Miller v Healius Pathology Pty Ltd t/a Laverty Pathology

Case • [2025] NSWCATAD 187
No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Miller v Healius Pathology Pty Ltd t/a Laverty Pathology [2025] NSWCATAD 187
Hearing dates: 11 June 2025
Submissions closed on 2 July 2025
Date of orders: 28 July 2025
Decision date: 28 July 2025
Jurisdiction:Administrative and Equal Opportunity Division
Before: J Smith, Senior Member
A Limbury, General Member
Decision:

(1)   An order is made to amend the name of the Respondent to Healius Pathology Pty Ltd t/a Laverty Pathology. If this is not the correct legal entity, the Respondent may apply, within 7 days of the date these reasons are published, for the correct respondent to be substituted.

(2) Pursuant to s 108(1)(a) of the Anti-Discrimination Act 1977 (NSW), the Tribunal dismisses the whole of the complaint.

Catchwords:

ANTI-DISCRIMINATION – disability discrimination – indirect and direct discrimination – provision of goods and services

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Work Health and Safety Act 2011 (NSW)

Cases Cited:

Bonella & Ors v Wollongong City Council [2001] NSWADT 194

Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5

El Kassir v Westpac Banking Corporation [2025] NSWCATAD 159

Kenworthy v Heartbeat Centre Coffs Harbour Limited [2025] NSWCATAD 133

Lonie v LiveBetter Services Limited [2023] NSWCATAD 60

Majoor v Macquarie University [2022] NSWCATAP 213

Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20

Purvis v State of New South Wales [2003] HCA 62

Vines v Djordjevitch (1955) 91 CLR 512

Waters v Public Transport Corporation [1991] HCA 49

Texts Cited:

None

Category:Principal judgment
Parties: Stephen Miller (Applicant)
Healius Pathology Pty Ltd t/a Laverty Pathology (Respondent)
Representation: P Waters (Agent) (Applicant)
Healius Pathology Pty Ltd t/a Laverty Pathology (Self-represented)
File Number(s): 2024/00228864
Publication restriction: None

REASONS FOR DECISION

Decision

  1. The Applicant alleges that the Respondent has unlawfully discriminated against the Applicant, on the grounds of disability, by treating the Applicant differently in the running of a queue system at one of its pathology collection centres, imposing a patient ban on the Applicant and not responding to the Applicant’s complaints in a timely manner.

  2. The Tribunal has dismissed the complaint in whole because the Tribunal has not substantiated that the Respondent directly or indirectly discriminated against the Applicant on the grounds of disability in the provision of goods and services.

Background

  1. In this matter, it is not disputed that the Applicant is a person with disability as he has diagnosed psychiatric and chronic health conditions which he takes medication for. The disability that the Applicant relies on in this matter is his diagnosis of Bipolar Affective Disorder.

  2. On 22 May 2023, the Applicant lodged a complaint with the President of Anti-Discrimination NSW against the Respondent. There were a number of aspects to this complaint, however as of 6 March 2024, the complaint was narrowed to a complaint of disability discrimination in the area of goods and services.

  3. The President’s Summary of Complaint notes that the Applicant alleges:

  1. The Applicant was attending one of the Respondent’s Laverty Pathology Collection Centres (“Collection Centre”) at least once a month for blood testing to monitor Lithium toxicity.

  2. Due to the Applicant’s disability, change is very difficult for him. When the Applicant attends the Collection Centre, he is quite anxious and distressed due to being unmedicated. The Applicant has to fast before having blood collected and cannot eat for an hour after that.

  3. The Collection Centre is convenient for the Applicant due to the location and because it opens quite early, which means he can eat and drink earlier in the day after having blood collected.

  4. On two occasions when the Applicant attended the Collection Centre, the numbering system for persons attending the Collection Centre was not adhered to.

  5. The Applicant lodged a complaint with the Respondent about the situation of the numbering system.

  6. On 29 March 2023, the Applicant received an acknowledgement from the Respondent thanking him for his feedback and was advised that the complaint would be forwarded to the Area Coordinator and Area Manager. The Applicant did not receive a response to a second and third email he sent to the Respondent to follow up on his complaint.

  7. The Applicant alleges that an individual worker, a Collector/Phlebotomist at the Collection Centre (“the Collector”), is quite aware of the Applicant’s mental health issues and situation and deliberately does it (not adhere to the numbering system) to antagonise him knowing that the Applicant is not medicated.

  8. On 17 April 2023, the last occasion that the Applicant attended the Collection Centre for blood collection, the Collector “berated” the Applicant for providing feedback. The Applicant became “highly agitated” and “used an expletive” in his response. The Collector told the Applicant that he was not welcome to come back to the Collection Centre.

  9. The Collector contacted the Applicant’s doctor. The Applicant’s doctor advised the Applicant to go to another collection centre.

  10. As the Applicant did not receive a response from the Respondent to his complaint, the Applicant lodged a complaint with Anti-Discrimination NSW.

  1. On 13 November 2023, the Respondent replied to the allegations that the President had notified the Respondent of, by:

  1. Acknowledging and apologising for not responding to the Applicant’s second and third complaint in a timely manner and advising that the employee in question had been counselled.

  2. Stating that they were not aware of the Applicant’s disability nor of any medication requirements.

  3. Stating that they were willing to work with the Applicant in looking at alternate arrangements to presenting at the Collection Centre.

  4. Apologising if the Applicant felt he was discriminated against in any way, however noted that their actions were based upon the Applicant’s behaviour and their responsibilities towards staff, patients and their carers rather than on prejudice.

  1. On 6 March 2024, after the matter did not resolve at a conciliation conference, the Applicant requested that his complaint be referred to the Tribunal.

  2. In the Applicant’s Points of Claim, he sought a Statement of Regret from the Respondent to include:

  1. Acknowledgement of wrongdoing

  2. Acknowledgement that the response to the breaches were harmful and unprofessional

  3. A statement confirming that the Respondent will make adjustments to their responses when an incident occurs

  4. A statement confirming that the Respondent will take measures to train their staff to improve their bedside manner and general conduct.

