Jimenez v Transport for New South Wales

[2024] NSWCATAD 166

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Jimenez v Transport for New South Wales [2024] NSWCATAD 166

Hearing dates:

14 and 15 March 2024

Date of orders:

20 June 2024

Decision date:

20 June 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

L Andelman, Senior Member
M Maher, General Member

Decision:

(1) Pursuant to s 103(1) of the Anti-Discrimination 1977 leave is granted to the applicant to amend her complaint and rely on section 49J of the Anti-Discrimination 1977.

(2) The application is dismissed.

Catchwords:

HUMAN RIGHTS – discrimination – on the ground of a person’s disability – assumed disability - direct discrimination - qualifying body - goods and services

Legislation Cited:

Anti-Discrimination Act 1977

Transport Administration Act 1988

Road Transport Act 2013

Road Transport (Driver Licensing) Regulation 2017

Cases Cited:

AB v Registrar of Births, Deaths and Marriages [2006] FCA 1071

Director General, Department of Community Services v MM and Another [2003] NSWSC 1241

Dutt v Central Coast Area Health Service [2002] NSWADT 133

IW v City of Perth (1997) 191 CLR 1

Jimenez v Transport for NSW [2022] NSWSC 539

Peters v The University of Sydney [2015] NSWCATAD 238

Purvis v State of New South Wales (2003) 217 CLR 92

Rainford v Victoria (2007) FCA 1059

Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262

Short v Transport for NSW [2021] NSWCATAD 367

State of New South Wales v Whiteoak [2014] NSWCATAP 99

The Australian Press Council Inc v Southey [2021] NSWCATAP 9

Waters v Public Transport Corporation (1992) 173 CLR 349; [1991] HCA 49

Watts v Australian Post [2014] FCA 370; (2014) 222 FCR 220

YFA v Secretary, NSW Ministry of Health [2023] NSWCATAP 285

Texts Cited:

None Cited

Category:

Principal judgment

Parties:

Magdaleine Jimenez (Applicant)
Transport for New South Wales (Respondent)

Representation:

Counsel:
H Pararajasingham (Applicant)
M Watts (Respondent)

Solicitors:
Lexington Law Group Pty Ltd (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2023/00254386

Publication restriction:

N/A

REASONS FOR DECISION

1. Ms Magdaleine Jimenez, (“Ms Jimenez” or “the applicant”) in these proceedings, claimed that Transport for New South Wales (“TfNSW” or “the respondent”) contravened the Anti-Discrimination Act1977 (NSW) (“the Act”) by the taking of two actions. The first was the decision to suspend her driver licence on 20 January 2023 (“the Suspension”) and secondly, the direction to provide a particular medical advice and medical report on 2 February 2023 (“the Direction”).

2. Ms Jimenez pleaded that the disability was as defined in s 4 and referred to in s 49A(a) to (b) of the Act was an “assumed disability”. The assumed disability was epilepsy. It was contended that the Suspension and the Direction contravened ss 49J and or 49M of the Act and that she has suffered resultant loss and damage.

3. For the reasons that follow Ms Jimenez did not established that the respondent discriminated against her on the ground of the disability and the application is dismissed.

The allegations

The Suspension

4. The Suspension decision is contained in a letter dated 22 December 2022. Ms Jimenez’s conditional driver licence was suspended based on a view formed by the respondent that Ms Jimenez was “not medically fit to safely drive a motor vehicle” within the meaning of cl 65(1)(b) of the Road Transport (Driver Licensing) Regulation 2017 (“the Regulation”), which stated that:

(1) Transport for NSW may vary, suspend or cancel a person’s driver licence if it appears to Transport for NSW that –

…

(b) it would be dangerous for the person to drive a motor vehicle because of illness or incapacity, or because of the effects of treatment for such conditions.

5. The respondent indicated that it formed its view based on a medical opinion from an advisor and included an extract of the findings in the following terms:

• Inconsistencies in the histories as to taking anti-convulsant medication; it seems that it is taken from time to time, and this raises the question as to if that relates to periods of seizure recurrences. It is clear from the medical reports that Ms Jimenez has not followed medical advice; that is stopping medication and having a review with the Neurology Dpt. at Westmead as suggested by Dr Wardman in December 2021. Failure to take advice and an inconsistent history are both reasons to be assessed as not fit to drive. (pages 129 and 136)

• Currently it is impossible to rely on the history and not driving till the history is more clear is advised in the standards.

• Ms Jimenez is currently unfit to drive until further information can be provided regarding the nature and frequency of her epilepsy. This should be obtained by a prolonged, that is a 5-day ambulatory EGG recording, as well as obtaining history from a close relative, such as one of her 3 children to confirm or not the epilepsy history. The ambulatory EGG is best arranged through a neurologist, perhaps one that she has seen previously. A report from her local practitioner would also help to give a clearer picture. The LMOs (Local Medical Officer) history should detail what and when any anticonvulsant medication was prescribed, as well as history of any ‘attacks’.

6. Ms Jimenez was advised that the lifting of the suspension would be considered if she was able to supply a further medical report from her neurologist addressing the criteria and confirming her medical fitness to hold a private or a commercial class driving licence.

7. The criteria were:

1. Adherence to anti-convulsant medication;

2. Comment on the blood levels of anti-convulsants (monthly blood tests to monitor level); and

3. Confirm you are considered medically fit to drive.

8. The letter advised that Ms Jimenez had a right to appeal the decision to the Local Court within 28 days of receiving the letter.

Direction

9. The Direction decision is contained in a letter dated 2 February 2023. The letter stated that the respondent would consider lifting the Suspension if Ms Jimenez was to supply a report from a neurologist that included the following:

1. Results of a 5 day ambulatory electroencephalography (“EEG”) monitoring or other recommendations as seen fit by the specialist;

2. If the person follows medical advice as prescribed or recommended; and

3. If the person is considered medically fit to hold a private or a commercial licence.

10. The letter also set out an extract of a medical opinion from an advisor and included an extract of the findings in the following terms:

I have reviewed my earlier TfNSW reports from July 2022 and December 2022., (sic) as well as the report from Dr Spira, neurologist from October 2022. A number of recommendations were made by me in view of inconsistencies in the histories relayed to the neurologists seen by Ms Jimenez. These were clearly laid out in the letters to Ms Jimenez from Licence Review Unit dated 30th December 2022 and 24th January 2023. The report from Ms Jimenez LMO, Dr Osman dated 18 January 2023 does not address all of the concerns/ recommendations in those earlier reports. Dr Osman does indicate that there have been no reports to his medical practice of any incidents or seizures, and this was confirmed by Ms Jimenez’s partner (since 2009) whom was interviewed.

I spoke with Dr Osman today. He has no knowledge of Ms Jimenez taking anticonvulsants, that is he has not prescribed them. When he wrote his certificate (18 January 2023) he was aware of the recent Licence Review Unit correspondence with its recommendations. He was also aware of the abnormal EEG (2021) and this was recorded at Westmead Hospital. He was not sure why the recommendation by Dr Wardman to have further studies with Dr Wong at Westmead hospital was not carried out.

