Nungirayi v Commissioner for Equal Opportunity
[2013] SAEOT 9
•12 June 2013
EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
NUNGIRAYI v COMMISSIONER FOR EQUAL OPPORTUNITY & ANOR
[2013] SAEOT 9
Judgment of Her Honour Judge Cole, Member Ms A Bachmann and Member Mr H Yapp
12 June 2013
DISCRIMINATION LAW
Application for a review of a decision made pursuant to s 93(2b) of the Equal Opportunity Act 1984 by the Commissioner for Equal Opportunity to decline to extend the time within which a complaint may be lodged - applicant applied to sit a clinical examination for overseas qualified dentists but was denied access to the examination due to Hepatitis B infection - applicant alleged discrimination on the grounds of disability - complaint lodged out of time - reasons for the delay considered - extension of time for the lodging of the complaint refused - Commissioner's decision confirmed.
Equal Opportunity Act 1984 (SA); Disability Discrimination Act 1992 (Cwlth); Australian Human Rights Commission Act 1986 (Cwlth); Health Care Act 2008 (SA); Limitation of Actions Act 1974 (Qld), referred to.
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Fraser v President, Anti-Discrimination Board and Others [2001] NSWSC 1083; Phillips v Australian Girls' Choir [2001] FMCA 109; McAuliffe v Puplick & Anor (1996) EOC 92-800, considered.
NUNGIRAYI v COMMISSIONER FOR EQUAL OPPORTUNITY & ANOR
[2013] SAEOT 9HER HONOUR JUDGE COLE AND MEMBER BACHMANN:
This is an application by Mr Nungirayi for the review of a decision by the Commissioner for Equal Opportunity (“the Commissioner”) to decline to extend the time within which he may lodge a complaint. The decision of the Commissioner for Equal Opportunity was made pursuant to s 93(2b) of the Equal Opportunity Act 1984 (“the Act”). Mr Nungirayi has applied for the review pursuant to s 96B of the Act.
At the hearing of the application, a book of documents[1] and an affidavit of Anne Pak-Poy, General Manager of the Adelaide Dental Hospital, sworn on 14 February 2012,[2] were tendered in the respondent’s case, with the consent of the applicant. Ms Wells appeared for the Commissioner and Mr Nungirayi represented himself.
[1] Exhibit R1
[2] Exhibit R2
Background
The facts of the matter are not in dispute.
Some time prior to 2010, Mr Nungirayi attained the degree of Bachelor of Dental Surgery in Zimbabwe. Also some time prior to 2010, Mr Nungirayi contracted the Hepatitis B virus.
Mr Nungirayi came to Australia and wished to achieve registration with the Dental Board of Australia to enable him to practise as a dentist in Australia.
In her affidavit, Ms Pak-Poy set out the pre-requisites that an overseas qualified dentist must fulfil to achieve registration with the Dental Board of Australia. Ms Pak-Poy said:[3]
[3] Exhibit R2 at para 23-26
23.There are a number of components in the ADC’s assessment and examination pathway for overseas qualified dentists. These are:
· Step 1. Initial Assessment
· Step 2. English Language Test
· Step 3. Preliminary (written) examination
· Step 4. Final (clinical) examination
24.When all four steps have been successfully completed a candidate is awarded the Australian Dental Council Certificate (General Dentist) which enables him or her to apply for registration with the Dental Board of Australia to practise in all states and territories of Australia. Further information about the final (clinical) examination is contained in a handbook produced by the Australian Dental Council. A copy of the Handbook is annexed hereto and marked “APP10”.
25.The final exam (step 4) is a clinical exam conducted over a full week period. The ADC has responsibility for the full examination and assessment process and arranges examination sessions at different times throughout a number of months at various venues in different states around Australia. The venues in which the ADC final examination is held are usually clinics within dental hospitals or university dental schools that are used for teaching and clinical training by dental schools in Australia. The ADC negotiates individual facility user arrangement [sic] which is similar to leasing clinical facilities. However, the ADC candidates are not enrolled as students at these venues in order to sit the examinations. ADC candidates may need to meet any requirements stipulated by individual venues.
26.Candidates sitting the final examination treat members of the public as examination patients and this includes performing exposure prone procedures as part of their clinical assessment. Exposure Prone Procedures are defined as follows:
“Exposure prone procedures (EPPs) are invasive procedures where there is potential for direct contact between the skin, usually finger or thumb of the healthcare worker, and sharp surgical instruments, needles, or sharp tissues (eg fractured bones), spicules of bone or teeth in body cavities or in poorly visualised or confined body sites, including the mouth of the patient. During EPPs, there is an increased risk of transmitting bloodborne viruses between healthcare workers and patients.” (Reference from NHMRC B5.43 >
Mr Nungirayi applied, by application dated 18 March 2009, to sit the Adelaide Dental Council (“ADC”) clinical examination. The Adelaide Dental Hospital (“ADH”) has, and had in 2009, an agreement with the ADC that the ADH would provide access to public dental patients and to facilities to enable the ADC to conduct clinical examinations for overseas qualified dentists who are undertaking the requirements for the Australian Dental Council Certificate (General Dentist). The ADH has no input into the clinical examination, beyond the provision of access to its facilities and to pre-selected patients. However, ADC candidates are expected to comply with the ADH’s policies and procedures in relation to infection control.[4] By letter dated 11 June 2009, Mr Nungirayi was informed, by the Chief Executive Officer of the ADC, that he was scheduled to sit the examination at the ADH, Frome Road, Adelaide, from 16 to 23 April 2010. The same letter contained the following information:
ADH requires proof of candidates’ Hepatitis B status. The information must be received by ADH by no later than Friday 26th February. All candidates must send a certified copy of immune status results taken within 6 months of their exam. Please do not send your original documents. Candidates who cannot sit because they have not provided the information as required will be considered a withdrawal and the Withdrawal Policy will apply. Enclosed is a sheet titled: Information Concerning: Hepatitis B vaccinations and Immunity to Hepatitis B. Candidates who seek to discuss these requirements should contact the nominated infection control person (name and email address supplied)
[4] Exhibit R2 paragraphs 27-31
The following information appeared on the sheet referred to in the letter:
The South Australian Dental Service (SADS) require all operators who will treat patients to have protective levels of Hepatitis B. A copy of dates of records of completed Hep B immunisations and of serological screen to confirm immunity must be provided prior to commencement.