  1. The Applicant also seeks compensation, including $9,096.85 for medical costs and $16,750 for support worker attendance and psychology sessions that are expected to be diverted from his National Disability Insurance Scheme (NDIS) Plan. The Applicant contends that since these incidents, he has suffered symptoms of anxiety, panic attacks, agoraphobia, and avoidance behaviour. The Applicant states that he was not able to walk past a Laverty Pathology office without experiencing intense anxiety. The Applicant also states that even seeing a Laverty Pathology courier car on the road would exacerbate his anxiety. The Applicant’s doctor concluded on 25 July 2024, after a number of consultations with the Applicant, that he was suffering from an adjustment disorder with mixed disturbance of emotions and conduct, with chronic symptoms of anxiety, agoraphobia and hypervigilance.

  2. On 10 June 2025, with the Tribunal satisfied that it had jurisdiction, a final hearing was held. The Applicant and two of the Respondent’s witnesses (the Collector (now retired) and a Quality Manager) were cross-examined. As there was not sufficient time for final oral submissions to be made during the hearing, the Tribunal directed that final written submissions by both parties be filed. The Tribunal also directed that the Respondent file records of the three complaints that the Applicant had made and the record of the Applicant’s testing at the Collection Centre on 17 April 2023.

Relevant law

Disability discrimination

  1. As recognised by the High Court and this Tribunal, disability discrimination differs from other forms of discrimination such as sex, race and age as it gives attention to the admitted difference. The focus is not on equal treatment but on recognising that there may be a need to do something different so that the person with the disability can be treated the same as everybody else: Purvis v State of New South Wales [2003] HCA 62, [198]-[203], [207]; Lonie v LiveBetter Services Limited [2023] NSWCATAD 60, [8].

  2. Part 4A of the Anti-Discrimination Act 1977 (NSW) (ADA) covers discrimination on the ground of disability. A reference in Part 4A to a person’s disability includes a reference to a disability that the person has (ADA, s 49A(a)).

  3. Pursuant to s 49B(1) of the ADA, a person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if the perpetrator:

  1. 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 (direct discrimination), or

  2. requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply (indirect discrimination).

  1. Something is done on the ground of a person’s disability if it is done on the ground of the person’s disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability (ADA, s 49B(2)).

  2. The applicant bears the onus of proof “on the balance of probabilities” in both direct and indirect discrimination complaints. An applicant must prove each element of their claim: Majoor v Macquarie University [2022] NSWCATAP 213, [26].

Direct discrimination

  1. The test for direct discrimination requires the satisfaction of two elements - differential treatment and causation.

  2. 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: Purvis, [224].

  3. The words “less favourable” require that there be two situations or sets of circumstances, the actual and the hypothesised, so that it can be determined by a comparison whether treatment in the former is "less favourable" than in the latter: Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5, [46].

  4. In Purvis, the High Court held that the test for causation is to ask why the complainant was treated as they were. Gleeson CJ dealt with the causation element of direct discrimination by referring to it as the “true basis” for the treatment (Purvis, [157]).

  5. The Appeal Panel in Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 considered what ‘on the grounds’ meant in a complaint of race discrimination and victimisation under the ADA. At [36]-[37] the Appeal Panel stated that for complaints of discrimination, for that to be the case, the reason must have been a reason which, either alone or in combination with other reasons, was the true basis for the treatment. Depending on the circumstances, the motive and purpose of the alleged discriminator, as well as the effect on the aggrieved person, may all be relevant. Whether or not the reason was substantial or insubstantial is not the point. The inquiry must focus on whether the reason contributed to the decision, that is, whether it was one of the real, genuine or true reasons for the decision.

Indirect discrimination

  1. The phrase “requirement or condition” is not defined in the ADA. The High Court has held, in the context of providing goods or services, a person should be regarded as imposing a “requirement or condition” when that person intimates, expressly or inferentially, that some stipulation or set of circumstances must be obeyed or endured if those goods and services are to be acquired, used or enjoyed: Waters v Public Transport Corporation [1991] HCA 49, [21].

  2. The onus of proving that a requirement or condition was not reasonable lies on the complainant: Waters, [33]; Vines v Djordjevitch (1955) 91 CLR 512, 519-520.

  3. In order to establish indirect discrimination, the complainant needs to show that a substantially higher proportion of people who do not have the complainant's status, comply or are able to comply with the alleged requirement or condition. To undertake that comparison, it is necessary to “carefully select the base group or pool” which is to be used for the purpose of contrasting compliance with the requirement or condition. The pool is all of the people to whom the challenged requirement or condition is applied or is potentially applied: Bonella & Ors v Wollongong City Council [2001] NSWADT 194, [77].

Disability discrimination in the provision of goods or services

  1. Section 49M(1) of the ADA states that 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:

  1. by refusing to provide the person with those goods or services, or

  2. in the terms on which he or she provides the person with those goods or services.

Material before the Tribunal

  1. The following documents were before the Tribunal in the hearing:

  1. President’s Summary of Complaint received by the Tribunal on 21 May 2025 (Exhibit A1).

  2. Bundle of documents filed by the Applicant on 26 July 2024 (Exhibit A2).

  3. Bundle of documents, including submissions filed by the Applicant on 16 October 2024 (Exhibit A3).

  4. Bundle of documents, including submissions, filed by the Applicant on 23 October 2024 (Exhibit A4).

  5. Bundle of documents, including Applicant’s Points of Claim, filed by the Applicant on 12 December 2024 (Exhibit A5).

  6. Points of Defence filed by the Respondent on 11 February 2025 (Exhibit R1).

  7. Statement of former Collector/Phlebotomist filed by the Respondent on 11 February 2025 (Exhibit R2).

  8. Statement of Quality Manager filed by the Respondent on 11 February 2025 (Exhibit R3).

  9. Submissions of the Respondent field on 11 February 2025 (Exhibit R4).

  1. After the hearing, the following documents were filed in compliance with the Tribunal’s directions:

  1. Laverty Pathology results for the Applicant, for collection date of 17 April 2023

  2. Respondent’s records of complaints made by the Applicant on 29 March 2023, 11 April 2023, and 1 May 2023.

  3. Submissions of the Applicant filed on 20 June 2025

  4. Submissions of the Respondent filed on 2 July 2025.

Evidence of alleged discrimination

  1. The following matters form the basis of the Applicant’s disability discrimination complaint:

  1. The three incidents that occurred at the Collection Centre on 25 January 2023, 29 March 2023 and 17 April 2023, and how the queue system at the Collection Centre operated on these dates

