Francis v Christies Beach Medical Centre

[2013] SAEOT 1

Equal Opportunity Tribunal

(District Court Administrative and Disciplinary Division)

FRANCIS v CHRISTIES BEACH MEDICAL CENTRE

[2013] SAEOT 1

Judgment of His Honour Judge Costello (ex tempore)

16 January 2013

DISCRIMINATION LAW

Application by the respondent for an order from the Tribunal dismissing the Complaint.  No reasonable possibility of Complaint, alleging discrimination within the meaning of the Act, being made out.  Complaint dismissed.

Equal Opportunity Act (SA) 1984; Limitation of Actions Act 1936, referred to.
Ellson v PB Taxi Co Ltd & Anor [2008] SAEOT 6; Pazios v Pulteney Grammar School [2008] SAEOT 7; Dey v Victorian Railways Commissioner (1949) 78 CLR 62; A.G v Wenthworth (1988) 14 NSWLR 481, 487, considered.

FRANCIS v CHRISTIES BEACH MEDICAL CENTRE
[2013] SAEOT 1

INTRODUCTION

1. In this matter the respondent has applied for an order dismissing the complaint.

2. The Tribunal has power to dismiss a complaint at any stage of the proceedings.[1]  In considering the test to be applied with respect to an application to dismiss a complaint, I am content to adopt the approach taken by various divisions of this Tribunal namely that the applicant for dismissal must show that the complaint is lacking in merit, in that there is no likelihood of success of the complaint.[2]

   [1] S 96(2)(b) Equal Opportunity Act 1984.

   [2]    Ellson v PB Taxi Co Ltd & Anor [2008] SAEOT 6; Pazios & Anor v Pulteney Grammar School [2008] SAEOT 7.

3. In the context of an application made at a preliminary stage in the proceedings, I must be satisfied that the view that the complaint has no likelihood of success is one which could not be altered by any evidence which could be adduced at trial.[3]

   [3]    Dey v Victorian Railways Commissioner (1949) 78 CLR 62.

   The Applicant’s Case for Dismissal

4. The applicant puts its case on two bases.  First, that many of the “facts” alleged or adverted to by the complainant in her initial Complaint and subsequent Further and Better Particulars, relate to allegations which occurred a number of years ago and in any event, more than 12 months prior to the lodging of the complaint in July 2012.  As such, it is said that the complaint is “out of time”.[4]

   [4] See S 93(2) of the Act.

5. Although the Act provides the Commissioner with power to extend the time for lodging a complaint (s 93(2)(b)), no application was made to the Commissioner to extend the time and no such order has been made by the Commissioner.

6. On reading the Complaint and the Further and Better Particulars, it is apparent that many of the concerns (to use a neutral term) raised by the complainant, relate to issues more than 12 months prior to the lodging of the Complaint.  In response the complainant points to the provisions of s 93(2)(a) of the Act which permit (in circumstances where the alleged contraventions are constituted by a series of acts) a Complaint to be lodged within 12 months of the last of those acts.

7. The series of acts relied upon by the complainant, involves sundry alleged acts (whether of discrimination or not is unclear) by other agencies apart from the respondent and in another State ranging over a number of previous decades.  I am not persuaded that the concept of a series of acts referred to in this Act, extends to separate and distinct acts by other bodies quite unrelated to the respondent.

8. I observe in passing that, on the issue of time generally, no argument was put to me as to the Tribunal’s power to extend the time under the Act or the Limitation of Actions Act 1936. Ultimately it is unnecessary to consider this particular issue because it is clear that in addition to concerns relating to matters which are arguably out of time, the Complaint also raises concerns in relation to periods that are clearly “within time”. If this were the only basis for the application, I would be obliged to dismiss it.

9. However the applicant raises a more general and fundamental ground in support of its application, namely that the Complaint and the Further and Better Particulars in support of it, do not disclose facts which raise issues giving rise to any breach of the Act.

10. In the alternative, it submits that the complaint should be dismissed as frivolous[5]  or vexatious.[6]   Although there is no express power in the Tribunal to dismiss a Complaint on these grounds it would seem to me to be implicit given a power in the Act to award costs on these grounds.[7]

    [5] “Frivolous” as that term is understood in General Steel Industries Inc. v Commissioner for Railway (New South Wales ) 1964 112 CLR 12, namely, “if on the face it cannot possibly succeed, if it is manifestedly groundless or if it is paltry or trifling”.

    [6] “Vexatious” – proceedings will be vexatious if regardless of a litigant’s motive, they are so obviously untenable or manifestly groundless as to be utterly hopeless – A.G v Wentworth (1988) 14 NSWLR 481, 487.

    [7]    See S 26(1)(c) – cf Commissioner’s power in S 95A (i)(a).

11. Turning now to the general ground relating to there being no disclosed breach of the Act.  On this issue the Complaint alludes to possible contraventions of the Act in relation to four kinds of discrimination namely:

    ·Discrimination on the grounds of disability.

    ·Discrimination on the grounds of the identity of her spouse or partner.

    ·Discrimination on the grounds of appearance or dress.

    ·Discrimination on the grounds of race.

12. In relation to the second, third and fourth categories, although the Complaint and the Particulars allude in passing to such matters, there are simply no allegations or “facts” adverted to which are capable of establishing discrimination on these bases as required by the criteria set out in ss 85T and 51 respectively.

13. The discrimination in relation to “disability” would appear to relate to a failure to diagnose or properly treat her disability.  This much is clear from the material before me.  The complainant was seen by various medical practitioners at the medical centre.  The complainant felt that they did not believe her as to the nature of her complaints.  Dr Dowell, as the senior medical officer, attempted to apologise on behalf of those doctors.  His apology appeared to be rejected by the complainant and as a result of the apparent breakdown in the doctor/patient relationship he then proffered a number of alternative medical practises for her to attend for treatment.

14. I am satisfied that, on this ground, the Complaint as particularised in the Further and Better Particulars, when looked at in its most favourable light, does not disclose any material to suggest that she was treated “unfavourably” (as that term is used in s 66 of the Act) on the ground of any disability real or imagined.  On the contrary, it would appear that her treatment was in line with that which could have been expected by any person in the position of the complainant.

15. I am also satisfied that the Complaint, as particularised in the Further and Better Particulars, is both frivolous and vexatious in the senses to which I have adverted above.  I am therefore satisfied that the Complaint should be dismissed.

    Order

16. The formal order is that the Complaint is dismissed.