The issues relevant to driving are whether Ms Jimenez should drive, considering the inconsistencies in the history and non-compliance with advice regarding medication and further investigations. Dr Osman's report does support that there have been no reported incidents or seizures seen by her partner since 2009, and that she was not on anti-seizure medication. None of the other concerns (as mentioned in earlier correspondence to Ms Jimenez) were covered in that report, through Dr Osman had seen the recommendations. The history of both major and minor seizures and abnormal EEG would all indicate a diagnosis of epilepsy. The issues raised may fall within the scope of the AFTD standard. Although there is no history of seizures for several years, the inconsistencies noted and non-compliance with specialist advice regarding medication and further investigations override the apparent compliance with AFTD guidelines (page 136).

The medical information is incomplete and further information is required. At this stage and with the additional information, the following would be of considerable help; Epilepsy specialist consultation with view to 5-day ambulatory monitoring (as discussed previously), or other recommendations as seen fit by the specialist. No longer need information about anticonvulsant use or drug monitoring, or accounts from relatives.

Therefore, my recommendations are: Currently UNFIT to drive pending receipt of additional information. In this case, a further Specialist report is recommended because of the issues described above. The abnormal EEG suggests an ongoing epilepsy propensity. We need to ensure that minor seizures, that would pose a risk to driving are not occurring, and/or need for treatment to allow driving safely. This applies to both private as well as commercial licenses (sic).

Recommended additional information to be provided to assist in determination of fitness to drive: epilepsy neurologist review with 5 day ambulatory EEG and/or other recommendations from the specialist regarding risk of epilepsy recurrence and possible need for treatment.

Evidence

11. Ms Jimenez relied on her three affidavits. The respondent relied on the evidence of Mr Lee Cheetham, manager of the respondent’s Licence Review Unit and Dr David Sharpe a neurologist. The three witnesses were cross examined.

12. There was a large number of medical reports exhibited to Ms Jimenez’s affidavits and Mr Cheetham’s affidavit. We list these in chronological order below:

1. Letters by Dr Halpern, neurologist dated 5 March and 30 April 2002;

2. Letter by Dr King, neurologist dated 20 May 2002;

3. Letters from Dr Barnett, consultant neurologist dated 24 January and 8 February 2006 referring to a normal EEG conducted in 2005;

4. Medical Assessment Form for private car and taxi cab drivers dated 5 December 2016 prepared by Dr Burmey;

5. A letter by Dr Dowla, consultant in neurology and clinical neurophysiology dated 15 February 2017 referring to a normal EEG;

6. A letter from Dr Boyce a neurologist on 2 March 2017;

7. A letter by Dr Dowla, dated 30 November 2018;

8. A sleep deprived EEG Report performed on 21 June 2020;

9. A sleep deprived EEG Report performed on 22 March 2021;

10. A letter from Professor Steve Vucic, neurologist to Dr Khaled Osman, general practitioner dated 6 April 2021;

11. A letter from Dr Wardman, neurologist to the respondent dated 9 December 2021;

12. A letter from Professor Vucic to the respondent dated 17 December 2021;

13. Fitness to drive opinion provided by Dr Sharpe dated 6 June 2022;

14. Medical Specialist Fitness for Assessment Report for driver licences prepared by Dr Spira, a neurologist on 25 October 2022;

15. An EEG Report performed on 21 September to 22 September 2022;

16. Fitness to drive opinion provided by Dr Sharpe dated 16 December 2022;

17. A medical certificate by Dr Osman dated 18 January 2023;

18. Fitness to drive opinion provided by Dr Sharpe dated 1 February 2023.

Chronology of events

13. Between around 1973 and 1987, Ms Jimenez had between eight to ten epileptic seizures. From about 1973, Ms Jimenez was prescribed a medication known as “Epilum”.

14. Ms Jimenez was issued with various driving licences from 1980. It was not in dispute that Ms Jimenez never had any incidents whilst driving due to epileptic seizures.

15. Ms Jimenez provided the respondent with a letter from Dr Barnett, consultant neurologist dated 24 January 2006. The letter set out Ms Jimenez’s history of seizures and medication and stated:

Neurological examination was normal.

Miss Jimenez’s epilepsy is extremely well controlled at present, but I'm not sure whether the tiny dose of Epilim she is taking is contributory. I do not think that her sensation of “not feeling right” is seizure-related, and her nocturnal hypnagogic jerks and head numbness are also unlikely to be linked to the epilepsy. I discussed the pros and cons of coming off treatment with Miss Jimenez. She is quite reliant on her driving and is at this stage not willing to reduce the Epilim further. I do not think there is any need to repeat her MRI scan, which was reported to be normal in 2000. She has agreed to have an up-to-date EEG.

I have arranged follow up here in three months’ time.

16. Ms Jimenez’s evidence was that consistent with Dr Barnett’s advice, she stopped taking the medication Epilim in 2010.

17. On 20 October 2015, Ms Jimenez obtained an “MR licence” in order to perform work driving medium rigid trucks.

18. Ms Jimenez provided the respondent with a Medical Assessment Form for private car and taxi cab drivers dated 5 December 2016 by Dr Burmey.

19. On 22 February 2017, Dr Dowla, a consultant in neurology and clinical neurophysiology provided a report to the respondent without any request or intervention by TfNSW.

20. Dr Dowla’s report was dated 15 February 2017. The report was based on a consultation with Ms Jimenez and an EEG Report. Dr Dowla concluded that Ms Jimenez’s EEG was within normal limits and an underlying seizure disorder “cannot be diagnosed”. Dr Dowla recommended that Ms Jimenez continue to drive with a driver authority and drive commercial vehicles.

21. On the same day, Ms Williams, the Acting Manager of the Licence Review Unit requested that Ms Jimenez’s file be reviewed by a neurologist, to provide an opinion on her medical fitness to drive in accordance with the “Assessing Fitness to Drive” standards published by Austroads 2022 edition (“AFD Standards”).

22. The respondent obtained a report from Dr Boyce a neurologist on 2 March 2017. Dr Boyce referred to Dr Dowla’s report in 2017 and Dr Barnett’s reports. Dr Boyce considered that the medical information to be complete and he did not consider that further information was required. He considered the medical condition to be “epilepsy” or “epileptic condition”. Dr Boyce considered that Ms Jimenez was suitable for a conditional and an unconditional license. Dr Boyce considered that a medical review be conducted in 12 months time, ideally from Dr Dowla including the conduct of an EEG.

23. On 8 March 2017, Ms Jimenez obtained a Private Hire Vehicle Driver Authority, enabling her to drive passenger vehicles.

24. On 10 September 2018 the respondent informed Ms Jimenez that she was requested to undergo a medical examination by a neurologist to determine her medical fitness to drive pursuant to cl 60 of the Regulation.

25. The medical assessment was to be conducted in accordance with the commercial medical standards set out in the AFD Standards.

26. The neurologist was required to address the following criteria;

1. that there was no seizures in the last 10 years;

2. an EEG conducted in the last six months has shown no epileptiform activity and no other EEG conducted in the last 12 months has shown epileptic form activity;

3. the person follows medical advice, including adherence to medication if prescribed or recommended; and

4. if the person is considered medically fit to hold a commercial class of driver licence results of EEG must be provided.

27. The report was required to be returned to the respondent within eight weeks from the date of the letter. Alternatively, Ms Jimenez could drive cars or light rigid vehicles without the passenger transport (PT) licence condition. She could elect to have the ‘condition’ removed without the need to undertake a specialist medical review.

28. On 18 November 2018, Ms Jimenez wrote to the respondent. She stated that she was no longer an epileptic and had not been an epileptic since 2010. She relied on Dr Dowla’s report which she stated she provided to the respondent when she applied for a Driver Authority in late 2015. She noted that ‘any side effect incidents’ described by her to Dr Dowla were prior to 2005.