  2. The patient ban following the incident on 17 April 2023

  3. The Respondent’s response to the online complaints made by the Applicant in relation to the subject incidents.

  1. The Respondent has raised as an issue that it was not aware of the Applicant’s disability.

  2. The evidence and the Tribunal’s factual findings in relation to each of these matters are outlined below.

Incident on 25 January 2023

Applicant’s evidence and submissions

  1. The Applicant stated that he attended the Collection Centre at about 6:20am before it opened at 6:30am. There were four or five people queuing, with the Applicant third or fourth in line. The Applicant stated that he took a seat after entering the Collection Centre which has a small waiting room.

  2. The Applicant stated that the numbering/ticket system was not in place at the Collection Centre.

  3. The Collector said “who was next” when it was the Applicant’s turn. Another person stood up, which caused the Applicant to have to speak up about his place in the queue. The Applicant recalled that he said, “sorry mate, it’s my go”. The Applicant then went into the collection room for blood collection.

  4. During cross-examination, the Applicant stated that he prefers the 6:30am start time at the Collection Centre as he is unmedicated and needs a coffee to get “kick-started”. The Applicant stated that he is a “bit agitated” without his morning coffee. The Applicant described the situation of not having had his medication and not having had his morning coffee as the “perfect storm”.

Respondent’s evidence and submissions

  1. On 25 January 2023, the Collector recalled that the Applicant was in the waiting room and there was a man sitting next to him with a boy of about 10 years of age. On this occasion, as the Collector had been in the collection room checking patient details were correct, he was not sure who was next. The Collector recalled that he smiled and said words to the effect, “OK, who’s next?”

  2. The Collector recalled that the man sitting with the boy started to move to give the Collector his paperwork. The Collector stated that the Applicant “scowled and snapped in an aggressive tone “I’m next””. The Collector replied by saying sorry to the Applicant followed by “in you go”. The Collector stated that the collection then went as usual. After the collection, the Applicant left the collection room and did not say anything to the Collector, however the Collector overheard the Applicant stating to the man and the boys: “I am sorry that I snapped. I am always grumpy until I get my first cup of coffee”.

  3. Records provided by the Respondent show that the Applicant attended the Collection Centre on 25 January 2023 with the time of collection recorded as 6:50am.

Factual findings

  1. It is agreed that on 25 January 2023, although another patient had stood up when the Collector asked who was next, the Applicant was taken into the collection room in the correct order. The Laverty Pathology Report confirms that the Applicant’s blood was collected 20 minutes after the Collection Centre’s opening time, which appears consistent with the Applicant being the third patient in line, noting that there was only one staff member (the female phlebotomist) collecting blood while the Collector managed the patients arriving and took their paperwork.

  2. The Applicant conceded that he is a “bit agitated” without his medication and morning coffee.

Incident on 29 March 2023

Applicant’s evidence and submissions

  1. The Applicant stated that what happened on 25 January 2023 occurred again on 29 March 2023. The Applicant stated that he “once again got skipped” by the Collector. The Applicant recalled that he politely said “excuse me it’s my turn” before being taken in for blood collection.

  2. The Applicant submitted a complaint about what happened to the Respondent on this date via the Respondent’s website. The complaint stated:

“Please ask staff to reinstate ‘take a number’ system as on the last 2 occasions I’ve attended my turn has come around and someone else has stood up to be served. I have spoken up and kept my place but appear antagonistic making me and the other person feel uncomfortable. I wonder weather [sic] the staff even believe me and apart from feeling embarrassed, I can feel my already high blood pressure spike.”

Respondent’s evidence and submissions

  1. The Respondent’s records confirm that the Applicant attended on 29 March 2023 with the time of collection recorded as 6:45am.

  2. The Collector, in his statement and during cross-examination, described events that he recalled as having occurred on 29 March 2023, when what he recalled corresponds with other evidence about what happened on 17 April 2023, rather than 29 March 2023. When this was put to the Collector during cross-examination, the Collector maintained his recollection of what occurred, however noted that he was now retired and deferred to the Respondent’s record system and the Quality Manager’s evidence, which was based on the Respondent’s record system, in terms of the dates of the relevant events. This is the reason for the Tribunal making directions for the Applicant to file further records after the hearing. The Respondent’s records of the Applicant attending the Collection Centre for blood collection, align with the Applicant’s recollection of dates and the type of testing that occurred. This evidence is therefore referred to below as part of the evidence about what occurred on 17 April 2023.

Factual findings

  1. The Tribunal accepts the Applicant’s evidence of what occurred on 29 March 2023 when he attended the Collection Centre, supported by the complaint he made on 29 March 2023, that someone else had stood up when it was the Applicant’s turn to go into the collection room.

  2. Given the other corroborative evidence, the Tribunal has treated the Collector’s memory of what he recalls as having occurred on 17 April 2023, as actually having occurred on 29 March 2023. The Tribunal accepts this as an error in the Collector’s recollection of the date but does not count this against the Collector’s credibility in terms of his recollection of what occurred during the relevant incidents which was largely similar to the Applicant’s evidence.

  3. It is agreed that the Applicant was taken into the collection room in the correct order. This is supported by the Laverty Pathology Report for testing on 29 March 2023, which confirms that the Applicant’s blood was collected 15 minutes after the Collection Centre’s opening time.