The sheet also gave information about Hepatitis B vaccinations.
The same information was provided to Mr Nungirayi in a further letter dated 19 November 2009.
Mr Nungirayi wrote to Ms Krishnappa of the ADH on 10 February 2010. With that letter, Mr Nungirayi provided three letters from Dr Badov, Head of Gastroenterology, Frankston and Rosebud Hospitals.[5] Dr Badov said, in his letter of 18 December 2008, with reference to Mr Nungirayi:
His previous Hepatitis B DNA was undetectable. Symptomatically he has been well with no symptoms of liver disease or liver failure. His previous liver function tests also were normal.
[5] Exbhibit R2 APP 12
Dr Badov said that he had organised repeat tests. In his letter of 18 June 2009, Dr Badov said:
Symptomatically he has been well with no symptoms of liver disease or liver failure. His latest liver function tests were normal with ALT of 28 on the 06/02/09. His abdominal ultrasound was also normal with normal alpha-fetoprotein levels. His Hepatitis B DNA level however was detectable at 793 international units per mL. This is still a very low viral load.
He has Hepatitis Be antigen negative disease and therefore current guidelines for initiation of therapy require Hepatitis B DNA greater than 2000 before proceeding to a liver biopsy for further assessment. At this stage Tamuka does not fall within this criterion.
In his letter of 17 September 2009, Dr Badov said:
Symptomatically he has been well with no symptoms of liver disease or liver failure. His recent abdominal ultrasound shows no evidence of significant liver pathology. His Hepatitis B DNA level was 866IU/ml which is below the cut-off point of 2000 which would necessitate a liver biopsy.
Following the receipt of these reports, an exchange of emails took place within the ADH, between the ADH and the ADC and with Mr Nungirayi. On 24 February, Ms Krishnappa, RN, Infection Control and Staff Health, ADH, sent an email to Dr Watkins of the ADC which said:
We have reviewed the Hepatitis B levels presented by ADC candidate Tamuka Nungirayi number Z06/421.
Following the guidelines we have decided that the levels presented are unacceptable for his attendance at the ADC exams due to be held at Adelaide Dental Hospital this April.
On 24 February 2010, the Chief Executive Officer of the ADC wrote a letter to Mr Nungirayi which said:
Our information to candidates regarding access to clinical examinations advises that candidates must meet the health status criteria required by Australian venues. The Adelaide Dental Hospital has advised the ADC that you have not met the requirements and will not be admitted to the examination.
Please refer to your Candidate Information Handbook for further information. As detailed on the application form, inability to undertake the examination will be considered a withdrawal. You are required to formally notify the ADC of your withdrawal.
It is this decision that Mr Nungirayi seeks to complain of in his complaint to the Commissioner. The respondent in this matter is the Central Adelaide Local Health Network Incorporated because the ADH is a division of the SA Dental Service, which, in turn, is part of the Central Adelaide Local Health Network Incorporated (“CALHN”).[6] Mr Nungirayi, in the complaint the subject of these proceedings, complains of the decision by the ADS to exclude him from physical attendance at the clinical examination on the premises controlled by the ADS in which the ADC conducts the clinical examinations.
[6] Exhibit R2 para 3
Mr Nungirayi had a further test on 25 February 2010. The result was a HBV DNA PCR (Quantitative) of 817 IU/ml. Mr Nungirayi provided the pathology report of that test to Ms Krishnappa of the ADH, and she wrote to Dr Watkins at ADC saying:
We have received a copy of the blood results for Tamuka Nungirayi on 15/3/10. The result is HBV DNA PCR (Quantitative) 817 IU/ml. I have discussed his latest results with Dr Liz Coates. The situation is unchanged. The candidate will be unable to sit the exams as per the guidelines due to his viral load.
In his oral submission to the Tribunal, Mr Nungirayi said that, initially, he was unaware of any procedure by which he could complain about the ADH’s decision. He became aware of an appeals procedure which related to the result of the examination, but that procedure ultimately proved to be inapplicable to his situation. He said that he grew up in Zimbabwe, where the idea that one can complain about the decision of a government agency does not “come easily”.