29. She referred to the fact that Dr Dowla’s report fell within the three year acceptable period in the Fitness to Drive Guidelines. She also stated that she no longer required to be endorsed with a Driving Authority. She asked for clarification about which aspect of the AFD Standards relied on and stated that if her licence was cancelled she would be unable to work.

30. On 22 November 2018 the respondent wrote to Ms Jimenez including the following:

The reports you have provided from Dr Dowla were previously submitted and reviewed by … (a) neurologist in 2017, who recommended you met the conditional commercial licencing standards with annual specialist review.

Part B6, page 89 of the Assessing Fitness to Drive standards states in regard to commercial licence holders with a history of seizure:

A person is not fit to hold an unconditional licence:

if the person has experienced a seizure.

A conditional licence may be considered by the driver licence authority, subject to annual review, taking into account information provided by a specialist in epilepsy as to whether the following criteria are met.

there has been no seizures for the least 10 years; and

an EEG conducted in last six months has shown no epileptiform activity and no other EEG conducted in the last 12 months has shown epileptiform activity; and

the person follows medical advice including adherence to medication if prescribed or recommended.

There's no record of you having complied with the request of 10 September 2018. …In the circumstances, there's no alternative but to suspend your drivers licence … under the provisions of the Road Transport Driver Licencing Regulations 2017, Clause 65(1)(a).

31. The respondent suspended Ms Jimenez’s licence from 13 December 2018.

32. On 30 November 2018, Dr Dowla provided a report to Dr Lingamaneni. Dr Dowla’s opinion was that:

The underlying seizure disorder cannot be diagnosed. I understand that her last seizure was in 1987 and currently she has a normal EEG (as of 2017). I therefore recommend that she continues to drive with a driver authority and drive commercial vehicles.

33. Based on Dr Dowla’s report the respondent lifted the suspension of Ms Jimenez’s licence on 17 December 2018 and notified her that the next review date would be September 2019.

34. Ms Jimenez commenced proceedings in the Local Court challenging the validity of the respondent’s requirement on her to provide it with annual medial reviews. The Local Court made an order removing the condition on her licence to submit annual medial reviews “arising from her historical seizures”.

35. On 5 January 2021, Ms Jimenez was issued with a light rigid (LR) licence. The LR licence permits persons to drive trucks. Ms Jimenez began driving trucks as a form of income.

36. On 22 March 2021 Ms Jimenez obtained a sleep deprived EEG which demonstrated bilateral frontotemporal dysfunction including epileptiform discharges with a left sided and polyspike morphology.

37. At this time, Ms Jimenez had been seeing Dr Vucic for some 18 months. Dr Vucic recommended that Ms Jimenez seek a second opinion as a result of the 2021 EEG and stated that he had “encouraged” her to go back on the medication “although this was not mandatory”. Ms Jimenez’s evidence was that she started to experience serious side effects from the medication and ceased taking the medication after “a couple of months”. However she purchased a new prescription of the medication in September 2021 “just in case I needed it in the future” however she never used that prescription.

38. On 2 August 2021 the respondent issued Ms Jimenez with a “Fitness to Drive Notice”. Ms Jimenez was required to undertake a review by a neurologist regarding her current medical condition, described as “neurological condition” in accordance with cl 60 of the Regulation.

33. On 11 August 2021, Ms Jimenez wrote to the respondent denying that she had a neurological condition and relying on the Court Order made by the Local Court dated 1 July 2019.

34. On 6 September 2021 the respondent wrote to Ms Jimenez:

The court order dated 1 July 2019 stated that our decision to require you to submit an annual medical report arising from your historical seizures from epilepsy be removed. This means we cannot require you to provide medical reports on an annual basis and we have not done so. The court made no decision regarding whether you have a neurological condition or whether such conditions should be removed from your driving record.

The medical standards for licensing for drivers suffering or having suffered seizures or epilepsy are set out in Section 6.2 of the Standards. I note the default standard is that a driver is not fit to hold an unconditional commercial licence if they have experienced a seizure. However, a conditional licence may be considered subject to periodic review based on information provided by specialists in epilepsy. The default review period is annually, which can be reduced for drivers undergoing treatment for epilepsy who have been seizure free for more than 20 years.

I note you are not currently receiving treatment for epilepsy, having ceased taking the medication in 2010. According to the Standards, this would make you ineligible to retain a commercial licence. However, we have considered your situation as an exceptional case and have approved the issue of a conditional licence based on the information provided in the reports of Dr Dowla, dated 15 February 2017 and 8 January 2019. The Standards require that a conditional licence issued in these circumstances be subject to at least an annual review.

Following the decision of the court to remove the annual review requirement, we reduced the review period for you to maintain your conditional commercial licence to every two years. …

We have a statutory obligation to ensure all licence holders are medically fit and competent to drive safely. …

While your previous medical reports confirm you have not experienced any seizures since 1987, the Standards are very clear in requiring ongoing medical review, even where the driver has been seizure free for over 20 years. The Standards are considered the primary source for all Australian driver licencing authorities in making determinations about a driver's fitness to hold a licence.

As prescribed by clause 60 of the Road Transport Driver Licencing Regulation 2017, we require you to provide a neurologist report by 29 October 2021.

41. On 18 October 2021, the respondent informed Ms Jimenez that the “neurological condition” was placed on her driving record on 26 February 2019 “as it is the most appropriate condition available on our Licensing System to reflect your history of seizures and similar episodes”. It also explained that “epilepsy” which was recorded as a medical condition on her driving record since 7 March 2017 “expired” on 26 February 2019 as the reports from the neurologist “did not confirm a diagnosis of epilepsy, however they do confirm a history of multiple seizures and a number of episodes of a similar nature.”

42. On 8 November 2021 the respondent suspended Ms Jimenez’s commercial licence as she failed to provide it with a “Fitness to Drive Report”.

43. On 6 December 2021, Dr Wardman a neurologist reviewed Ms Jimenez. She was referred to him by Dr Vo, Ms Jimenez’s general practitioner as suggested by Dr Vucic, for the purpose of gaining a “second opinion”. On 9 December 2021, Dr Wardman provided a “Medical Condition Notification Form” to the respondent and to Ms Jimenez’s general practitioner, Dr Vo.

44. Dr Wardman wrote a report to Dr Vo. The report referred to a conversation between the doctors conducted after Ms Jimenez’s review and a subsequent telephone call with Ms Jimenez.

45. Dr Wardman stated:

Ms Jimenez, 59 years, has a history of epilepsy but states that her last seizure was in 1987, with a funny turn in 1991. She denies any seizures generalised or focal since 1987. She has previously been prescribed Epilim, although has not been taking this medication for several months despite her GP prescribing the medication. She has been reviewed by number of neurologists previously, her most recent sleep deprived EEG 22 March 2021 reported bilateral frontotemporal epileptiform discharges which had a polyspike morphology and maximal on the left. She was strongly advised to take antiepileptic medication and be reviewed by the comprehensive epilepsy service.

46. Dr Wardman contacted Dr Vo to inquire about antiepileptic medication prescribed to her by Dr Vo and clarification about her medical history as there were some inconsistencies. Dr Wardman queried Dr Vo about the fact that his letter of referral stated that Ms Jimenez was taking Epilim, but that Ms Jimenez advised that she had not taken antiepileptic medication since 2010.