Incident on 17 April 2023

Applicant’s evidence and submissions

  1. The Applicant stated that he attended the Collection Centre for blood collection and the Collector directed the Applicant to the collection room when it was the Applicant’s turn. Once in the collection room, with the door to the waiting room open, the Collector checked the Applicant’s details on the vials. The Applicant stated that while he was getting his blood drawn, he was “confronted” by the Collector who spoke to the Applicant about the complaint he had made. The Applicant recalled that the Collector said “If you’ve got something to say about us, say it to us, don’t use contact. The regional manager has come down on us and it would be best if you don’t come back here”.

  2. The Applicant said that he told the Collector that he had spoken to him on two previous occasions where the Collector had lost count of which patient was to proceed next. The Applicant admitted to stating to the Collector: “This situation would not have happened if you had not done your fucking job”.

  3. The Applicant stated that the Collector responded by noting that there was a young girl in the waiting room.

  4. During cross-examination, the Applicant stated that it was a “very uncomfortable situation” and the “poor girl taking my blood didn’t know what to do”.

  5. The Applicant stated that the Collector provided “further remarks” and then the Applicant left the Collection Centre.

  6. During cross-examination, the Applicant conceded that it was likely that the persons in the waiting room would have heard him swearing.

Respondent’s evidence and submissions

  1. The Collector recalled that on this day (which the Tribunal is taking to be what occurred on 17 April 2023 for the reasons noted above), the Applicant came into the waiting room and there was nobody in front of him. The Collector stated that the Applicant went straight into the collection room. The Collector followed the Applicant with his paperwork and labels and shut the door and sat down.

  2. The Collector stated that the female phlebotomist started performing the Applicant’s blood collection. The Collector stated that he said to the Applicant nicely, “can you do me a favour”. The Collector stated that the Applicant “snapped aggressively” and said “what?!”. The Collector stated that he said, “If you have any issue with me or […], I would appreciate it if you spoke to us directly rather than going online to make a complaint”. The Collector stated that the Applicant “said angrily” that he was going to make a complaint again. The Collector stated that he held his hand up and said, “you can do whatever you want”. The Collector then got up, opened the door and started walking out. The Collector stated that he could see that a woman and young child were now in the waiting room and the Applicant “shouted very aggressively” “If you would just do your fucking job!”.

  3. The Collector stated that he turned around and went back into the room and said to the Applicant words to the effect of “get out and don’t come back if you are going to swear and yell in front of women and children”. The Collector then rang a manager to inform her of what happened and that the Applicant had threatened to make a further complaint. The Collector stated that the phlebotomist said “I am frightened of him. I don’t want him here”.

  4. The Collector stated that in the circumstances, the Area Manager directed him to ring the Applicant’s doctor, explain the situation and ask that the Applicant no longer attends the Collection Centre. The Collector stated that he contacted the Applicant’s doctor and spoke to him. The Collector stated that the Applicant’s doctor said words to the effect of “We don’t put up with that kind of conduct either”. The doctor said that he would speak to the Applicant and “let him know Laverty’s decision that he can no longer attend that particular collection room”. The Collector stated that he felt that the Applicant’s doctor was “very understanding and supportive of our position”.

  5. The Respondent’s records confirms that the Applicant attended the Collection Centre on 17 April 2023 with the time of collection recorded as 6:50am.

  6. On 22 April 2023, the Applicant sent a message to the Respondent via its website with the title: “Professional conduct, equity, privacy”. In the message the Applicant described what had happened at the Collection Centre on 17 April 2023. The Applicant stated that the Collector’s actions had “elevated my medical conditions and I’d lost my cool, which I apologise for”. The Applicant noted that when he was leaving the Collection Centre, the Collector had said something else to him that he could not quite recall but it included the statement “we’ve always bent over backwards for you”.

Factual findings

  1. It was an undisputed fact that when the Applicant attended the Collection Centre on 17 April 2023, no other patient attempted to ‘skip the queue’ and the Applicant was taken into the collection room in order.

  2. The Tribunal accepts that there was a discussion between the Collector and the Applicant about the online complaint the Applicant had made. It was an undisputed fact that during this conversation, the Applicant swore in the presence of both the Collector and the female phlebotomist.

  3. The Collector said that the door to the collection room was initially closed while the Applicant was having his blood collected. The Applicant said that it remained opened. Although there is a dispute about whether the door was initially opened, it is undisputed that the point at which the Applicant swore, the door was open and there was a parent and child in the waiting room. The Applicant conceded that it was likely that the persons in the waiting room would have heard him swearing. The Tribunal finds that given the small size and configuration of the Collection Centre, and the fact that the door to the collection room was open to the waiting room at the time of the Applicant swearing, it is likely that the parent and child would have heard the Applicant swearing.

  4. The Applicant admitted in his online communication to the Respondent that the incident “elevated my medical conditions and I’d lost my cool, which I apologise for.” As noted above, the Applicant conceded that he is a bit agitated when he is not medicated and when he has not had his morning coffee, and that this situation can lead to the “perfect storm”. The Collector’s evidence was that the Applicant was acting aggressively and shouted very aggressively and that the female phlebotomist was frightened and said that she did not want the Applicant at the Collection Centre. The Applicant observed that it was a very uncomfortable situation and the female phlebotomist (“the poor girl”) did not know what to do with herself. This caused a call to be made by the Collector to the Area Manager who directed the staff to contact the Applicant’s doctor.

  5. The Tribunal finds that it is likely that the Applicant acted aggressively while swearing in the presence of the Collector and the female phlebotomist on 17 April 2023.

Other incident

  1. The Collector recalled that the Applicant had attended the Collection Centre on 17 April 2023 but recalled a different factual scenario to what the Tribunal has taken to have occurred on 17 April 2023. For the same reasons that the Tribunal has treated the Collector’s evidence of the events of 29 March 2023 as having occurred on 17 April 2023, the Tribunal has treated the Collector’s recollection of what occurred on 17 April 2023, as having occurred on another date. There was no record based on a Laverty Pathology report before the Tribunal of the Applicant having his blood collected after 17 April 2023.