In his complaint to the Commissioner lodged on 8 June 2012, Mr Nungirayi said that he became aware in about May 2011 that he may be able to “sue the organisations involved”. He said that he consulted the Wyndham community legal centre and officers at the Werribee Magistrates Court. In his complaint, he said “Because of the legal costs involved, I could not initiate legal action”. He said, in his submissions and in his complaint that he became aware of the Australian Human Rights Commission (“AHRC”) and the state equal opportunity commissioners. At some time prior to 25 August 2011, Mr Nungirayi lodged a complaint against the ADC with the AHRC.[7] In his complaint to the AHRC, Mr Nungirayi explained that it was only two components out of ten of the clinical examination which are exposure prone, one of which is the administering of an injection and the extraction of a tooth. He suggested that the ADC could have permitted him to perform those components upon a manikin rather than a patient. He said, in his complaint to the AHRC:
My infectivity as determined by the viral load was very low at the time. I am ready to send you the lab results if necessary. I will not dispute the decision of the Adelaide Dental Hospital for now. If they thought I should not perform exposure prone procedures even with those low levels, then so be it; patient safety comes first after all. I will repeat though that the decision of the ADC not to admit me into the exam was and is still disability discrimination.
Understand that I do not know what the Adelaide Dental Hospital actually told the ADC, but in all fairness, it should have amounted to the fact that because of my Hepatitis B status, they were not going to allow me to perform exposure prone procedures on patients during the examination. …
[7] Exhibit R1 p 20
By letter dated 25 August 2011, Mr Nungirayi was informed that the President of the AHRC had made the decision to terminate his complaint pursuant to s 46PH(1)(b) of the Australian Human Rights Commission Act 1986 (Cwlth) on the basis that it was lodged more than 12 months after the alleged unlawful discrimination took place.[8] The following reasons were given for the decision:
In reaching this decision I have given particular consideration to the length and reasons for the delay. While I have noted your submission on the reasons for your delay in making your complaint to this Commissioner, I am not minded to disregard the delay and inquire into the matter. I also note that you have pursued an internal complaint and a complaint to the AHPRA and that you have raised your concerns with the National Health Practitioner Ombudsman and the Privacy Commissioner. While you appear to be dissatisfied with the information and assistance you have received, and/or the outcomes of the complaints you have already pursued, in light of the complaint being lodged 17 months after your claim of alleged disability discrimination occurring, I have decided to terminate the complaint as it was lodged more than 12 months after the alleged unlawful discrimination took place.
[8] Exhibit R1 p 26
On 17 October 2011, Mr Nungirayi filed proceedings against the ADC in the Federal Magistrates Court in which he alleged unlawful discrimination in contravention of the Disability Discrimination Act 1992 (Cwlth). By notice dated 28 February 2012, Mr Nungirayi sought to discontinue the action in the Federal Magistrates Court. In his oral submission, Mr Nungirayi said that the action in the Federal Magistrates Court came to an end on 28 March 2011 when he and the ADC signed a confidential document.
The complaint the subject of these proceedings was lodged with the Commissioner on 8 June 2012. By that time, just over 28 months had elapsed since the decision by the ADH the subject of these proceedings, which was communicated on about 25 February 2010, and approximately 26 months had elapsed since the holding of the clinical examination from which Mr Nungirayi was excluded in April 2010.
In his oral submission, Mr Nungirayi said that his fourth child, a daughter, was born to him and his wife on 2 April 2012. Mr Nungirayi put this forward by way of explanation for the delay between the end of the action in the Federal Magistrates Court and the lodgement of the complaint with the Commissioner.
Time limit and the Act
The Act provides, in s 93(2), in relation to the making of a complaint alleging that a person has acted in contravention of the Act, that:
A complaint must be lodged –
(a) if the alleged contravention is constituted of a series of acts – within 12 months of the last of those acts;
(b) in any other case – within 12 month of the date on which the contravention is alleged to have been committed.
The Act further provides, in s 93(2a):
The Commissioner may, on application, extend the time for lodging a complaint, even if the time for lodging the complaint has expired, if the Commissioner is satisfied –
(a)that there is good reason why the complaint was not made within the stipulated time period; and
(b)that in all the circumstances it is just and equitable to do so.
The Act further provides, in s 96B:
(1)If the Commissioner has refused an application for an extension of time within which to lodge a complaint, the applicant may apply to the Tribunal for a review of the decision.
(2)An application for review must be made within 1 month after notification of the decision.
(3)The Tribunal may confirm the decision of the Commissioner or substitute its own decision.
Mr Nungirayi was notified of the Commissioner’s decision not to extend the time within which he could lodge a complaint under the Act by letter of 16 July 2012, which said:[9]
I am writing about your complaint, dated 8 June 2012, against Central Adelaide Local Health Network (SA Dental Service & Adelaide Dental Hospital). I have received your letter, enclosed with your complaint, asking me to accept a late complaint.
I have considered what you say, but have decided not to extend the time for you to lodge your complaint. This is because I am not satisfied that:
a) there is a good reason why the complaint was not made within the time specified and
b) in all the circumstances, it would be just and equitable for me to take up the complaint now.
The reason for my decision is that there has been significant delay in the complaint being made. Under the Equal Opportunity Act 1984 (SA), complaints must be made within 12 months of the alleged discriminatory event. Your complaint was made 26 months after the decision to exclude you from the clinical exams was made. Being unaware of your right to make a complaint, or pursuing a complaint in an alternate jurisdiction, such as through the Australian Human Rights Commission, is not generally adequate reason to extend the time in which to make a complaint.
[9] Exhibit R1 p 51
Mr Nungirayi appealed to this Tribunal.
Summary of reasons for delay put forward by Mr Nungirayi
In summary, Mr Nungirayi put forward the following reasons for the delay in lodging a complaint with the Commissioner:[10]
·when the decision complained of was first made, Mr Nungirayi was unaware of the complaint procedures available.
·he became aware of his ability to take legal action in about May 2011. He also became aware of the AHRC and the Commissioner at this time. However, he was unable to institute legal proceedings because of the cost.