47. Dr Wardman stated in the letter to Dr Vo that he had advised Ms Jimenez to inform the respondent that she had an appointment with the comprehensive epilepsy service in February 2022 and take Epilim as prescribed by Dr Vo.

48. On 17 and 20 December 2021, the respondent suspended Ms Jimenez’s commercial licence and her private licence respectively because of her failure to provide a satisfactory medical report from a neurologist based on commercial licence criteria and the private licence criteria.

49. On 18 January 2022, Ms Jimenez provided the respondent with a letter from Dr Vucic which stated that Ms Jimenez has epilepsy and that her last seizure was pre 1987. Dr Vucic stated that “I am happy for her to resume driving a motor vehicle.”

50. On 19 January 2022 the respondent wrote to Ms Jimenez in response to the letter from Dr Vucic on 18 January 2021. The respondent stated that the letter could not be considered because it did not address the criteria specified in the cancellation letter dated 20 December 2021. The criteria for a private driver licence were a medical report from the treating neurologist setting out:

1. Compliance to prescribed medication that has been confirmed through periodic drug-level monitoring; and

2. An opinion as to medical fitness to hold a private class of driver licence.

51. The criteria for a commercial class of driver licence were a medical report from the treating neurologist setting out:

1. That there have been no seizures for at least 10 years;

2. Compliance to prescribed medication that has been confirmed through periodic drug-level monitoring;

3. An EEG conducted in the last six months has shown no epileptiform activity and no other EEG conducted in the last 12 months has shown epileptiform activity’ and

4. An opinion as to medical fitness to hold a commercial class of driver licence.

52. On 24 January 2022, Ms Jimenez commenced proceedings in the Local Court appealing the decision regarding the commercial licence criteria and on 5 May 2022 the Supreme Court refused to grant injunctive relief sought by Ms Jimenez: Jimenez v Transport for NSW [2022] NSWSC 539

53. On 7 March 2022, Ms Jimenez provided the respondent with a Medical Specialist Fitness Assessment Report signed by Dr Vucic which stated that “there has been no seizures since 1987. Has been off all medications since 2010.” Dr Vucic recommended that Ms Jimenez met the criteria for a conditional driver licence with a yearly review. Dr Vucic failed to indicate whether this assessment applied to a private or a commercial licence or both.

54. On 8 March 2022, the respondent rejected Dr Vucic’s Report on the basis that it did not comply with the criteria set out in its letter dated 19 January 2022.

55. On 20 May 2022, Ms Jimenez provided the respondent with a Medical Specialist Fitness Assessment Report signed by Dr Vucic on 20 May 2022 in identical terms to the report dated 5 March 2022.

56. On 6 June 2022 the respondent asked Dr Sharpe to provide an opinion on Ms Jimenez medical fitness to drive in accordance with the ADF Guidelines.

57. On the same day Dr Sharpe provided a report to the respondent. The report was in regard to a private class of licence. Dr Sharpe’s summary of findings based on the documents he was briefed with identified that he understood that Dr Sharpe described Ms Jimenez’s condition as an “epileptic condition”. He identified the key issues or information determining his recommendation to be “whether Ms Jimenez should be driving, considering her history of non-compliance with anticonvulsant medication and in the presence of an abnormal EEG (epileptiform), despite no history of epileptic attacks since 1991. She has been taking Epilim possibly intermittently over the years, but not in accordance with her GPs advice. Her history to various neurologists does not seem consistent especially regarding taking her anticonvulsant medication. Compliance with medication and medical advice are conditions of the driving standards.

58. Dr Sharpe made reference to issues raised in AFD Standard section B6 at pg. 90. Dr Sharpe stated:

Therefore my recommendations are in view of the unreliable and inconsitant (sic) history of medication, but in view of apparent freedom from epileptic attacks for decades, a conditional licence should be considered if Ms Jimenez can demonstrate adherence to medication, and this is verified with blood level monitoring, and neurological reviews. An adequate/adult dose of medication is desirable in view of the abnormal EEG. In this case, a further specialist report is recommended because: to monitor her adherence to medication and review her epilepsy control.

59. On 7 June 2022 the respondent wrote to Ms Jimenez informing her that based on information received and reviewed by Dr Sharpe, she could apply for a class C or LR drive licence. Ms Jimenez was informed that the key issues identified by their medical advisor included concerns about an unreliable and inconsistent history of medication, adherence to medication, abnormal EEG in 2021.

60. The next review was to be in December 2022 at which time Ms Jimenez was required to provide a report from a neurologist to confirm adherence to anti-convulsant medication and monitor epilepsy control and that the report from the GP would need to comment on monthly blood levels of anti-convulsants.

61. On 18 November 2022, the respondent in reliance of the report from Dr Sharpe issued Ms Jimenez’ with a licence, however determined that a report by a neurologist and a GP was required to be provided by 1 February 2023.

62. On 25 October 2022, Ms Jimenez provided the respondent with a Medical Specialist Fitness Assessment Report by Dr Spira, a neurologist. Dr Spira stated that Ms Jimenez had not had a seizure since 1987, has been off antiepileptic medication since 2010 and concluded that the risk of seizure is “extremely low”. The report was supported by an EEG conducted on 21 September 2022 which showed no epileptiform activity.

63. In response to Dr Spira’s report and EEG results, the respondent determined to seek a second opinion by Dr Sharpe. Mr Parker from the respondent stated in an email to other staff in TfNSW that “Transport have concerns regarding the reliability of information provided as each new report provided comes from a different neurologist.”

64. Dr Sharpe produced the second report on 16 December 2022. He again identified the key issues or information determining his recommendation to be inconsistencies in the histories of taking anticonvulsant medication. Dr Sharpe stated:

It is clear from the medical reports that Ms Jimenez has not followed medical advice; that is stopping medication, and having a review with the Neurology Dpt. At Westmead as suggested by by (sic) Dr Wardman in December 2021. Failure to take advice and an inconsistent history are both reasons to be assessed as not fit to drive. (pages 129 and 136) Currently it is impossible to rely on the history and not driving till the history is more clear is advised in the standards.

65. Dr Sharpe contacted Dr Spira who advised him that Ms Jimenez attended with her sister who confirmed the absence of recent seizures. Dr Spira confirmed that Ms Jimenez informed him of no use of anticonvulsant drugs since 2010.

66. Dr Sharpe recommended that Ms Jimenez was currently unfit to drive pending receipt of additional information stated as:

In view of the above concerns one needs further information regarding the nature and frequency of her epilepsy. This should be obtained by a prolonged, that is 5 day ambulatory EEG recording, as well as obtaining history from a close relative, such as one of her 3 children to confirm or not the epilepsy history. The ambulatory EEG is best arranged through a neurologist, perhaps one that she has seen previously. The LMOs history should detail what and when any anticonvulsant medication was prescribed, as well as history of any ‘attacks’.

67. On 22 December 2022 the respondent wrote to Ms Jimenez responding to the report provided by Dr Sharpe. The respondent determined to suspend Ms Jimenez’s licence and stated that the lifting of the suspension would be considered if Ms Jimenez was to supply a medical report from a neurologist confirming that there is an adherence to anti-convulsant medication, comment on the blood levels of anti-convulsants (monthly blood tests to monitor levels) and confirm you are considered medically fit to drive by 3 January 2023. This was extended to 20 January 2023 on 30 December 2022.

