensure that the Contractor remains qualified to practice dentistry in the State of Queensland at all times for the term of this Agreement.
…
3.3 The Services will be provided by the Contractor at the location or locations specified by the Company which may be varied from time to time.”
The applicant is correct in its submission that on its face the respondent had a prima facie right to require its dental contractors to attend to the “patients and cases assigned to the Contractor.” However, as Mr Juides deposed, that provision was one never enforced, and by inference strict compliance with it was commonly waived. Furthermore, the respondent would unlikely be able to enforce such a term if the contracting dentist simply refused,[46] particularly if an independent contractor had a reasonable basis for refusal. That is especially so because the respondent is not the licenced dental practitioner. Ultimately, those judgments fall to the treating practitioner, who has the “sole right [of refusal].”[47] The commercial reality is that there were financial incentives for dentists to see patients as they were independent contractors to the respondent and required referral work to generate income. In this case each of the respondent’s dental practitioners provided reasonable explanations for not wishing to provide dental services to the applicant. The respondent accepted those explanations. Even so, had it not accepted the explanations, given the market for dentists in Cairns there is in reality nothing the respondent could have done about such refusals.[48]
[46] 18 Sep 2013 T21 line 35.
[47] See generally discussion on enforcement of contracts for personal service: I.C.F. Spry, The Principles of Equitable Remedies (Lawbook Co., 8th ed, 2010) 598.
[48] 18 Sep 2013 T28 line 12-28.
In respect of two of the dental practitioners who ought ordinarily be available to treat the applicant, their refusal to treat the applicant was premised upon a view that the applicant would be a difficult patient because of his difficult personality and that the stress associated with treating such a difficult patient in each of their individual circumstances was so great as to warrant their refusal. The basis for the views formed by Drs Zabeti and Mudd was the applicant’s difficult personality, manifest by his reported “very difficult” and “very argumentative” attitude reported by Dr Zabeti and the very stressful previous experience of Dr Mudd occasioned by the applicant leaving mid-treatment. Such behaviour could clearly be characterised as demanding, agitated and/or rude; it was conceded by the applicant, Dr Cuming and Ms Christine Coop[49] that he exhibited such behaviours. Dr Makhecha simply refused to provide the service because it was not economically worthwhile to treat him. In the face of such refusals, the respondent was in no position to enforce the individual contractor arrangements and simply waived compliance with clause 3 in each instance. In my view, this was the only reasonable course open to it
[49] An occupational therapist who has been providing assistance to the applicant.
It follows that I am satisfied that the respondent refused to make an appointment for the applicant at its Kuranda clinic because it could not provide a dental practitioner who was prepared to treat the applicant and not for any other reason.
Breach of the Conciliation Agreement – Ground 3
Following the first unhappy dealings between the applicant and the respondent which resulted in the complaint made to the HRC in 2007, the differences between them were mediated and a compromise achieved. The terms of compromise were concluded in the Conciliation Agreement.
Relevantly, the Conciliation Agreement provided:
“2. Without any admission of liability the respondent agrees to:
(i) Allow the complainant to bring one assistance dog to any future appointment with the respondent at its dental practice in Kuranda, Queensland.
(ii) Allow the assistance dog referred to in clause 2(i) to be located in the surgery, in accordance with location marked ‘X’ on Attachment A to this agreement, or if that is not possible, within the area in accordance with the area marked ‘Area B’ on Attachment A to this agreement.
…
3. Without any admission of liability the complainant agrees to bring only one assistance dog to any future appointment with the respondent.
…”
The diagram referred to in clause 2(ii) was not in evidence. However, it is apparent from the applicant’s evidence that his expectation from the Conciliation Agreement was that the dog would be positioned somewhere within the procedure room.[50]
[50] 17 Sep 2013 T52 line 40-46.
The Conciliation Agreement was concluded before the enactment of the GHAD Act.
In 2009, the GHAD Act was enacted. Section 3 relevantly provides:
“Objects of Act
(1) The objects of this Act are—
(a) to assist people with a disability who rely on … assistance dogs to have independent access to the community; and
…
(2) The objects are mainly achieved by—
(a) protecting the right of people with a disability who rely on … assistance dogs to be accompanied by the person’s … assistance dog in particular public places …; and
…”
Specifically, Part 2 of the Act deals with assistance dogs in public places. Sections 7 and 8 relevantly provide:
“Public places and public passenger vehicles to which this part applies
(1) This part applies to any public place … other than the following—
(a) a part of a health service facility mentioned in schedule 1;
…
People with a disability may be accompanied by their guide, hearing and assistance dogs
(1) Despite any other Act, a person with a disability who relies on a … assistance dog to reduce the person’s need for support may be accompanied by the … assistance dog in a public place …”
Section 8 GHAD Act provides a general right which is subject to s.7. A health service facility includes:
a)a procedure room; or
b)an area in which the standard of hygiene is maintained at a significantly high level for the purpose of preventing infection or the spread of disease; or
c)a part of health service facility where the presence of a dog is likely to significantly impair the safe or effective provision of a health service at the facility.[51]
[51] Schedule 1 GHAD Act.