  2. The Collector recalled that the Applicant attended the Collection Centre early on this day, and there were a couple of people in the waiting room. The Collector recalled that the Applicant had said hello to him and that this was unusual. The Collector stated that the Applicant had never greeted him or addressed him politely before.

  3. The Collector stated that he asked the Applicant whether he had spoken to his doctor recently. The Collector stated that the Applicant’s “polite demeanour dropped and he snapped at me “Yes!””.

  4. The Collector stated that he advised the Applicant that he had telephoned the Applicant’s doctor at his manager’s request, and that the doctor was aware of the situation. The Collector recalled stating, “You have been online and made complaints about us. Last time you were here would [sic] were yelling and swearing in front of women and children and the female staff are frightened of you. You are not welcome here anymore”. The Collector stated that he then got the Applicant’s paperwork and said, “As a matter of fact, you can take this and go elsewhere”. The Collector stated that the Applicant said nothing, took the paperwork and walked out without saying anything. The Collector stated that this was “the last I ever saw of him”. During cross-examination, the Collector said that the Applicant “only got as far as the front door”.

  5. As this event does not fall within the scope of the Applicant’s complaint, and there is no other record to verify that the Applicant attended the Collection Centre on this date, likely because he did not undergo any testing, the Tribunal does not make any factual findings about this incident.

Queue system

Applicant’s evidence and submissions

  1. The Applicant stated that other people in the queue were being acknowledged and being asked to come in, in the order in which they arrived. The Applicant stated that other people did not have the experience which he did, of not going in, in order. The Applicant stated that he felt he was being treated differently in this regard, and he was “second rate” to the other people that were waiting at the Collection Centre.

  2. The Applicant stated that he was made to feel inferior and different from others when other people were brought into the waiting room and taken in order. The Applicant stated that due to his diagnosis of Bipolar Disorder, this was a situation that he could not handle very well.

  3. The Applicant, in his online complaint to the Respondent after the incident on 29 March 2023, asked that the numbering system be “reinstated”.

Respondent’s evidence and submissions

  1. The Collector stated that the Collection Centre was small with four chairs in the waiting room, a small reception desk and two collection rooms (with only one of the collection rooms used at a time). The Collector said that the waiting room is so small that the patient’s sitting opposite each other almost have their knees touching.

  2. The Collector stated that there is a numbering system available for use at the Collection Centre. Patients are supposed to take a number so that they are seen in order of arrival. However, given that it is such a small waiting room at the Collection Centre and the Collector spends much of his time at the reception desk, the Collector usually knows who is next. The Collector said that sometimes patients forget to take a number and don’t know to take a number. The Collector stated that he ensures that patients are seen in order of arrival and he often would say to patients, words to the effect of “Don’t worry about a number, I know you are next”.

  3. During cross-examination, the Collector stated that the numbering system was not being used at the time at the Collection Centre as it created confusion. The Collector said that not everyone would take a number, which meant that a person who took a number was not necessarily next in order, over someone who had come in earlier and not taken a number. The Collector stated that as people come in, he takes their forms to keep them in order. The Collector said that the numbering system was more of a tool to assist collection staff if they wish, but it was hard to police and did not work at the Collection Centre which had a tiny waiting room. The Collector said that the numbering system worked well in bigger waiting rooms where there are 20 seats in a waiting room.

  4. The Quality Manager stated that Laverty Pathology collection rooms operate on a queue basis. The Quality Manager stated that in most rooms there are numbers that patients can take so that they can demonstrate the position they have in the queue. The Quality Manager stated that whether there is a numbering system or not, or whether patients are using the numbering system or not, collectors see patients in the order of arrival. The Quality Manager stated that necessarily, given the numbering system is not always used or in place, patients need to have “some honesty in relation to the queue process, like people must do in any queue”. The Quality Manager stated that the numbering system is not mandated to be used.

Factual findings

  1. It was an undisputed fact that the numbering system was not in operation at the Collection Centre at the time of the three incidents that form the basis of the Applicant’s complaint.

  2. The Tribunal accepts the Respondent’s evidence that the queue system used at the Collection Centre was one that was the most practical for the two staff to manage in the circumstances with the size of the waiting room. The Tribunal accepts that the reason that the numbering system was not used was because it was not practical or effective, and it otherwise was not mandatory. The Tribunal does not accept that reason for the queue system, or the reason the numbering system was not being used, at the Collection Centre, was related to the Applicant.

  3. Even if the numbering system was put in place at the Collection Centre, given the difficulties identified by the Respondent about the operation of the numbering system, the Tribunal is not satisfied that this would ensure that patients were taken into the collection centre in the order they arrived.

  4. Although on 25 January 2023 and 29 March 2023, another patient sought to go in before the Applicant, the Applicant was taken in for blood collection in the order he had arrived in the queue. On 17 April 2023, the Applicant did not complain of another person seeking to take his spot in the queue, and he was taken in for blood collection in the correct order. On all three occasions, the Applicant was seen in the order of his arrival at the Collection Centre. This is undisputed and the Tribunal finds this as a fact.

  5. According to the testing records, the Applicant had his blood collected within 20 minutes of opening time on all three dates, which indicates that his blood collections were done shortly after he arrived if he arrived at or soon after opening time. This would indicate that the system that the Collection Centre had in place for taking patients in for testing was reasonably efficient, or at least consistent in terms of waiting times, for the times that the Applicant attended.

  6. There is no evidence to suggest, and the Tribunal is not satisfied, that the Applicant was treated differently to the other persons waiting in the queue at the Collection Centre. All the persons in the queue were subject to the numbering system not being used and the Collector monitoring and ensuring that people were taken in for collection in the correct order.

Patient ban

Applicant’s evidence and submissions

  1. As noted above, after the incident on 17 April 2023, the Collector contacted the Applicant’s doctor and informed the doctor that the Applicant would need to attend another Collection Centre. The Applicant submits that the patient ban and the subsequent requirement that the Applicant only attend the Collection Centre with a support person was discriminatory.