68. On 18 January 2023, Ms Jimenez provided a report by her general practitioner, Dr Osman since April 2020. Dr Osman stated that he referred her to Dr Vucic and Dr Spira. Dr Osman confirmed that Ms Jimenez’s last epileptic manifestation was in 1987 and that she has been off anticonvulsants since 2010. Dr Osman stated that under neurologist’s advice she is not required to take any anti-epileptic medications, “therefore no blood testing is required to measure medication blood levels.”

69. Dr Osman also stated that Ms Jimenez’s partner who is a long standing patient confirmed that there have been no incidents of seizures since 2009 which is when their relationship was formed.

70. Ms Jimenez also provided a letter from her niece which stated that she recalled the last time Ms Jimenez had a seizure was in 1987 when she was on holidays in Tonga.

71. On 24 January 2023, the respondent wrote to Ms Jimenez informing her that it did not consider that she was at the present time medically fit to drive a motor vehicle as it had not received a report from a neurologist confirming that she “no longer required to take antiepileptic medication”. It also pointed to a medical report dated 9 December 2021 that she was prescribed Epilim but was not compliant and not taking it, that she was “strongly advised to take antiepileptic medication and be reviewed by the comprehensive epilepsy service”.

72. The letter went on to state that in regard to the commercial class driver licence Ms Jimenez was required to provide a report from a specialist in epilepsy confirming that she met the criteria within the Exceptional cases standard at pg. 135 of the AFD Standards. In regard to the private class of licence a suspension would be lifted if she was to provide a report from a specialist in epilepsy commenting on whether a 5 day ambulatory EEG is required; if a planned withdrawal of antiseizure medication had occurred since the last dose, whether medical advice was followed where required and whether she is medically fit to hold a private class of licence.

73. On 31 January 2023, Mr Cheetham wrote to Ms Jimenez stating that in regard to the commercial licence she should request Dr Spiro to update his report with information about whether she follows medical advice, including adherence to medication and whether the 5 day EEG was required or not.

74. Later that day, Ms Jimenez responded to Mr Cheetham stating that she does not suffer from epilepsy and does not require medication. She stated that she was seeking a reinstatement of her standard driving licence and that she has suffered “serious loss, pain, suffering, legal expenses, depression, loss of income” and unable to work with foster children which caused her great sadness.

75. A few hours thereafter, Mr Cheetham informed Ms Jimenez that he would refer her documents to the medical advisor for another adjudication.

76. On 1 February 2023, Dr Sharpe produced his third report. He found that Ms Jimenez was currently unfit to drive pending receipt of additional information regarding whether there was a need for a “5 days ambulatory EEG and/or other recommendations from the specialist regarding risk of epilepsy recurrace (sic) and possible need for treatment..”

The Law

77. Sections 4 and 49A of the Act define a disability as a disability a person has, has had, or will have in the future and a presumed disability.

78. Direct discrimination, which is what is alleged in this claim is set out in s49B(1)(a):

(1) A person ("the perpetrator" ) discriminates against another person ("the aggrieved person" ) on the ground of disability if the perpetrator--

(a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability,

79. Section 49J makes it unlawful for a qualifying body to discriminate against a person on the ground of disability:

(1) It is unlawful for an authority or body which is empowered to confer, renew or extend an authorisation or a qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation to discriminate against a person on the ground of disability--

(a) by refusing or failing to confer, renew or extend the authorisation or qualification, or

(b) in the terms on which it is prepared to confer the authorisation or qualification or to renew or extend the authorisation or qualification, or

(c) by withdrawing the authorisation or qualification or varying the terms or conditions upon which it is held.

80. Section 4(4) of the Act expands the meaning of conferring, renewing or extending an authorisation or a qualification in the following way:

A reference in this Act to the conferring, renewing or extending of an authorisation or a qualification, in relation to an authority or a body which is empowered to confer, renew or extend an authorisation or a qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation, includes a reference to the conferring, renewing, extending, granting, awarding, approving, issuing or accepting of a recognition, registration, enrolment, approval or certification by such an authority or such a body or to the admission of a person to membership of such an authority or such a body.

81. Section 49M makes it unlawful to discriminate against a person on the ground of disability in the provision of goods and services:

(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability--

(a) by refusing to provide the person with those goods or services, or

(b) in the terms on which he or she provides the person with those goods or services.

Submissions

82. The applicant submitted that the respondent made the decisions regarding the Suspension and the Direction “on account” of the disability and that “there is no legal or reasonable basis” for the respondent’s decisions as “the weight of the evidence” established that Ms Jimenez was fit to drive and met the criteria for an unrestricted/unconditional license.

83. The applicant submitted that she was subjected to detrimental treatment that a hypothetical comparator without the disability would not have received and that the treatment was because of her disability, which was an assumed disability.

82. The hypothetical comparator was described as a woman, 62 years of age with a licence issued since 1981, seeking to renew her licence.

83. Regarding s 49J(1) the applicant submitted that the respondent is an authority or body which is empowered to confer, renew or extend an authorisation or a qualification that the applicant required for the practice of a profession; the carrying on of a trade or the engaging in of an occupation.

84. The applicant relied on her evidence that she needed a driver’s license for the practice of her profession, the carrying on of a trade, or the engaging in of an occupation which was a commercial purpose, which is the Light Rigid, Medium Rigid and Passenger vehicles.

85. Ms Jimenez relied on the report of Dr Vucic dated 17 December 2021. Dr Vucic was Ms Jimenez’s treating neurologist since 2019. Dr Vucic stated that Ms Jimenez’s last seizure was pre 1987 and that he was “happy for her to resume driving a motor vehicle.”

86. Ms Jimenez relied on a “Medical Specialist Fitness Assessment Report for Driver Licences” by Dr Spira dated 25 October 2022. Dr Spira stated that an EEG was undertaken on 21 September 2022 which returned a “normal” result and that the EEG indicated “no focal slowing, no unequivocal epileptiform activity photic stimulation produced normal driving response. No clinical or sub clinical seizures captured. Conclusion: normal awake and drowsy background. No epileptiform discharges, no focal slowing. Dr Spira concluded that “the seizure risk is extremely low”.

87. Ms Jimenez relied on a report by Dr Osman dated 18 January 2023 who was her treating physician since 2020. Dr Osman noted that “the record shows that the last epileptic manifestation was in 1987 in addition she has been off anticonvulsants since 2010 and the neurologist’s advice is that she is not required to take any anti-epileptic medications, therefore no blood testing is required to measure medication blood levels. In addition I'm also the treating general practitioner of her partner who has confirmed with me that there has been no incidence of any seizures experienced by her in all the time he has been in a relationship with her since 2009.”

88. The respondent submitted that there was no dispute that the applicant had a disability. However the respondent denied that it was acting as a qualifying body or providing services to the applicant.

89. The respondent relied on a report by Dr Wardman who examined Ms Jimenez on 6 December 2021. On 9 December 2021, Dr Wardman produced a report to the respondent which stated that Ms Jimenez was “non-compliant with taking her antiepileptic medication”. Dr Sharpe relied on Dr Wardman’s statements in making the Suspension and the Direction decisions in his second and third report.

90. The respondent’s evidence was that the AFD Standards are guidelines that prescribe medical standards for driver licensing in Australia and New Zealand. Part B of the AFD Standards are titled “Medical Standards” and sub-part 6 is titled “Neurological conditions”. 6.2 refresh to “Seizures and epilepsy”. The AFD Standards contain provisions relating to neurological conditions such as seizures and epilepsy.

