GXM v Becton Dickinson Pty Limited - [2025] NSWCATAD 62

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: GXM v Becton Dickinson Pty Limited [2025] NSWCATAD 62
Hearing dates: 14 November 2024
Date of orders: 12 March 2025
Decision date: 12 March 2025
Jurisdiction: Administrative and Equal Opportunity Division
Before: J Redfern PSM, Senior Member
Dr M Murray, General Member
Decision:
(1) The application is dismissed.
(2) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act), the disclosure of the applicant’s name, including any further identifying information as provided in connection with these proceedings, is prohibited.

Catchwords:
HUMAN RIGHTS – discrimination – on the ground of disability and sex – direct and indirect discrimination alleged – whether medical device provided to the applicant – meaning of “provide” – whether the respondent refused to provide medical device to the applicant when product discontinued by US parent.

Legislation Cited:
Anti-Discrimination Act 1977 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Disability Discrimination Act 1992 (Cth),

Cases Cited:
State of NSW v Whiteoak [2014] NSWCATAP 99
Travis v New South Wales [2001] FMCA 18
Waters v Public Transport Corporation [1991] HCA 49; (1992) 173 CLR 349
Winters v Fogarty [2017] FCA 51

Texts Cited:
Nil

Category: Principal judgment
Parties: GXM (Applicant)
Becton Dickinson Pty Ltd (Respondent)
Representation:
GXM (self-represented)
R Kumar (Respondent)
Solicitors:
HWL Ebsworth Lawyers

File Number(s): 2024/00152373
Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act), the disclosure of the applicant’s name, including any further identifying information as provided in connection with these proceedings, is prohibited.

REASONS FOR DECISION

Introduction

The applicant, GXM, is a 64-year-old woman with multiple disabilities. She has cerebral palsy, thoracolumbar (spinal fusion) and urinary incontinence requiring long term suprapubic catheterisation. She has been on a disability support pension since 2000 and is a participant in the National Disability Insurance Scheme (NDIS). The applicant has used a “female” 26 cm Foley catheter for many years (the 26 cm Foley catheter) and has been unable to source the catheter since February 2023.
The applicant alleges discrimination on the grounds of sex and/or disability. The respondent denies the claims.
The personal health information of the applicant is included in this decision as this information is relevant to the issues in dispute and the applicant’s claims. The information cannot be redacted without impacting the substance of the reasons. Accordingly, confidentiality orders have been made and a pseudonym has been used for the applicant’s name.
We have decided to dismiss the application. Our reasons follow.

Background

The 26 cm Foley catheter was sourced by the applicant directly from a number of medical supply companies and was manufactured by a US based company, Becton Dickinson and Company, which is the parent company of the respondent. The respondent, Becton Dickinson Pty Ltd, is the Australian subsidiary company of US company, Becton Dickinson and Company. The respondent does not manufacture any products and supplies and distributes products manufactured by its US parent in Australia. In 2017, the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWCATAD 62
Decision Date: 12 March 2025

CaseChat Overview and Summary

The case of GXM v Becton Dickinson Pty Limited was heard in the Civil and Administrative Tribunal (CAT). The applicant, GXM, alleged that they were subjected to discrimination on the grounds of disability and sex by the respondent, Becton Dickinson Pty Limited. The dispute centred around whether the respondent provided a medical device to the applicant and the meaning of the term “provide” in this context. GXM claimed that the respondent refused to provide the device when it was discontinued by the US parent company, constituting direct and indirect discrimination.

The primary legal issue before the tribunal was to determine whether the respondent had discriminated against the applicant on the grounds of disability and sex. This involved interpreting the term “provide” in the context of the medical device and whether the discontinuation of the device by the US parent company constituted a refusal to provide the device. The tribunal also had to consider whether the applicant’s claims of discrimination were substantiated.

The tribunal dismissed the application, concluding that the respondent had not discriminated against the applicant. It found that the term “provide” in the context of the medical device did not imply a continuing obligation to supply the device once it was discontinued. The tribunal further held that the applicant’s claims of discrimination were not supported by the evidence. Consequently, the tribunal prohibited the disclosure of the applicant's name under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW).

Orders

Orders of the court

(1) The application is dismissed.

(2) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act), the disclosure of the applicant’s name, including any further identifying information as provided in connection with these proceedings, is prohibited.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	GXM v Becton Dickinson Pty Limited [2025] NSWCATAD 62
Hearing dates:	14 November 2024
Date of orders:	12 March 2025
Decision date:	12 March 2025
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J Redfern PSM, Senior Member Dr M Murray, General Member
Decision:	(1) The application is dismissed. (2) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act), the disclosure of the applicant’s name, including any further identifying information as provided in connection with these proceedings, is prohibited.
Catchwords:	HUMAN RIGHTS – discrimination – on the ground of disability and sex – direct and indirect discrimination alleged – whether medical device provided to the applicant – meaning of “provide” – whether the respondent refused to provide medical device to the applicant when product discontinued by US parent.
Legislation Cited:	Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Disability Discrimination Act 1992 (Cth),
Cases Cited:	State of NSW v Whiteoak [2014] NSWCATAP 99 Travis v New South Wales [2001] FMCA 18 Waters v Public Transport Corporation [1991] HCA 49; (1992) 173 CLR 349 Winters v Fogarty [2017] FCA 51
Texts Cited:	Nil
Category:	Principal judgment
Parties:	GXM (Applicant) Becton Dickinson Pty Ltd (Respondent)
Representation:	GXM (self-represented) R Kumar (Respondent) Solicitors: HWL Ebsworth Lawyers
File Number(s):	2024/00152373
Publication restriction:	Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act), the disclosure of the applicant’s name, including any further identifying information as provided in connection with these proceedings, is prohibited.