The scheme of the Act invests in the disabled person a right to be accompanied by an assistance dog in a public place. However, the right is not extended to a public place which is “a part of a health service facility.” Ultimately what constitutes a health service facility is a question of fact involving an element of clinical judgment. For instance, it would not appear that a waiting room in a medical or dental surgery constitutes a health service facility by definition. However, a treating room where procedures are carried out or in which the presence of the dog might significantly impair the safe or effective provision of a health service is clearly a health service facility for that act.
At the time the Conciliation Agreement was struck the situation was unsettled. The GHAD Act has resolved any ambiguity by expressly excluding health service facilities from the definition of public places which otherwise would entitle the applicant to be accompanied by his assistance dog.
However, it is apparent from the scheme of the legislation that the GHAD Act invests in the prospective discriminator the right to exclude an animal from a health service facility. It does not proscribe the bringing of animals into a health service facility. This matter was not contemplated by either party at the time that the Conciliation Agreement was struck. The issue that arises concerns how the agreement should address this change of circumstance.
This is not a case where it can be contended that the Conciliation Agreement is frustrated by supervening illegality bringing a contract to an end.[52] However, it does appear that the situation is addressed by reference to an implied term. In this case it was well understood by all parties that the respondent merely provided a dentist to the applicant for the provision of dental services and that the respondent itself as incorporated body did not of itself execute the service. It is implied in the Conciliation Agreement that the respondent would permit the applicant access to the surgery on the terms provided for, that is, in company with an assistance dog, upon it using its best endeavours to provide a dental clinician to render service to him. That term plainly satisfies the criteria set out by the High Court in BP Refinery (Westernport) Pty Ltd v Shire of Hastings:[53]
a)the term is one which is reasonable and equitable;
b)it is necessary to give business efficacy to the Conciliation Agreement;
c)it is so obvious that “it goes without saying”;
d)it is capable of clear expression; and
e)it does not contradict any express term of the Conciliation Agreement.
[52] Re Continental C & G Rubber Co Pty Ltd (1919) 27 CLR 194 at 201.
[53] (1977) 180 CLR 266 at 283.
For reasons expressed elsewhere, I am satisfied that the respondent made its best endeavours to secure a dental clinician to attend to the applicant. However, none of those who provide contractual services to the respondent were prepared to service the applicant because of his disagreeable personality. I am satisfied that in the circumstances the respondent has not breached the Conciliation Agreement.
Victimisation – Ground 4
The applicant also contends that the respondent committed an offence against s.42 DDA. Relevantly, s.42 provides:
“Victimisation
(1) It is an offence for a person to commit an act of victimisation against another person.
Penalty: Imprisonment for 6 months.
(2) For the purposes of subsection (1), a person is taken to commit an act of victimisation against another person if the first-mentioned person subjects, or threatens to subject, the other person to any detriment on the ground that the other person:
(a) has made, or proposes to make, a complaint under this Act or the Australian Human Rights Commission Act 1986; or
(b) has brought, or proposes to bring, proceedings under this Act or the Australian Human Rights Commission Act 1986 against any person; or
…
(f) has reasonably asserted, or proposes to assert, any rights of the person or the rights of any other person under this Act or the Australian Human Rights Commission Act 1986; or
…”
The applicant contends that given the history between him and the respondent an inference is also open on the evidence that another material reason for the respondent’s refusal to treat him was his prior complaint against the respondent and the rights asserted therein.
The respondent denies the applicant’s claim, contending that its inability to treat the applicant did not amount to victimisation triggered by previous proceedings brought by him. It also argued that it was unable to fulfil the agreed conditions of treatment pursuant to the terms of the Conciliation Agreement, contending that the GHAD Act exempted procedure rooms, which included the respondent’s surgery, from the requirement which otherwise required assistance dogs access to all public areas. The Conciliation Agreement, therefore, could not be enforced in light of the new legislative regime.