  2. As noted above, on 22 April 2023, the Applicant sent a message to the Respondent via its website with the title: “Professional conduct, equity, privacy”. In the message the Applicant, amongst other matters stated that he wanted to speak to the Regional Manager, and he wanted to discuss the situation at the Collection Centre as it was the only location that adequately met his needs and Laverty Pathology was his preferred provider for these services.

  3. In the Applicant’s complaint that he made to the Respondent on 1 May 2023, he stated he wanted to attend the Collection Centre for testing, however “the problem is that the staff member there was antagonistic towards me the last time I attended then he rang my doctor and said I should go elsewhere”.

  4. The Applicant submitted that he prefers to attend the Collection Centre due to the distance, time of opening, and the ability for him to be able to then take medication, eat and drink coffee earlier in the day, which assists him with his diagnosed conditions.

  5. The Applicant stated that he does not have an informal support person such as a family member or friend who is able to attend the Collection Centre with him, and that he therefore would have to arrange for a NDIS support worker to attend with him.

  6. The Applicant stated that, at the time of the hearing, he was in a better mental state. The Applicant stated that he had attended other pathology centres (other than Laverty Pathology centres) since the incidents.

Respondent’s evidence and submissions

  1. On 13 December 2023, the Quality Manager advised Anti-Discrimination NSW that rather than a patient ban from the Collection Centre, the Respondent was proposing that the Applicant could attend the Collection Centre accompanied by a support person. It was suggested that this be someone who knows the Applicant well and can help him manage and assist if required, such as a parent/friend/carer. The Quality Manager noted that in the absence of a support person, then the Respondent would not be able to provide the collection service to the Applicant.

  2. The Quality Manager stated that she is often involved in patient incidents, including when patients and the Respondent’s staff have been confronted by aggressive patients. The Quality Manager stated that the Respondent’s response to these incidents is consistent in terms of aggressive patients being banned. The Quality Manager stated that in some cases, this will be a ban from a specific collection centre, in other cases, the ban can apply to all Laverty Pathology collection centres.

  1. The Quality Manager gave evidence in relation to eight patient bans imposed by the Respondent on patients between October 2021 and January 2025 for threatening, sexually inappropriate, swearing, and abusive behaviour. The most recent ban was after a patient banged loudly on the collection room door as they were unhappy with the time they had been waiting and shouted at the collector.

  2. The Quality Manager also stated that when a patient has been banned due to aggressive behaviour, the patient’s doctor is called instead of the patient.

  3. The Respondent submits that its response to the Applicant’s conduct was no different to the way it has treated other aggressive patients in the past and was in fact more lenient with the Applicant than the majority of other aggressive patients. The Respondent submits that it has an obligation as an employer to look after the wellbeing of its staff and patients who attend the Collection Centre. The Respondent submits that this includes the primary duty of care referred to in s 19 of the Work Health and Safety Act 2011 (NSW), which provides that a person conducting a business must ensure, as far as reasonably practicable, the health and safety of workers, and other persons is not put at risk from work carried out as part of the conduct of the business.

  4. The Respondent submitted that the closest Laverty Pathology collection centre to the Collection Centre was 8km away, and there were 13 collection rooms operated by various providers within a 4km radius of the Collection Centre. The Respondent submitted that these collection rooms have reasonably early opening hours including five that open 30 minutes later that the Collection Centre.

  5. The Respondent submitted that many of the Applicant’s tests were lithium tests which do not require fasting. The Respondent submitted that it was not onerous for the Applicant to wait until later in the morning, if he were to attend other collection centres. The Collector stated that the Collection Centre used to open at 8:00am, however this changed in 2020 to open at 6:30am. The Respondent submitted that the Applicant was able to wait until at least 8:00am for his lithium blood test at the Collection Centre prior to 2020. This was supported by records of the Applicant’s testing which were included in the Respondent’s material. The Applicant’s testing history also showed that he had attended Laverty Pathology collection centres other than the Collection Centre during and after 2020 at later opening times.

Factual findings

  1. It was an undisputed fact that the patient ban was put in place by the Respondent after the incident of 17 April 2023, prohibiting the Applicant from attending the Collection Centre. Less than seven months after the ban was put in place, the Respondent allowed the Applicant to continue attending the Collection Centre for testing, but only with the presence of a support person to help the Applicant manage if required.

  2. The Tribunal is satisfied that the requirement of the patient ban is a reasonable response open to the Respondent to ensure the health and safety of patients and staff in a setting where aggressive behaviour cannot be tolerated. Aggressive or violent or other unacceptable behaviour while the collection of blood and the administration of other medical testing is occurring, places patients and staff at risk of harm. The Respondent has a duty of care to the patients that attend its collection centres for testing to ensure their health and safety is not put at risk while they are at the Collection Centre, and to protect them from any foreseeable risk or unsafe behaviour that might cause harm.

  3. The Tribunal is satisfied that the practice of imposing a patient ban is a practice that the Applicant has instituted for any person demonstrating aggressive or other forms of unacceptable behaviour. All the other eight bans on patients between October 2021 and January 2025 were bans from attending all Laverty Pathology collection centres, rather than a ban for a specific location.

  4. The Tribunal is not satisfied that the reason for the patient ban was because of the Applicant’s disability or because the Applicant was a person with disability. In relation to the patient ban, the Tribunal accepts that the reason for the ban was in response to the Applicant’s behaviour which was not tolerated at the Collection Centre for the protection of the female staff (who indicated fear of the Applicant after the incident on 17 April 2023 and a request that the Applicant no longer attend the Collection Centre) and other patients, including children. The Tribunal accepts that the Collection Centre is a small area with only two staff, which makes the staff and patients particularly susceptible to any aggressive or unacceptable behaviour by a person in the building.

  5. Given the history of the Applicant’s voluntary attendance at other Laverty Pathology collection centres which have later opening times (8:00am) , as well as the Applicant’s evidence that he had attended collection centres with other providers since the patient ban, the Tribunal is satisfied that the Applicant is able to comply with the patient ban.