·he lodged a complaint with AHRC, but it was terminated under s 46PH(1) of the Australian Human Rights Commission Act.
·he then instituted proceedings in the Federal Magistrates Court against the ADC. He obtained legal assistance, but his barrister told him he had the wrong respondent. He withdrew the proceedings in March 2011.
·the lapse of time does not prejudice the Commissioner’s ability to investigate. All of the people involved in the decision complained of are still in their positions.
·the facts about Hepatitis B and the literature have not changed.
[10] Exhibit R1 p 44
Notice of Appeal
In his notice of appeal, Mr Nungirayi complained, in effect, that the Commissioner’s decision was highly prejudicial to him, as the cost of attempting to sit the clinical examination again would be more than $8,000 and, in the absence of a decision on the matter, he may meet with the same obstacle. He pointed out that his would not be an isolated case, so that the matter had some general importance. Mr Nungirayi complained that, in dismissing his complaint for being out of time, the Commissioner had omitted to address the merits of the complaint. He alluded to the fact that his ability to practice dentistry was at stake, an issue which has obvious serious financial and other consequences for him. He asserted that the processing of the complaint by the Commissioner would be unaffected by the delay.
The Commissioner’s arguments
Nature of the Review
Ms Wells submitted that the terms in which s 96B of the Act confers upon this Tribunal the jurisdiction to review the Commissioner’s decision regarding an application to extend time make it clear that the review is intended to be a merits review. Ms Wells pointed out that the obligation imposed by s 97 to give reasons, including findings of fact, strongly indicate that a merits review was intended. We agree. We have conducted the review accordingly, including the receipt of evidence.
Does the Act apply?
Mr Nungirayi’s substantive complaint is a complaint of discrimination on the grounds of a disability, namely his infection with Hepatitis B. The Act, in s 5, defines disability to include:
…
(c) the presence in the body of organisms causing disease or illness; or
(d) the presence in the body of organisms capable of causing disease or illness…
Ms Wells argued that the Act does not address the incident complained of. The Act does not make discrimination on the basis of disability unlawful in all circumstances. The Act, in Part 5, makes discrimination on the basis of disability unlawful in specified situations. Ms Wells argued that none of those situations applied to the decision of the ADH in relation to Mr Nungirayi which is at the heart of his complaint. Discrimination on the basis of a disability by “an authority or body empowered to confer an authorisation or qualification that is needed for, or facilitates, the practice of a profession…” is unlawful in the circumstances set out in s 73 of the Act, but the ADH is not such an authority or body. Mr Nungirayi argued, in effect, that the conduct of ADH was rendered unlawful by s 74 of the Act, which provides:
74—Discrimination by educational authorities
(1)It is unlawful for an educational authority to discriminate against a person on the ground of disability—
(a) by refusing or failing to accept an application for admission as a student; or
(b) in the terms or conditions on which it offers to admit the person as a student.
(2)It is unlawful for an educational authority to discriminate against a student on the ground of disability—
(a) in the terms or conditions on which it provides the student with education or training; or
(b) by denying or limiting access to a benefit provided by the authority; or
(c) by expelling the student; or
(d) by subjecting the student to other detriment.
(3)This section does not apply to discrimination on the ground of disability in respect of admission to a school, college or institution established wholly or mainly for students who have a particular disability.
Ms Wells argued that the ADH is not an educational authority. That term is defined in s 5 of the Act, which provides:
educational authority means the person or body administering a school, college, university or other institution at which education or training is provided;
Ms Pak-Poy, in her affidavit, described the function of ADH in this way:[11]
[11] Exhibit R2 paras 5-7
5.The ADH offers a range of general and specialist services provided by a combination of staff and visiting specialists, academic staff of the School of Dentistry at the University of Adelaide and undergraduate and postgraduate students enrolled in School of Dentistry training programs at the University of Adelaide.
6.General services are available at the hospital, predominantly by referral from a Community Dental Clinic. General dental services are provided primarily by undergraduate students under the supervision of qualified dentists. Community Dental Clinic patients may be asked to attend the hospital to have their care provided by students. General dental services may also be provided by qualified dentists. General dental services include:
· check ups (examination and prevention)
· cleaning (examination and prevention)
· fillings
· root canal treatment (simple endodontics)
· simple fixed and removable dentures, crowns and bridges (prosthodontics)
· simple tooth removal
7Specialist services are available at the hospital predominantly by referral from a Community Dental Clinic. Specialist dental services include:
· tooth removal
· surgical procedures of the mouth and jaws (oral and maxillofacial surgery)
· banding (orthodontics)
· root canal treatment (endodontics)
· diseases of the gums (Periodontics)
· dentures (removal prosthodontics)
· crowns and bridges (fixed and removable prosthodontics)
· special needs dentistry for medically, physically and intellectually disabled patients.
It is implicit in Ms Pak-Poy’s description of the function of the ADH that the dental work undertaken there by undergraduate and postgraduate students is undertaken as part of their training program. On that basis, we conclude that the ADH is an educational authority within the meaning of the Act, in that it is an institution at which training and education is provided. Of course, it is also a dental hospital, but the involvement of the ADH in the training of students of dentistry at the University of Adelaide seems to be sufficiently integral to its activities to enable it to come within the definition of an educational authority.
Mr Nungirayi’s complaint about the ADH is not, however, covered by s 74 because Mr Nungirayi was not a student at the time that he was excluded from the clinical examination. Mr Nungirayi was not undertaking any form of education or training involving the ADH or at all. He was not seeking to become a student. He was simply seeking, by undertaking the clinical examination (and other pre-requisites) to qualify for registration with the Australian Dental Board on the basis of his pre-existing degree in dentistry from Zimbabwe. The Act, in s 74, only makes unlawful certain conduct by an educational authority in relation to a student.
Ms Wells addressed the question of whether s 76 of the Act, which makes unlawful certain conduct by a person who offers or provides goods or “services to which this Act applies” could have application to Mr Nungirayi’s complaint. The Act, in s 5, says, relevantly:
Services to which this Act applies means –
(a)access to or use of a place or facilities that members of the public are permitted to enter or use; or
…
(i)services of a profession or trade; or
...
(j) services provided by a Government department, instrumentality or agency or a council;
Ms Wells argued that the ADH’s activities do not come within subsection (a). Members of the public are not permitted to enter and use the ADH or its facilities. Patients are generally referred from a Community Dental Clinic.[12] Dentists use the ADH by virtue of their employment at the ADH or the University of Adelaide or a consultancy arrangement, and overseas dentists attend at the ADH to use its premises and facilities by virtue of having applied to the ADC to undertake the clinical examination. The ADC uses the ADH pursuant to an agreement between the two organisations.[13] We accept Ms Wells’ argument that the ADH is not providing access to or use of a place or facilities that members of the public are permitted to enter or use. The provision, by the ADH, of access to its premises to ADC examination candidates, is not a service within subsection (a) of the definition.
[12] Exhibit R2 para 6
[13] Exhibit R2 para 27-31
Ms Wells also argued that CALHN, through ADH, in providing a venue and, presumably, some facilities, to the ADC to enable it to examine the candidates for the Australian Dental Council Certificate (General Dentist), did not come within subsection (j) of the definition of “services to which this Act applies”. Ms Wells informed us that CALHN was incorporated under s 29 of the Health Care Act 2008. In our view, CALHN is a government agency, and so are the bodies, such as the ADH, which operate under it. Ms Wells argued that the provision by the ADH of a venue and patients to the ADC for use in the examination of candidates for the Australian Dental Council Certificate (General Dentist) simply is not a service. We respectfully disagree. It seems to us that the provision of premises and equipment, together with the procurement of patients, by the CALHN through the ADH to the ADC constitutes the provision of services, in the sense of “conduct tending to the welfare or advantage of another” or “supply the needs of”.[14] Furthermore, although the services are provided directly by the ADH to the ADC, we consider that the ADH is also providing those services to candidates for the Australian Dental Council Certificate (General Dentist) within the meaning of s 76(1) of the Act, even though the ADH does not have a direct relationship with those candidates. In our view, s 76 is capable of applying to the decision of ADH complained of by Mr Nungirayi.
[14] The Oxford English Dictgionary Second Edition Volume XV
We reject the argument that the Act has no potential application to this matter.
Extension of Time
The Act provides, in s 93(2a):
The Commissioner may, on application, extend the time for lodging a complaint, even if the time for lodging the complaint has expired, if the Commissioner is satisfied –
(a)that there is good reason why the complaint was not made within the stipulated time period; and
(b)that in all the circumstances it is just and equitable to do so.
Ms Wells referred us to the remarks of McHugh J in Brisbane South Regional Health Authority v Taylor[15] concerning limitation periods. That case concerned an application for an extension of time pursuant to s 31 Limitation of Actions Act 1974 (Qld), but Mc Hugh J made some observations applicable to time limits generally:
With great respect to their Honours, s 31 should not be read as giving an applicant a presumptive right to an order once he or she satisfies the two conditions laid down in s 31(2) of the Act. An applicant for an extension of time who satisfies those conditions is entitled to ask the court to exercise its discretion in his or her favour. But the applicant still bears the onus of showing that the justice of the case requires the exercise of the discretion in his or her favour.[16]
…
The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period. As the New South Wales Law Reform Commission has pointed out:
“The potential defendant is thus able to make the most productive use of his or her resources and the disruptive effect of unsettled claims on commercial intercourse is thereby avoided. To that extent the public interest is also served.”
Even where the cause of action relates to personal injuries, it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for the wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible. [17]
[15] (1996) 186 CLR 541
[16] Infra, p551
[17] Infra p 552-553
The discretion to extend time is conferred by statute in numerous contexts. Generally, the onus is on the applicant for an extension of time to show that the discretion should be exercised in his favour.[18] It seems to us that s 93(2a) of the Act places the onus of establishing the matters in s 93(2a)(a) and (b) upon the applicant.
[18] See for example Fraser v President, Anti-Discrimination Board and Others [2001] NSWSC 1083, Phillips v Australian Girls' Choir [2001] FMCA 109.
It is necessary, therefore, for the applicant to establish that there is good reason why the complaint was not made within twelve months of the alleged contravention of the Act. We will take the alleged contravention by CALHN (through ADH) to be an allegation of a refusal to provide services to Mr Nungirayi, indirectly via ADC, those service consisting of access to the ADH premises and facilities, and the identification and the arranging of the attendance of a suitable patient, for the clinical examination held on 16 - 23 April 2010. Mr Nungirayi made his complaint to the Commissioner on 8 June 2012, so the complaint was more than 13 months out of time.
We have considered all of the matters put before us by both parties, which are summarised above. We accept that there is no obvious prejudice to the respondent, in terms of the ability to gain access to evidence, arising from the lapse of time. However, Mr Nungirayi needs to show good reason for the delay. We do not consider that he has done that. We have been provided with a broad idea of what Mr Nungirayi was doing with respect to other aspects of the matter in the 26 months between April 2010 and June 2012, but no real explanation for his omission to make a complaint to the Commissioner in relation to the ADH has been provided. Mr Nungirayi has said that he became aware of the Commissioner in May 2011. He has said that he had access to some legal advice at that time. Some reference was made to an inability to pay legal costs, but legal costs need not be incurred in the making of a complaint to the Commissioner. As we have set out above, it is evident that Mr Nungirayi chose other avenues of action. In his complaint to the AHRC, which was made prior to 25 August 2011, and which we have quoted more fully above, Mr Nungirayi said:
I will not dispute the decision of the Adelaide Dental Hospital for now. If they thought I should not perform exposure prone procedures even with those low levels, then so be it; patient safety comes first after all. I will repeat though that the decision of the ADC not to admit me into the exam was and is still disability discrimination.
At least ten months prior to the lodgement of his complaint, then, Mr Nungirayi was aware of the possibility of disputing the ADH decision, and had entertained the notion of doing so, but discarded it “for now”. We do not consider that Mr Nungirayi has put forward a good reason why the complaint was not made within the stipulated time period within the meaning of s 93(2a)(a).
To cover the eventuality that we are wrong about that, we will consider whether s 93(2a)(b) has been established; that is, whether in all of the circumstances it is just and equitable to extend the time for the lodging of the complaint. Again, in this context, we are aware that there would be no prejudice to the respondent, in terms of its ability to prepare its case, were the time to be extended. We further note that this is a matter of very considerable importance to Mr Nungirayi. The authorities are not conclusive as to whether the merits of a case should be considered when the question of whether time should be extended is being decided.[19] It may be that this is a question which can only be decided in the context of the circumstances of each case. In this case, we consider that it is appropriate to consider the merits when dealing with the issue of whether it would be “just and equitable” to grant an extension of time.
[19] eg Phillips v Australian Girls Choir, McInnes FM determined that merits were a relevant consideration, McAuliffe v Puplick & Anor (1996) EOC 92-800, Levine J said that merit was not a relevant consideration when the question of whether "good cause" had been shown, but under the legislation there considered, the question of whether it would be "just and equitable" did not arise.
Mr Nungirayi argued two things which we will treat as having been argued in the alternative. First, Mr Nungirayi argued that there was no proper basis for the decision of the ADH to decline to select a patient for him to perform procedures upon as part of his clinical examination and to decline to allow him to attend at the ADH premises for the examination. Mr Nungirayi relied upon an extract from one of the policy documents which addressed the issue of infectious diseases and health care workers at the time the ADH made the decision complained of. [20] He relied upon the Guidelines for Managing Blood-borne Virus Infection in Health Care Workers, dated 22 September 2005.[21] Those Guidelines were superseded by the Australian National Guidelines for the Management of Health Care Workers known to be infected by blood-borne viruses (“the New Guidelines”).[22] The New Guidelines provide:
Because of the known fluctuation in HBV DNA levels and the consequent potential for transmission, the working group developing these Australian National Guidelines agreed that HCWs must not perform EPP which HBV DNA is detectable.[23]
[20] See R2 exhibits APP1 - APP9
[21] Infra APP3
[22] Infra APP4
[23] HCWs = health care workers EPP = exposure prone procedures.
Mr Nungirayi acknowledged that the ADH would have been entitled to make the decisions it made in relation to him, had the New Guidelines been current. Then, his complaint would have been with the ADC for omitting to offer him an alternative form of the examination, using a manikin. However, Mr Nungirayi argued, the 2005 Guidelines did not support the ADH’s decision, so, by inference, its decision must have been discriminatory. Mr Nungirayi relied upon this extract from the 2005 Guidelines:[24]
27CDNA’s consensus view is that there is epidemiological evidence of a real risk of transmission of hepatitis B during exposure prone procedures from health care workers who are viraemic at levels of 104 viral equivalents per ml or higher. A health care worker infected with hepatitis B virus who is viraemic with 104 viral equivalents per ml or higher must not perform exposure prone procedures and must seek the advice of a treating practitioner with appropriate expertise.
28There is currently no evidence for transmission during exposure prone procedures of hepatitis B from infected health care workers whose level of viraemia is less than 104 viral equivalents per ml. However evidence of transmission at lower levels may emerge in the future and levels of viraemia may vary from test to test both because of genuine, natural variation in an infected individual and because of variation in the sensitivity of laboratory tests. The view of CDNA is that all health care workers infected with hepatitis B who have detectable viraemia and who perform exposure prone procedures should formally consult a treating practitioner with appropriate expertise. If the infected health care worker proposes to continue performing exposure prone procedures then he or she or their treating physician must inform a jurisdictional expert advisory committee.
[24] Exhibit R2 APP3 at p 12
Mr Nungirayi said that the method of calculating the viral equivalents referred to in the policy from the international units used in the reports of his blood tests was to multiply the latter by a factor of 6.[25] The result was 5,196 units, just over half of the 10,000 units discussed in the guidelines. Mr Nungirayi basically argued that the paragraphs quoted above from the guidelines entitled a health care worker who was infected with hepatitis B, but who had a level of viraemia less than 10,000 viral equivalents per ml, such as him, to perform exposure prone procedures. This is an oversimplification of the policy. Paragraph 28, quoted above, in fact, says that health care workers infected with hepatitis B with detectable viraemia (which would include Mr Nungirayi) should consult an expert practitioner and inform a jurisdictional expert advisory committee. The guidelines go on, in Section 5, to recommend that such a committee have powers in relation to the governing of infection control. In any event, the guidelines were not binding on the ADH, and were one of several sources of information on the topic. The Australian Guidelines for the Prevention and Control of Infection in Healthcare, of January 2004, were current in April 2010 and said:[26]
Healthcare workers who carry a bloodborne virus have a clear responsibility to follow the treatment recommended by their doctor and modify their involvement in direct patient care. They must not perform EPPs if they are:[27]
·HIV antibody positive
·hepatitis B e antigen (HBeAg) positive and/or hepatitis B DNA positive at high titres[28]
·hepatitis C RNA positive (by nucleic acid test).
[25] Transcript p 7
[26] Exhibit R2 APP2 p 213
[27] Communicable Disease Network Australia Guidelines for Managing Blood-Borne Virus Infection in Health Care Workers 2005, which are currently under review.
[28] Previously published guidelines have stated that HCWs must not perform EPPs if they are HBeAg positive and/or hepatitis B DNA positive at high titres. Whether 1ICWs with any level of hepatitis B DNA should perform EPPs is under review by Australian infectious disease experts. When there is a nationaly agreed approach this Guidelne will be updated, but in the meantime, HCWs wishing to perform EPPs who are hepatitis B DNA positive should cnsult their local health authority for advice.
Healthcare workers who carry a bloodborne virus and are not in these categories must not perform EPPs until specialist medical advice has been sought.
Healthcare workers who are currently hepatitis B surface antigen (HBsAg) positive and hepatitis B DNA negative or hepatitis C antibody positive and hepatitis C RNA negative must obtain ongoing medical advice regarding their potential infectiousness and the appropriateness of their continued performance of EPPs.
Healthcare students
Conditional registration may be required for students who have had to undertake modified training programs. This will require an undertaking that individuals who are known to carry HIV, HCV or HBV will report their infectious status at the start of their training and agree not to perform EPPs. Training courses that require the performance of EPPs should include information, counselling, opportunities for testing and career advice.
Training institutions should counsel student healthcare workers carrying bloodborne illness capable of being transmitted through EPPs, against a career in any profession that may involve such procedures.
The Immunisation Guidelines for Health Care Workers in South Australia 2008 were current in April 2010 (“the Immunisation Guidelines”).[29] The Immunisation Guidelines recommend that health care workers be required to be immunised against hepatitis B. The Immunisation Guidelines say, at paragraph 5.6.7:
Those who are infectious (HBsAg and/or HBV DNA positive) must not perform Exposure Prone Procedures (EPP). Infection Control Guidelines for the prevention of transmission of infectious diseases in the health care setting (2004).
[29] Exhibit R2 APP 8
Mr Nungirayi submitted that the immunisation requirement was not applicable to him, as it would obviously be of no benefit. We understand that. The point of the Immunisation Guidelines in the context of this case is that there was, at the time the ADH made its decision, a guideline recommending that health care workers actually be immune to hepatitis B. This is reinforced by the Safe Practice and Work Environment Infection Control Infection Control Policy, SA Dental Service Policy No: SPE 3-01.[30]
[30] Infra APFP9
The Act provides in s 79A:
This Part does not render unlawful a discriminatory act if the act –
(a) is directed towards ensuring that an infectious disease is not spread; and
(b) is reasonable in all the circumstances.
Having regard to the provisions of the guidelines and policies current in April 2010, and to the subsequent revision of those guidelines and policies to exclude health care workers who have detectable HBV DNA in their blood from performing exposure prone procedures, we do not consider that Mr Nungirayi has a basis upon which to argue that the refusal by the ADH to provide one of its patients for him to operate upon in his clinical examination was not “reasonable in all the circumstances” pursuant to s 79A of the Act. Mr Nungirayi’s argument that he should have been allowed to perform the examination using a manikin has nothing to do with the ADH. ADH was not the body setting the examination.
Summary and Conclusion
The only basis upon which the Act might apply to the interaction between the ADH and the ADC which resulted in Mr Nungirayi not being permitted to sit the clinical examination in April 2010 is if the ADH is considered to be providing services, sufficiently directly, to Mr Nungirayi through the ADC.
In relation to the application to extend the time within which to appeal, the application is 14 months out of time. The time limit is 12 months from the date of the conduct complained of. In reviewing the Commissioner’s decision not to extend time, we have approached the question de novo. Mr Nungirayi has not provided good reason why the complaint was not made within the stipulated time period within the meaning of s 93(2a)(a). In all of the circumstances, and having regard to s 79A, we do not consider that Mr Nungirayi has any prospect of success in his complaint under the Act against the ADH (and CALHN). That is a relevant factor in the consideration of whether an extension of time would be just and equitable pursuant to s 93(2a)(b). We have borne in mind that there is no prejudice to the ADH (and CALHN) arising from the lapse of time in terms of its ability to prepare its case. We have also borne in mind the importance to Mr Nungirayi of the issues raised in the matter. However, in all of the circumstances, we decline to extend the time for the lodging of the complaint. The Commissioner’s decision is confirmed.
MEMBER YAPP:
I adopt with gratitude the finding of facts of Judge Cole and Member Bachmann. I am unable to agree with their conclusions for the reasons following.
It is common ground between the parties that a review of the Commissioner’s refusal to extend time for the Applicant to lodge his complaint entails an examination of the merits of the case itself. The Applicant’s explanation for the delay in lodging a complaint with Commissioner in South Australia, after discontinuing his claim in the Federal Magistrates Court in Melbourne where the Applicant lives, is at best unsatisfactory.
The evidence relating to that point is at best inconclusive, and certainly was not canvassed in much greater detail, nor tested in cross-examination. The parties essentially proceeded on the basis of an agreed statement of facts. Nevertheless the Tribunal has to analyse the evidence the parties placed before it.
In my opinion the authorities on the judicial discretion to extend time, carefully canvassed in the judgment of Judge Cole and Member Bachmann, and which I need not repeat, is not a closed ended approach. Indeed if it was a closed ended approach, it can only mean a flat refusal to extend time on each and every application.
An open ended approach therefore entails a consideration of all relevant matters, including any gaps in the chain of events.
The situation may well be different if the Applicant resided in South Australia. Specifically what is the likelihood that a Victorian legal practitioner advised the Applicant on the Equal Opportunity Act 1984 of South Australia (the Act)?
On the other hand, the Applicant asserted, which was not controverted by the Respondents (this term has the same meaning as in the majority’s judgment), that in so far as the Respondents were concerned, the situation remains the same for them as it was on 24 February 2010. In other words granting the Applicant an extension of time causes no prejudice to the Respondents.
Considering all the above matters together, I am prepared to give the benefit of the doubt to the Applicant on the basis that it has not been demonstrated that the Applicant wilfully ignored specific legal advice on a complaint to the Commissioner, including any time limits.
To conclude otherwise, and especially so in the light of a substantial gap in the then prevailing circumstances, is not treating an unrepresented applicant on a different footing. In my opinion it is fair and reasonable in all the circumstances.
There is no doubt that this matter has undertones which can get the better of human emotions. The Applicant has admitted that he is a Hepatitis B carrier. An analysis of the facts is nevertheless necessary, whatever the undertones.
The parameters of ADH’s role in this matter can be simply stated. It has to decide whether to allow the Applicant to attend at its premises to sit his clinical examination, with manikins, or real patients. The examiners determine whether the Applicant passes or fails his clinical examination. If the Applicant passes, it is the Dental Board of Australia who finally decides whether the Applicant is entitled to practise as a dentist, with or without conditions or limitations. In my opinion it is realistic to say that the Dental Board of Australia will more than likely be appraised of the Applicant’s HIV status.
It is important to focus on the difference between the various Guidelines applicable to exposure-prone procedures as at 24 February 2010, when the Applicant was scheduled to sit his examination, and the Guidelines applying today, which come into effect on 28 February 2012.
Crucially as of 24 February 2010, there was a tolerance range for a carrier of Hepatitis B virus in the various Guidelines. The Guidelines applicable today has zero tolerance for all health workers.
Equally important is the converse situation - that not all dental procedures are exposure-prone procedures. There are many non exposure-prone dental procedures which a carrier of Hepatitis B can perform without risk to patients, and without drama.
At the risk of stating the obvious, at the relevant time, a health care worker who becomes infected is not for that reason immediately and automatically barred from practice.
The Applicant stated, again without contradiction from the Respondents’ counsel, that the final stage of his examination can be conducted using manikins instead of real patients. In other words there would not have been any exposure-prone procedures.
The fundamental point in the Adelaide Dental Hospital’s (ADH) letter of 24 February 2010 is that no specific reason beyond “health status criteria” was given for denying the Applicant the right to attend at ADH for his examination.
Indeed ADH’s letter of 24 February 2010 went on to ask the Applicant to “formally notify ADH of your withdrawal”.
In my opinion, the nature of the beast insofar as the relevant various Guidelines placed before the Tribunal are concerned, is that there ought to be a balanced approach. In other words, no single criteria on its own can be exclusively regarded as definitive or predominant.
A major argument advanced on behalf of ADH is that it entered into a private agreement with the Australian Dental Council (ADC) in relation to, amongst other things, the examination of candidates like the Applicant. It therefore follows, so it was said, that the Applicant has no remedy under the Act.
The logic behind this proposition is not easy to fathom. ADH is an entity of the Government of the State of South Australia. It is thus funded by public revenue. Its decisions affect the public at large, as it provides a service to the public through the training it provides to dentistry students.
There is no evidence, direct or indirect, before this Tribunal as to ADC’s source of funds. Given ADH’s undisputable position, this may well be inconsequential.
The essence of that proposition is that a public funded entity can enter into a private agreement which has ramifications for members of the public in the general sense, or in a specific sense in the case of the Applicant.
The Respondents also advanced the proposition that ADH is not an educational authority for the purposes of this matter.
In my opinion, like the earlier proposition that ADH, a public entity, entered into a private agreement with ADC, another public entity, is to place too fine a point on niceties. It is difficult to refute the basic notion that ADH exists for the very purpose of providing dental education or training in one form or another.
I have also had regard to S79A of the Act, which provides:
79A—Exemption in relation to infectious diseases
This Part does not render unlawful a discriminatory act if the act—
(a) is directed towards ensuring that an infectious disease is not spread; and
(b) is reasonable in all the circumstances.
This Section on a plain reading does not provide a “carte blanche” exonerating all discriminatory acts from the scrutiny of the Tribunal, as any otherwise discriminatory act must still be reasonable in all the circumstances.
Any qualified dentist who becomes infected after qualifying, can in principle, still practise dentistry limited to non exposure-prone procedures. Indeed, all the Guidelines contain provisions for counselling of health care workers who have become infected.
In my opinion this option can, but was not, considered at any stage.
In my opinion ADH’s failure to state any specific reasons for refusing the Applicant permission to attend at ADH cannot be regarded as reasonable for the purposes of Section 79A.
For the above reasons I would have granted the application of the Applicant.
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