91. TfNSW identified the hypothetical comparator as a person who is:

1. At risk suffering seizures while driving

2. the subject of concerns regarding the consistency of information she has supplied to treating doctors about whether she has been prescribed anti-seizure medication, and if so, whether she has taken it diligently as recommended;

3. a person holding a private driver's licence in respect of whom the respondent holds all the relevant medical evidence;

4. a person who displays the manifestations of the applicants disability.

94. TfNSW’s submission was that Mr Cheetham’s evidence, that at all times he acted pursuant to the AFD Standards and Dr Sharpe’s opinions should be accepted.

95. The respondent denied that it treated the applicant less favourably on the ground of disability. Even if unlawful discrimination was found, the respondent relied on s 54 of the Act and submitted that the Suspension and the Direction was made in order to comply with a requirement with cl 65 and 68 of the Regulation and even if unlawful discrimination was found and the defence in s54 was found not to apply, the respondent submitted that the Tribunal should not order the relief sought by the applicant.

Consideration

Is the Respondent a qualifying body?

96. The applicant sought leave to amend the complaint to rely on s49J of the Act. The respondent did not identify any prejudice or unfairness that would flow from any amendment. It did not consent or oppose the application. The Tribunal determined to grant leave to the applicant to amend her complaint to include an allegation that the respondent is a “qualifying body”.

97. The respondent accepted that it is an authority or a body which is empowered to confer, renew or extend an authorisation or a qualification but denied that the applicant needed the driver licence or that the driver licence facilitated “the practice of a profession”, or “the carrying on of a trade” or “the engaging in an occupation” as the Suspension and the Direction concerned a private driver licence as opposed to a commercial driver licence.

98. Ms Jimenez stated that her business as a mortgage broker had been “significantly effected” as her incapacity to drive has impacted on her capacity to attend client appointments which are often in people’s homes. She is less flexible in being able to meet clients in the evenings as there is less availability of public transport. Further she did not feel safe taking public transport at night.

99. We are satisfied that a drivers licence facilitated Ms Jimenez’s mortgage brokering business. We reject the respondent’s submission that the applicant needed to satisfy the Tribunal that she “requires” a private drivers licence in order to perform her work. It is sufficient for the applicant to prove that the licence assisted or aided her to perform the work.

100. In YFA v Secretary, NSW Ministry of Health [2023] NSWCATAP 285, the Appeal Panel at [74] stated that the word “empowered” is not confined to express power, whether statutory or legal. The respondent was empowered in this case to issue the private drivers licence because it had the discretion to do so pursuant to Pt 3-1 of Chapter 3 of the Road Transport Act 2013 (NSW).

101. We find that the respondent is a qualifying body within the meaning of s49J and that a drivers licence is an authorisation or a qualification and that the respondent’s decision to suspend the licence was a withdrawal of the driver licence. The Direction can be characterised as a variation of the terms and conditions on which the licence was held as the conditions set out in the Direction were different to the conditions set out in the Suspension notice.

Did the Respondent provide goods or services?

102. Section 4 of the Act provides a non-exhaustive definition of “services”, which includes “services relating to transport or travel”, ‘services of any professional or trade” or services provided by … public authority.” In IW v City of Perth (1997) 191 CLR 1 (“IW”) at 11-12 (Brennan CJ and McHugh J), at 22-23 (Dawson and Gaudron JJ), at 27 (Toohey J), at 41 (Gummow J) at 70 (Kirby J) found that “services” is to be given its ordinary and wide meaning, mindful of the purpose and social goals of preventing unlawful discrimination in various aspects of community life. Services was described to include “any act of helpful activity” or as “conduct tending to the welfare or advantage of another”.

103. In Waters v Public Transport Corporation (1992) 173 CLR 349; [1991] HCA 49 (“Waters”), there was no dispute that the introduction of scratch tickets and the removal of conductors on trams was a service which was performed “in the terms”. The “terms” referred to in s 49M of the Act are the terms which are given to the person who requires the goods or services Waters at 366 (Mason CJ and Gaudron J). As Brennan J explained at 375, where s29(1)(a) and 29(1)(b) were in similar terms to s 49M of the Act:

The performance of a service and "the terms on which" the service is performed are concepts which are kept distinct in s.29(1)(b) and (2)(b) of the Act. As s.29(1)(b) speaks of discriminating "in" the terms on which services are performed, discrimination must be found, if at all, in the terms on which the service is performed not in the performance of the service. Because of the correlation between the terms on which a service is performed and the performance of the service, the existence of discrimination can be ascertained only by reference to the terms on which an actual service is performed by the putative discriminator. The service relevant to an alleged act of discrimination is the service which the putative discriminator performs, not a service which the putative discriminator has been accustomed to perform, nor a service of a higher standard which the putative discriminator could perform but is not performing. For the purposes of s.29(1)(b), a service consists in what is performed, not in what is not performed. If there be any unlawful discrimination by non-performance, it must fall within s.29(1)(a).

104. The applicant in her closing submissions, submitted that the respondent’s service to the applicant included the provision and maintenance of a driver licence. It was alleged that the respondent contravened s49M(1)(a) and or s49M(1)(b) by refusing to provide the driver licence or suspending the licence conditional on the provision of further medical opinion and medical evidence. It was submitted that the Direction contravened s49M(1)(b) in that the Direction set out the terms on which the service was to be performed.

105. It was submitted that had the services been provided to her, that is a private driver licence (the Suspension) without any conditions (the Condition) that would have been beneficial to her in numerous ways including being able to care for foster children, work more effectively in her mortgage business as well as have a more fulfilled family and social life.

106. TfNSW submitted that it did not provide services because it was an exercise of a statutory function and not for the benefit of the applicant. It was submitted that the Direction was “mandatory” pursuant to s68(1)(b) of the Regulation. The Suspension was an imposition of an outcome on the applicant.

107. It was also submitted that the complaint was not sufficiently specified and must also be rejected on this basis.

108. We do not consider that there are facts in Short v Transport for NSW [2021] NSWCATAD 367 (Short) are apposite to the present case, as in that case the alteration to traffic management did not involve any conduct regarding an individual. In Short, the Tribunal found that the removal of median strips was not a provision of services to the person.

109. We consider that there are some similar factual circumstances between this case and Director General, Department of Community Services v MM and Another [2003] NSWSC 1241 (“MM”) and AB v Registrar of Births, Deaths and Marriages [2006] FCA 1071 (“AB”).

110. In MM the applicant made an application to be a foster parent and in AB the applicant made an application to change their birth certificate, in both cases the organisation was dealing with an application from an individual in the context of their responsibilities to provide services to the community.

111. In MM, Barr J dealt with questions of law referred to the Court by the Administrative Decisions Tribunal. One of the questions was:

Was the State of New South Wales providing “services” to AM and/or MM within the meaning of s49M(1) and s47 of the Anti-Discrimination Act 1977 when determining their application to become foster parents?

112. Barr J found that the selection of foster parents was a service the appellant provided to MM. At [41] he stated:

However, the fact that a person provides a service directly for the benefit of one person does not mean that that service is not also provided for anyone else. As Sully J found in NSW Police Force of Police v Russell, police officers may in relevant ways provide a service to the community at large as well as to individuals.