  6. The Applicant stated that he was attending the Collection Centre about once a month. According to the Respondent’s test records, the Applicant was usually able to have his blood collected within 20 minutes of arrival after the 6:30am opening time. The Collection Centre is also close in proximity to the Applicant’s residence. While this might result in some of the Applicant’s NDIS funds being diverted for this purpose, the Tribunal is satisfied that if the Applicant did not want to attend another collection centre in the area which was also a reasonable alternative, the Applicant would be able to comply with the condition of attending the Collection Centre with a support person. The Tribunal is of the view that the presence of a NDIS support person or a support person was a reasonable requirement to address the Respondent’s duty to protect its staff and other patients, while allowing the Applicant to attend the Collection Centre. If the Applicant was to attend without issue, it is open to the Respondent to review its patient ban, as it did in December 2023, and remove this requirement.

Respondent’s knowledge of the Applicant’s disability

Applicant’s evidence and submissions

  1. The Applicant submits that the Respondent was aware of his disability due to the frequency of his visits to the Collection Centre and having been a patient of the Collection Centre for approximately eight years. The Applicant also submits that the Collection Centre held a special exemption for the Applicant to have therapeutic drug level monitoring on a monthly basis.

Respondent’s evidence and submissions

  1. The Collector estimated that the Applicant had been attending the Collection Centre since it opened in 2017 and prior to that, the Applicant attended the previous site, two doors away for some time. The Collector estimated that the Applicant had been a regular patient for about 10 years.

  2. The Collector stated that he was not aware that the Applicant had a disability. The Collector stated that he knew that the Applicant had a Medicare related form, what is known as a “Rule 3 exemption” which meant that he did not need a new request from a requesting doctor each time he needed a test. The Collector said that this is not unusual and can be issued for many reasons and a large range of tests. The Collector stated that he knew that the Applicant had regular testing for lithium, which the Collector knew was a mood stabiliser. The Collector stated that it was his understanding that lithium testing did not require the person to fast. The Collector stated that he did not know anything further about what condition the Applicant’s doctor was treating.

  3. The Collector stated that collectors do not have access to the patient’s medical history like a doctor does, nor do they know what conditions the patient has. The Collector stated that collectors look at the doctor’s request form and know what is required to collect for the sample for the test, including what vials to use and what volume to collect. The Collector stated that a collector’s job is to collect the sample by using proper techniques to do so, prepare labels including paperwork, use a centrifuge to spin/separate the specimen and get it ready for courier pick up to take to the laboratory for testing, and report to the requesting doctor.

  4. The Collector stated that in summary, the Applicant was a difficult patient in that he appeared to be “moody, rude, angry and even aggressive at times”. During cross-examination, the Collector stated that he did not know why the Applicant came in early. The Collector confirmed that he knew that the medication that the Applicant was on was a mood stabiliser. The Collector stated that the Applicant was “never the friendliest” and that he was “cranky, moody and demanding”. The Collector stated that he always tries to accommodate all patients and, despite challenges, always responds in a polite and professional manner. The Collector contended that he has always treated the Applicant with respect, despite the Applicant’s “constant rudeness”.

  5. The Quality Manager stated that collectors employed by the Respondent do not have medical training like a medical practitioner or general practitioner must have. The Quality Manager stated that usually a pathology collector must demonstrate experience and knowledge in phlebotomy or have a Certificate III in Pathology Collection or have a healthcare background.

Factual findings

  1. The Tribunal accepts that the Collector was aware that the Applicant was on a mood stabiliser. However, there was no evidence before the Tribunal, other than the Applicant’s contention, that the Collector was aware that the Applicant was a person with disability or was aware of any of the Applicant’s diagnosed conditions. The Tribunal is therefore not satisfied that the Respondent had knowledge that the Applicant was a person with disability.

Timeliness of complaint

  1. It was an undisputed fact that the Respondent had not responded to the Applicant’s complaints in a timely manner The Tribunal accepts the Respondent’s concession that the reason for the delay was an internal administrative error for which the relevant staff was counselled. The Tribunal is not satisfied that the delay in responding to the Applicant’s complaint was related to the Applicant’s disability.

Consideration

  1. The Applicant did not articulate whether his complaint was a complaint of direct or indirect discrimination. The Tribunal has therefore assessed both forms of discrimination.

  2. For the Tribunal to substantiate the Applicant’s complaint in whole or in part, the Applicant has to establish that:

  1. On the ground of the Applicant’s disability, the Respondent treated the Applicant less favourably than in the same circumstances, or in circumstances which are not materially different, the Applicant treats or would treat a person who does not have that disability (direct discrimination), or

  2. The Respondent required the Applicant to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case with which the Applicant does not or is not able to comply (indirect discrimination).

  1. There is no comparator in this case. It is not known, and it cannot be known due to privacy reasons and this information not being available to the Respondent, whether the other persons attending the Collection Centre have disability. The Applicant has not identified any specific person or class of persons, who do not have disability, that the Respondent has treated differently to him.

  2. Where the comparator is hypothetical, the question for the Tribunal, as the High Court stated in Purvis, is why the aggrieved person was treated as they were.

  3. The Tribunal has found that the Respondent did not treat the Applicant differently to other patients in any of the three incidents or by the operation of the queue system. The Tribunal has found that the Respondent did not treat the Applicant differently to other patients that demonstrate aggressive or unacceptable behaviour by imposing a patient ban. Although the Applicant was likely aggressive on 17 April 2023, and the Tribunal has found this as a fact, the Respondent has actually treated the Respondent more favourably than other patients who have had a total ban imposed from all Laverty Pathology collection centres. The Tribunal has not, in any event, found that the Applicant is not able to comply with the patient ban.

  4. The Tribunal is satisfied that the genuine reason for not having the numbering system in operation at the Collection Centre was due to the specific circumstances of the Collection Centre, where a numbering system is not always effective. The Tribunal is satisfied that the genuine reason for the patient ban was a response to aggressive behaviour to ensure the health and safety of the Respondent’s staff and other patients. The Tribunal is satisfied that the genuine reason for not responding in a timely manner to the Applicant’s complaints was due to the Respondent’s own internal administrative error.

  5. In El Kassir v Westpac Banking Corporation [2025] NSWCATAD 159, the Tribunal determined a case with a similar factual scenario. In this case, Westpac ended its banking relationship with the applicant following multiple occasions of abusive behaviour towards Westpac employees. Westpac issued the applicant with a “banning notice” which prevented the applicant from entering any Westpac premise. The applicant later emailed a letter of apology to Westpac, acknowledging his behaviour and indicating he had made efforts to address his mental health to avoid reoffending. The applicant included a letter from his treating practitioner. Westpac provided a written response, indicating they had considered the applicant’s emails but had decided Westpac was entitled to close his account and not to reverse the “banning order.” At [28]-[32], Deputy President Hennessy ADCJ stated:

“28. There is no material before the Tribunal that would support a finding that “disruptive behaviour” is a characteristic that appertains generally to people who have a mental illness or that it is a characteristic that is generally imputed to persons who have that disability: Anti-Discrimination Act, 2 49B(2).

29. Mr El Kassir ’s complaint of direct discrimination is obviously lacking in merit.

30. To prove indirect discrimination on the ground of disability, Mr El Kassir would have to prove that Westpac imposed a requirement on potential customers that they do not have a history of disruptive behaviour towards staff. Mr El Kassir would also have to prove he cannot comply with that requirement and that a substantially higher proportion of people without his disability cannot comply with that requirement. Finally Mr El Kassir would have to prove that such a requirement is not reasonable in all the circumstances.

31. There is no material before the Tribunal which would support a finding that a substantially higher proportion of people without Mr El Kassir ’s disability would not be able to comply with a requirement of that kind. People with and without a mental illness engage in disruptive behaviour.

31. If Mr El Kassir is complaining of indirect discrimination, such a complaint is obviously lacking in merit.”

  1. For the same reasons, the Applicant’s complaint of discrimination, either direct or indirect discrimination, is also lacking in merit.

  2. In Kenworthy v Heartbeat Centre Coffs Harbour Limited [2025] NSWCATAD 133, the Tribunal determined a case in which the applicant had not reported to his employer any disability or pre-existing conditions that would affect his ability to work and had described his disability as an “unseen disability”. At [37]-[39], Senior Member Anderson stated:

“37. Since the respondent was unaware of the applicant’s injury to his shoulder, it is obvious on the evidence, that the respondent treated the applicant in the same way as it treats a person without the applicant’s disability. The appropriate comparator is accepted by the Tribunal to be a person without the applicant’s injury, casually employed by the respondent, who resigns, and retrospectively seeks support to claim a statutory benefit for a condition he did not previously disclose and did not disclose that was aggravated during his employment. No less favourable treatment has been received by the applicant. The types of detriment alleged by the applicant prior to his resignation to be a form of discrimination do not constitute discrimination, simply, because the respondent did not know of the disability and as such, no less favourable treatment on that basis has been suffered or established.

38. The respondent did not require the applicant to comply with an unreasonable discriminatory condition which would disproportionately disadvantage the applicant, or people with his attribute, or one which is substantially the same as his. Also, there is no identifiable unreasonable requirement or condition that has been imposed by the respondent, with which the applicant or those with a condition substantially the same as his, are not able to comply.

39. There is thus no direct or indirect discrimination capable of being established.”

  1. The Tribunal has found that the Respondent did not have knowledge that the Applicant was a person with disability. On the evidence before the Tribunal, and as the Tribunal has found, the Respondent treated the Applicant in the same way that it treated other patents, including anyone that did not have disability. On this basis, direct or indirect discrimination cannot be substantiated.

Conclusion

  1. The Tribunal has found that the Respondent did not have knowledge of the Applicant’s disability and that the genuine reasons for the Respondent’s actions were not related to the Applicant’s disability.

  2. The Tribunal has not substantiated that the Respondent directly discriminated against the Applicant. That is, the Tribunal has not found that due to the Applicant’s disability, the Respondent treated the Applicant less favourably than in the same circumstances, or in circumstances which are not materially different, the Respondent treats or would treat a person who does not have that disability in relation to any of the three incidents, in imposing a patient ban or in the response to the Applicant’s complaints.

  3. The Tribunal has not substantiated that the Respondent indirectly discriminated against the Applicant. That is, the Tribunal has not found that the Respondent required the Applicant to comply with a requirement or condition, with which a substantially higher proportion of persons who do not have that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case with which the Applicant does not or is not able to comply. The Tribunal has found that the Respondent’s actions were reasonable in the circumstances and any requirement imposed was one which the Applicant can comply with.

  4. The Tribunal acknowledges that the Applicant has been distressed by his experience at the Collection Centre during 2023. However, for the reasons detailed above, the Tribunal has not substantiated the Applicant’s disability discrimination complaint.

  5. The Tribunal has therefore decided to dismiss the whole of the complaint pursuant to s 108(1)(a) of the ADA.

  6. The Tribunal also makes an order to amend the name of the Respondent from Healius Pathology Ltd Pty t/a Laverty Pathology (which appears to be an error on the initiating application) to Healius Pathology Pty Ltd t/a Laverty Pathology. If this is not the correct legal entity, the Respondent may apply, within 7 days of the date these reasons are published, for the correct respondent to be substituted.

Order

  1. The Tribunal makes the following orders:

  1. An order is made to amend the name of the Respondent to Healius Pathology Pty Ltd t/a Laverty Pathology. If this is not the correct legal entity, the Respondent may apply, within 7 days of the date these reasons are published, for the correct respondent to be substituted.

  2. Pursuant to s 108(1)(a) of the Anti-Discrimination Act 1977 (NSW), the Tribunal dismisses the whole of the complaint.

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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

Decision last updated: 28 July 2025

Citations

Miller v Healius Pathology Pty Ltd t/a Laverty Pathology [2025] NSWCATAD 187

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