It is now settled that given that the victimisation complaint was part of the complaint terminated under s.46H of the Australian Human Rights Commission Act 1986 (Cth) (“AHRC Act”) the Court has power to deal with the allegations.[54] A complaint alleging victimisation may be dealt with under the provisions of Part IIB of the AHRC Act because s.3 defines “unlawful discrimination” to include any conduct that is an offence under “Division 4 of Part 2 of the Disability Discrimination Act 1992.” Such proceedings are civil proceedings and are to be distinguished from proceedings for an offence brought directly under s.42 DDA.[55]
[54] Section 46P and s.46PO are in Part 2B AHRC Act (which provides for “redress for unlawful discrimination”).
[55] Penhall-Jones v State of New South Wales [2007] FCA 925 at [10].
As the application is one in a civil proceeding, the civil standard applies.
In this case the applicant seeks to rely upon inference. There is no direct evidence that the respondent engaged in victimisation, that is, that it threatened the applicant to his detriment on the basis or ground that the applicant reasonably asserted or proposed to assert any of his rights under the AHRC Act. I have earlier made findings addressing the respondent’s refusal to provide the applicant with the services he sought. I am satisfied that the only factors which informed the respondent’s decision to refuse the applicant an appointment are those factors which I have addressed earlier. Those factors did not include any consideration of the prospect that the applicant might take further action in accordance with his rights under the AHRC Act. I do not think that facts as established are sufficient to find circumstantial proof of the applicant’s claim. Putting aside the respondent’s evidence, I do not think that the mere fact of refusal in 2010 alone could lead to a rational conclusion it was based on victimisation because he had brought earlier HRC proceedings. This is especially so because the GHAD Act materially changed the legislative landscape concerning dogs in places such as procedure rooms. There is no evidence to support the complaint and it fails.
Unjustifiable Hardship – s.11, s.29A DDA
In the event I am wrong in my findings, the respondent contends that its refusal to permit the applicant an appointment was lawful because the requirement to offer the applicant an appointment would constitute unjustifiable hardship in terms of s.11 and s.29A DDA.
At the outset I am satisfied that had the respondent arranged an appointment for the applicant, and the applicant attended the respondent’s surgery at the appointed time, the applicant would have insisted that his dog be present in the procedure room. The applicant’s insistence on that matter would have been so notwithstanding his actual knowledge of the GHAD Act.[56] Furthermore, as earlier detailed, the scheme of the GHAD Act operates to vest in the relevant clinician the power to exclude, inter alia, assistance dogs to surgical/procedure rooms as a matter of clinical judgment.
[56] 17 Sep 2013 T53 line 1-5.
Section 11 DDA relevantly provides:
“Unjustifiable hardship
(1) For the purposes of this Act, in determining whether a hardship that would be imposed on a person (the first person) would be an unjustifiable hardship, all relevant circumstances of the particular case must be taken into account, including the following:
(a) the nature of the benefit or detriment likely to accrue to, or to be suffered by, any person concerned;
(b) the effect of the disability of any person concerned;
(c) the financial circumstances, and the estimated amount of expenditure required to be made, by the first person;
(d) the availability of financial and other assistance to the first person;
(e) any relevant action plans given to the Commission under section 64.
Example: One of the circumstances covered by paragraph (1)(a) is the nature of the benefit or detriment likely to accrue to, or to be suffered by, the community.
(2) For the purposes of this Act, the burden of proving that something would impose unjustifiable hardship lies on the person claiming unjustifiable hardship.”
Section 29A relevantly provides:
“Unjustifiable hardship
This Division (other than section 30) does not render it unlawful for a person (the discriminator) to discriminate against another person on the ground of a disability of the other person if avoiding the discrimination would impose an unjustifiable hardship on the discriminator.”
The respondent properly concedes that it bears the onus of establishing unjustifiable hardship by way of defence.[57] It contends that in this instance the Court need only be concerned about the sterile area comprising the small dental treatment room. I accept that matter as it is beyond contention. It is not in dispute that the respondent only occupies one room at the Kuranda clinic, that it sought to exercise dominion only in respect of the space contained within that room only and not in respect of any other part of the clinic, and that it sought only to exclude the dog from that area.
[57] Cooper v Human Rights and Equal Opportunity Commission and Another (1999) 93 FCR 481 at 492 applying Vines v Djordjevitch (1955) 91 CLR 512 at 519; Sluggett v Human Rights and Equal Opportunity Commission (2002) 123 FCR 561 at 568.
As was submitted by the respondent, “unjustifiable hardship” contemplates that some hardship is justifiable and that s.11 is drafted broadly to permit the Court to take into account “all relevant circumstances of the case.”[58]
[58] Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2004] FMCA 915 at [86]; Hills Grammar School v Human Rights and Equal Opportunity Commission (2000) 100 FCR 306 at [48].