113. In AB, Heerey J at [66], stated that the consideration of an amendment to a birth certificate was a refusal of a service, despite the fact the Registrar was providing services to the general public. It did not change the character of the activity and was a service within the meaning of 22 of the Sex Discrimination Act 1984 (Cth).

114. TfNSW is a statutory corporation constituted under the Transport Administration Act 1988 (NSW) and its functions are conferred on it by this Act as well as the Road Transport Act 2013 (NSW) and the relevant Regulations, including the Regulation.

115. TfNSW has legislative obligations to all ensure road safety to all persons, however this does not preclude the respondent being able to provide services to an individual. A statutory corporation like the respondent can be simultaneously providing services to the public and to the applicant. As described in The Australian Press Council Inc v Southey [2021] NSWCATAP 9 at [99], as part of a ‘composite service’.

116. The respondent’s submissions that it did not intend to provide the applicant with any benefit is not the correct question to be asked. As Sundberg J stated in Rainford v Victoria (2007) FCA 1059 (“Rainford”) at [72].

117. The question must be whether the act is helpful or beneficial to the relevant class of persons to which the person alleging discrimination belongs. 

118. This is a question of fact, and we accept the applicant’s evidence that access to a driver licence would have been beneficial to her. The respondent’s motivations as to whether its actions are beneficial or not is not to the point.

119. We consider that the acts performed by the respondent in the provision of a driver licence was beneficial to Ms Jimenez and persons such as Ms Jimenez who apply for a drivers licence.

120. This brings us to the respondent’s second submission which is that its conduct was not the provision of a service because it was “executing its statutory functions” which was mandatory in c 65(1)(b) and c 68(1)(b) of the Regulation as to the Suspension and the Direction respectively.

121. In State of New South Wales v Whiteoak [2014] NSWCATAP 99 (“Whiteoak”), Mr Whiteoak made a complaint under the Act alleging that the State of New South Wales, through Corrective Services, discriminated against him on the ground of his race with regards to a number of decisions relating to his classification as an inmate.

122. The Tribunal’s then President Wright J stated at [158]:

… if a governmental function or statutory duty is being performed and the persons affected have no ability to decide whether to accept or reject what is done or the outcome, it is unlikely that services are being provided in those circumstances.

123. There are three points to note from the statement above and the conclusion of President Wright at [217]. First, it is clear that the Appeal Panel found that each case has to be considered on its own facts. Secondly, the statement above applies to “governmental functions or statutory duty” which we take to mean functions and duties that must be caried out pursuant by law. Third, that the governmental functions or statutory duties performed do not benefit the person and the relevant class of persons to whom the person is part of. That is, the performance of the governmental functions or statutory duties imposed an outcome on either the person or the relevant class of persons to whom the person is part of.

124. In this case, TfNSW was empowered to issue the private drivers licence because it had the discretion to do so pursuant to Pt 3-1 of Chapter 3 of the Road Transport Act 2013 (NSW).

125. Clause 65(1)(a) and (b) of the Regulation give the respondent a discretion to suspend a driver’s licence as well as to cancel or vary the licence:

(1) Transport for NSW may vary, suspend or cancel a person's driver licence if it appears to Transport for NSW that--

(a) the person has failed or refused to submit to a test or medical examination required under or in accordance with the Act or this Regulation, or has failed such a test or examination, or

(b) it would be dangerous for the person to drive a motor vehicle because of illness or incapacity, or because of the effects of treatment for such conditions, or

126. Clause 68 of the Regulation required TfNSW to give the person notice prior to suspending a licence:

(1) If Transport for NSW decides to vary, suspend or cancel a person's driver licence, Transport for NSW must give the person notice of--

(a) the reasons for the proposed variation, suspension or cancellation, and

(b) any action that must be taken by the licence holder in order to avoid or reverse the variation, suspension or cancellation, and

(c) the date after service of the notice on which the variation, suspension or cancellation takes effect.

127. It was inaccurate for the respondent to state in its 22 December 2024 letter that it “had no alternative” or that it was “necessary” to suspend Ms Jimenez’s licence as it had the discretion to act in a number of different ways. It was not mandatory to suspend the driver licence. So much was accepted by Mr Cheetham during cross examination.

128. Ms Jimenez had a right to appeal against the decision to suspend the licence as set out in the letter informing her of the Suspension.

129. TfNSW’s submission that its position was the same or similar as that of Corrections Services in Whiteoak, in that it was mandated to suspend Ms Jimenez’s licence is inconsistent with cl 65(1) of the Regulation. We reject the respondent’s submission that it was not providing Ms Jimenez services because it was an activity in discharge of government functions or statutory duties.

130. The Tribunal finds that TfNSW’s decision to suspend Ms Jimenez’s driver licence was a service “in the terms on which it was provided to her” within the meaning of s49M(1)(b) of the Act. In other words, TfNSW determined to suspend Ms Jimenez’s driver licence until she complied with the three criteria set out in the 22 December 2024 letter.

131. In regard to the Direction, we accept that cl 68 of the Regulation required TfNSW to provide reasons for its decision to suspend the licence, however these reasons were previously stated in the Suspension notice. The purpose of the Directions letter was to inform Ms Jimenez that the suspension of the licence was supported by a third report from Dr Sharpe dated 2 February 2024.

132. The applicant has failed to particularise the nature of the service she contents the respondent provided in the Directions letter. The service must be identified with “precision” IW at CLR 16-17 (Brennan CJ and McHugh J). The required precision of the identification of the service is to be determined on a case by case basis Waters at CLR 404 (McHugh J).

133. In this case the applicant failed to clearly set out whether the Direction engaged s40M(1)(a) or s40M(1)(b) of the Act. The terms, or conditions on which the services were to be performed was set out in the Suspension letter and simply repeated, although in a paraphrased manner in the Direction letter. It is unclear as to what ‘services’ are alleged be engaged in the Direction letter other than a re-statement of the criteria or conditions previously set out in the Suspension letter. The applicant’s claim that the Direction was services within the meaning of s40M of the Act is dismissed.

Discrimination

134. Ms Jimenez’s case before the Tribunal was that in fact she had no disability but that the respondent assumed she had a disability and discriminated against her on the basis of the assumed disability.

135. While it is not in dispute that Ms Jimenez has not experienced a seizure since 1987 there is no medical evidence from any of the neurologists that Ms Jimenez does not have an epileptic condition. Ms Jimenez’s own medical evidence was that she did have an epileptic condition. Dr Vucic stated in his letter dated 17 December 2021: “This is a letter to certify that Mrs Jimenez… has epilepsy…”

134. We prefer the evidence of Dr Vucic and others such as Dr Sharpe and Dr Wardman over that of Ms Jimenez as to whether she had a medical condition because neurologists are qualified to diagnose a medical condition such as epilepsy. We find on the basis of the evidence before the Tribunal that at the time of the Direction and the Suspension, Ms Jimenez did have a disability, the disability was epilepsy and that the last seizure was pre 1987.

135. Ms Jimenez must prove that TfNSW discriminated against her in the terms on which it was prepared to confer the licence or by withdrawing the licence (s49J(1)(b) and (c)) or by refusing to provide the service or in the terms on which it provided the service (s49M(1)(b)).