The respondent’s submissions focused principally upon the consideration provided for in s.11(1)(a). I note that the considerations in s.11 are joined by the conjunctive “and,” suggesting that all matters must be considered. However, the expression in the introductory part of the section provides “… in determining whether a hardship that would be imposed on a person (the first person) would be an unjustifiable hardship, all relevant circumstances of the particular case must be taken into account …” It then proceeds to note that it would include the matters in paragraphs (a) to (d). The drafting suggests that the requirements are not intended to be read conjunctively and that they may be read disjunctively as “and/or” if they do not satisfy the “relevant circumstances of the particular case.”
I consider that construction appropriate in the circumstances.[59]
[59] See discussion in Statutory Interpretation in Australia, D C Pearce and R Geddes, 6th Ed., Butterworths 2006 at page 47 -51
Concerning s.11(1)(a), the applicant submitted that the subsection should be interpreted broadly to include the benefit or detriment likely to be suffered by:
a)the applicant;
b)other persons with disabilities who rely on assistance animals who may be affected by the respondent’s conduct;
c)other patients and potential patients and staff; and
d)potential staff with the health service provider as well as the animals.
Such an approach appears to be consistent with authority.[60]
[60] See Cooper v Holiday Coast Cinemas (unreported) HR&EOC, 29 August 1997 at 7; Francey v Hilton Hotels of Australia Pty Ltd (1997) EOC 92-903 at 754; Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council (supra) at [87]; Purvis v New South Wales (supra) at [94].
It follows that the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned plainly concerns the maintenance of clinical hygiene. The converse of that consideration is the detriment which may accrue to those persons if clinical hygiene is not maintained. The respondent’s surgery is a procedure room where there is arguably a higher risk of infection to any person exposed to bacteria that may be introduced by domestic animals, such as a dog.
A further consideration in respect of this matter concerns the GHAD Act. As I have earlier noted, that Act excludes from its operation health service facilities which include procedure rooms. The GHAD Act is intended to be complimentary to the DDA. However, as was observed in the course of parliamentary debate preceding its enactment, “dogs will continue to be excluded from certain areas in hospitals and ambulances, and where food is being prepared to ensure health and hygiene standards are maintained.”[61]
[61] Second Reading Speech – Guide Hearing and Assistance Dogs Bill 2008 (Qld) 7 October 2008, Queensland Parliamentary Hansard 2840. See also Explanatory Notes – Guide, Hearing and Assistance Dogs Bill 2008 (Qld), where at page 4 it notes: “The Bill excludes specific places where … assistance dogs have no right of access to ensure health and hygiene standards are maintained …”
If the respondent did in fact engage in discriminatory behaviour (which I find did not occur), then what the applicant wanted was a privilege not usually available to others. That is to say that the respondent would have been required to afford the applicant a privilege which the GHAD Act has withdrawn from those who wish to attend procedure rooms with, inter alia, assistance dogs. Given that one object of the GHAD Act is directed to matters of general public safety, provided that there is a sound clinical basis for the decision to exclude an animal, I am satisfied that permitting the applicant that privilege would be to the disadvantage of the broader public, including the respondent’s other potential patients, staff and dental practitioners. In the circumstances to require it to permit the applicant to have his dog present in the procedure room would constitute an unreasonable hardship.
Finally, it was submitted that the respondent simply did not have access to a dentist with the requisite skills willing to service the applicant. Dr King particularly noted that the ADA recognises twelve dental specialities, one of which includes a “special needs dentist.” It describes a special needs dentist as one who “deals with patients where intellectual disability, medical, physical or psychiatric conditions require special methods or techniques to prevent or treat oral health problems, or where such conditions necessitate special dental treatment plans.”[62] On the basis of information provided to him by his contractors he did not believe any of them to be special needs dentists.
[62] Unknown, What are the recognised dental specialities? (2013) Australian Dental Association Inc. < type="1">
As I have earlier determined, I respectfully consider this point to be an ex post facto matter raised by the respondent. Its decision was not informed by a consideration of this fact. Nevertheless, the case remains that the decision to provide dental services requires a professional assessment of both the skill of the clinician and the characteristics and ailments of the patient. In my view, provided any decision to not treat is clinically justifiable, it would constitute unjustifiable hardship within the meaning provided for by s.11 DDA to require a dental practitioner to provide a service which he/she considers beyond the practitioner’s competence if the decision was made because of the a patient’s disability.
Orders
1.Application dismissed.
2.In default of application by either party within 7 days of these orders direct the applicant pay the respondent’s costs of and incidental to the application to be assessed.
I certify that the preceding one hundred and twenty-seven (127) paragraphs are a true copy of the reasons for judgment of Judge Burnett
Date: 12 February 2014
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