136. A number of propositions can be briefly set out as to assessment of discrimination claims. None of these issues were in dispute between the parties. First, the onus is on the applicant to make out the factual and legal claims of discrimination. Secondly, in determining whether discrimination had occurred, the question is why the respondent acted as it did on an objective basis. This involves the consideration of two separate questions. The first component is “differential treatment”, and the second component is “on the ground”. The two questions can be dealt with separately or together, depending on the particular circumstances of the case. Tribunals and courts have in some cases found it more appropriate to deal with the two questions together, particularly where there is the use of a hypothetical comparator for the purpose of determining “differential treatment”.

137. In order to establish direct discrimination falling within section 49J or 49M of the Act in the present case, it must be established that the TfNSW treated Ms Jimenez less favourably than in the same circumstances or in circumstances which are not materially different, TfNSW treated or would have treated a person who did not have Ms Jimenez's disability; (the differential treatment issue) and that differential treatment was on the ground of her disability; (the causation issue).

138. Where the comparator is hypothetical, the two questions as to “less favourable treatment” and “on the ground of disability” can be addressed as part of the same reasoning exercise. Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [65]; Peters v The University of Sydney [2015] NSWCATAD 238 at [52]-[58]. As explained by Mortimer J in Watts v Australian Post [2014] FCA 370; (2014) 222 FCR 220, “less favourable treatment” and because of disability are not two separate elements:

... the function of a comparator in the context of discrimination is to facilitate the isolation of the reason why the person was treated as he or she was: Purvis at [223] per Gummow, Hayne and Heydon JJ. By removing the nominated attribute but otherwise comparing how the aggrieved person was treated in comparison with another person in the same or similar circumstances, it is thought that the “real reason” for the person’s treatment more readily emerges. In the context of s 5(2)(b), it can be said that the “real effect” more readily emerges. This explanation in Purvis, combined with the particular language in s 5(2)(b), serves to highlight the overlap between “less favourable treatment “and “because of the disability” in s 5(2)(b). 

141. To undertake a valid comparison for the purposes of establishing direct discrimination, it is necessary to construct a hypothetical comparator to determine whether there has been less favourable treatment of the applicant, compared to a person without her disability, in the same circumstances or in circumstances that are not materially different relative to person without the applicants’ disability. In constructing a hypothetical comparator, the particular facts of the case, including the “objective features that surround the actual or intended treatment” must be taken into account: Purvis v State of New South Wales (2003) 217 CLR 92 (“Purvis”) at [222]-[225] (Gummow, Hayne and Heydon JJ).

142. In Purvis, the High Court stated that the question is why the aggrieved person was treated as they were: Gummow, Hayne and Heydon JJ at [223]. The focus is on the “true basis” or “genuine basis”: Gleeson J at [102], or the “real reason” for the treatment: McHugh and Kirby JJ at [144].

Suspension – 20 January 2023 and the Direction – 2 February 2023

143. On 22 December 2022 the respondent notified Ms Jimenez that her driver licence was to be suspended from 3 January 2023 pursuant to cl 65(1)(b) of the Regulation, with that date later extended to 20 January 2023.

144. The letter stated:

Unfortunately, in view of the medical advice from Transport for NSW’s medical advisor, it is considered that you are not medically fit to safely drive a motor vehicle. Accordingly there is no alternative but to suspend your driver licence …I regret that this action is necessary …

145. The reference to the “medical advice” and “medical advisor” was a report from Dr Sharpe dated 16 December 2022. Dr Sharpe identified Ms Jimenez’s medical condition as epilepsy. Dr Sharpe determined that Ms Jimenez was not medically fit to safely drive a motor vehicle not only because she had epilepsy but because he was concerned that Ms Jimenez may not be complying with a recommendation to take anti-convulsant medication and failing to take Dr Wardman’s advice to have a review with the Neurology Dpt at Westmead Hospital.

146. The Direction, issued on 2 February 2023 set out the observations made by Dr Sharpe in his third report dated 1 February 2023 and again set out the criteria that would have to be met before the suspension may be lifted. The Direction simply re-iterated the treatment of Ms Jimenez, which is the decision to suspend the drivers licence on condition of her complying with the criteria.

147. For Ms Jimenez to succeed in her claim, she had to prove that the respondent would not have suspended the hypothetical person’s licence in the same or similar circumstances.

148. We consider in this case, it is appropriate to consider a hypothetical person with a different disability to Ms Jimenez as we accept the unchallenged evidence of Mr Cheetham that the respondent has statutory obligations to ensure that all licence holders are medically fit and competent to drive. The applicant did not suggest that parts of the Regulation or the AFD Standards were themselves discriminatory or were applied in a discriminatory manner.

149. We find that the hypothetical comparator was:

1. a 62 year old woman,

2. with a licence issued since 1981, seeking to renew her licence;

3. who had a different disability to the applicant; and

4. who had provided medical information to TfNSW that it suspected was not consistent or accurate.

150. Mr Cheetham’s undisputed evidence was that the Suspension occurred because Ms Jimenez did not comply with the requirement to provide evidence regarding her medical fitness to drive.

151. Mr Cheetham’s evidence was that the respondent’s decisions were guided exclusively by the application of the relevant legislation and the AFD standards as well as the respondent’s overarching responsibility for road safety. Mr Cheetham's evidence at paragraph [104] was that he:

followed the advice and recommendations provided by experienced and independent medical practitioners and was guided by the risks associated with a person who may suffer epileptic seizures and who may not be taking prescribed anti-convulsant medication being permitted to drive on NSW roads potentially putting her and others in danger.

152. Where a person has been issued with a driver licence, the respondent has power to require the person to undergo a medical examination conducted under the AFD Standards, to produce evidence of compliance with the AFD Standards and to attend on a medical practitioner for an examination; cls 60(1) and (2) of the Regulation.

153. Pursuant to cl 60(1) of the Regulation, the respondent may require a holder of a driver licence to:

(c) to undergo a medical examination, conducted in accordance with Assessing Fitness to Drive, by a medical practitioner or allied professional practitioner, or produce evidence of compliance with the medical standards set out in that publication, to determine the holder's medical fitness to hold a driver licence, or a licence of a particular class, or

(d) to attend a specified medical practitioner or allied professional practitioner for the purpose of that examination.

154. Mr Cheetham’s evidence was that the respondent acted consistently with cl 60 of the Regulation.

155. While it is usual for a person to deny that they acted for a discriminatory purpose, it is insufficient to ground a discrimination claim on an applicant’s belief that they were discriminated against.

156. In cases where there is no direct evidence of discrimination, inferences may be drawn from the primary facts Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 at 84 to 91. However the applicant did not point to any evidence that would ground an inference that the respondent suspended Ms Jimenez’s driver licence because of the disability or why Mr Cheetham’s evidence should be rejected.

157. Based on Mr Cheetham’s undisputed evidence we find that Mr Cheetham in his role as Manager of the Licence Review Unit or another person empowered with authority would have considered whether a potential or suspected medical condition required assessment.

158. The person would have undertaken inquiries as to the medical fitness to drive consistent with the respondent’s statutory obligations. We consider that the hypothetical person would be assessed pursuant to the Regulation as to whether she was medically fit and competent to drive.

159. It follows, that the evidence in its totality does not satisfy the Tribunal that the respondent in making either the Suspension or the Direction decision acted on the ground of her disability.

160. The Tribunal makes the following orders:

1. Pursuant to s 103(1) of the Anti-Discrimination 1977 leave is granted to the applicant to amend her complaint and rely on section 49J of the Anti-Discrimination 1977.

2. The application is dismissed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar