WORRALL AND ACT HEALTH
[2006] ACTDT 1
•18 January 2006
AUSTRALIAN CAPITAL TERRITORY
DISCRIMINATION TRIBUNAL
CITATION:WORRALL AND ACT HEALTH [2006] ACTDT 1 (18 JANUARY 2006)
DT05/198
Catchwords: Discrimination in the provision of services – complainant suffering disability and holding political conviction – indirect discrimination – application to strike out complaint – whether application premature – whether complaint lacking in substance – whether causative link between relevant attributes and unfavourable treatment established.
Discrimination Act 1991, ss 7, 8, 20, 68, 89
Equal Opportunity Act 1984, s 44C
Clean Ocean Foundation v Environment Protection Authority (2003) 20 VAR 227
Edgley v Federal Capital Press of Australia Pty Ltd (2001) 108 FCR 1
Legal Aid Commissioner (ACT) & Ors v Grundy [1999] ACTSC 318
Lucy Couper and ACT Housing, DT03/18 dated 22 June 2004
Purvis v NSW Department of Education & Training [2003] HCA 62 (11 November 2003)
State Electricity Commission v Rabel & Ors [1997] EOC 92/875
Waters v Public Transport Commission (1991) 173 CLR 349
Tribunal:Mr M H Peedom, Deputy President
Date:18 January 2006
AUSTRALIAN CAPITAL TERRITORY )
DISCRIMINATION TRIBUNAL ) NO: DT05/198
RE: TONY WORRALL
ComplainantAND: ACT HEALTH
Respondent
ORDER
Tribunal : Mr M H Peedom, Deputy President
Date : 18 January 2006
Order :
Pursuant to section 89 of the Discrimination Act 1991, the Tribunal orders that the complaint be struck out.
……………………….
Deputy President
AUSTRALIAN CAPITAL TERRITORY )
DISCRIMINATION TRIBUNAL ) NO: DT05/198
RE: TONY WORRALL
ComplainantAND: ACT HEALTH
Respondent
REASONS
18 January 2006 Mr M H Peedom, Deputy President
The complaint
On 17 November 2004 the complainant made a complaint to the Discrimination Commissioner alleging that he had been discriminated against by the respondent in the provision of goods, services or facilities on the grounds of a disability and of political conviction. He also alleged that he was victimised by the respondent because he had made the complaint.
2. In the complaint form lodged with the Discrimination Commissioner the complainant gave the following account of his complaint:
I attended the Dental Health Clinic in Civic on the 12th November 2004 at 10-15am. Another very unpleasant experience at the hands of the staff of the Dental Health authority, Dragarna the senior receptionist said that non [sic] of the staff want to attend to me and that was ‘official policy’. I was told that I would not be served and that staff of the dental authority staff had a fore knowledge of what was to happen, I am not a very nice person, and Dental Health Authority staff were not going to serve me. I was seen by Dr. Long the head dentist. I was told to sit in the chair, I told Dr. Long that I only had four teeth, one is broken they have been examined since 2000, at all my other appointments, and still nothing has been done, so I wanted a dental plan. Dr. Long gave me a
Dental program
1) remove all my lower teeth
2)leave them to settle for three months, leave me for three months with no lower teeth whatsoever.
3)I would then attend in three months to have a partial mold [sic] taken for my new lower denture
4)then they will make up the four missing teeth in my lower denture
3. The complainant said that the cost of the dental treatment was to be $133. He considered that the cost was acceptable but that for him to be left without his lower teeth for three months was ridiculous. The complainant also referred to legal action taken against him by the respondent to recover a debt of $60 arising from the provision of other dental services to him and complained about the standard of care given to him but without providing any details of that complaint.
4. In response to a request by the Discrimination Commissioner for further particulars of his complaint, the complainant specified brain damage as the disability from which he suffered.
5. In support of his claim that he held a political conviction the complainant provided the Discrimination Commissioner with newspaper reports, leaflets and other material relating to the issue of homelessness in the Territory and the complainant’s role in attempting to increase public awareness of the issue and to obtain better conditions for affected persons.
The Tribunal proceedings
6. At a call-over of the complaint on 10 June 2005 the President of the Tribunal noted that the complainant had handed up the papers which he wished to rely upon (in support of his complaint) and that he had stated that he had nothing further to file.
7. It appears that at the call-over the respondent’s representative foreshadowed an application to strike out the complaint because the Tribunal ordered that the respondent file and serve any application to strike out the complaint under section 89 of the Discrimination Act by 8 July 2005. The complainant was directed to file and serve any response by the next call-over date which was fixed for 12 August 2005.
8. On 8 July 2005 the respondent’s legal representative filed an application to strike out the complaint of discrimination. It made no reference to the complaint of victimisation.
9. At the call-over of the matter on 12 August 2005 the complainant requested that summonses be issued for service on a number of government agencies requiring the production to the Tribunal of records relating to the complainant’s dental treatment. Documents were subsequently provided to the Tribunal in compliance with the summonses and the complainant was given access to them.
10. The complainant did not appear at the hearing of the strike out application on 17 October 2005 and the matter was re-listed for hearing on 10 November 2005. At that hearing the complainant advised the Tribunal that he had no objection to it dealing with the respondent’s request that the complaint of victimisation also be struck out despite the failure of the respondent to notify the complainant of its intention to do so in accordance with the Tribunal’s directions of 10 June 2005. The respondent’s representative sought, however, to tender in evidence the statements of two witnesses. The purpose of the evidence was said to be to establish an unanswerable defence under the Discrimination Act and to exclude the possibility that the respondent had indirectly discriminated against the complainant. The respondent’s representative conceded that without the statements being admitted into evidence the strike out application could not succeed. Because of the failure of the respondent to give notice to the complainant of its intention to strike out the complaint on the basis explained at the hearing, the Tribunal dismissed the complaint.
11. An application by the respondent to strike out the complaint of discrimination and the complaint of victimisation was lodged with the Tribunal on 10 November 2005 together with a statement of Ms J Reading dated 10 October 2005, a statement of Dr S Long dated 27 October 2005 and written submissions in support of the application. The complainant did not submit any response to the application within the time permitted by the Tribunal’s directions or otherwise.
12. The matter was listed for hearing on 12 December 2005. The complainant did not appear at the hearing. By letter dated 12 December 2005 the Tribunal requested the complainant to provide explanation for his failure to appear at the hearing and advised him that subject to any objection which he may have the Tribunal would proceed to consider and determine the strike out application on the basis of documents that had been made exhibits at the hearing of the strike out application on 10 November 2005 which were:
Exhibit 1: Documents produced by ACT Human Rights Office;
Exhibit 2: Complainant’s bundle of documents;Exhibit 3:Documents received under summons to ACT Health lodged with the Tribunal on 28 September 2005;
Exhibit 4:Documents received under summons to ACT Health dated 19 September 2005; and
Exhibit 5:Documents received under summons to the Community & Health Complaints Commissioner dated 30 September 2005,
and that it would also take into account:
· the complainant’s letter to the Tribunal dated 13 July 2005;
· the respondent’s written submissions dated 9 November 2005;
· the statement of Janelle Reading dated 10 October 2005; and
· the statement of Dr Stuart Long dated 27 October 2005.
13. The complainant responded by letter dated 13 December 2005 advising that he did not receive notification of a change of the date of the hearing. He confirmed that his evidence was the same as that referred to by the Tribunal in its letter dated 12 December 2005. He said that he was eligible to receive dental treatment from the respondent but that the issue of his debt to the respondent made it impossible for him to obtain that treatment.
14. By letter dated 20 December 2005 the Tribunal asked the complainant to advise whether he wished to ask any questions of Dr Long or Ms Reading and that the matter would be re-listed for hearing if he wished to do so.
15. In a response dated 28 December 2005 the complainant said that the statement of Dr Long appeared to him to be true but that he had been quoted an amount of $300 plus for dental treatment. He said that he understood little of Ms Reading’s statement. He provided the detail of conversations which he said that he had had with Ms Reading in which he contested the amount that had been proposed that he pay for dental treatment.
Other evidence
16. In reply to the request by the Discrimination Commissioner that it respond to the complaint and in records produced to the Tribunal pursuant to summonses issued by it at the complainant’s request, reference is made to abusive language directed by the complainant to staff of the respondent, the provision of priority service to him to avoid a continuation of his complaints, his refusal to produce his Centrelink card as evidence of his eligibility for access to the respondent’s dental health treatment program, the distress his behaviour caused to the respondent’s staff and the waiver by the respondent of fees for some services provided to the complainant.
17. In his statement dated 27 October 2005, Dr Long said that he had examined the complainant on 12 November 2004 and found that his four remaining lower teeth were decayed and needed to be extracted. A period of three months was, in his opinion, necessary for his gums to fully heal before taking a mould for dentures.
18. In her statement dated 10 October 2005 Ms Reading, who was the Director of the Dental Health Program during the period to which the complaint relates, explained the details of the dental health program administered by the respondent and the conditions of eligibility to access the program. She considered that it was not unusual for a period of time to elapse after extractions to allow gums to heal before further treatment was undertaken.
The law to be applied
19. The complainant relies upon section 20 of the Discrimination Act 1991 (“the Discrimination Act”) as making unlawful the alleged discriminatory conduct of the respondent of which he complains. Section 20 provides:
20 Goods, services and facilities
It is unlawful for a person (the provider) who (whether for payment or not) provides goods or services, or makes facilities available, to discriminate against another person—
(a)by refusing to provide those goods or services or make those facilities available to the other person; or
(b)in the terms or conditions on which the provider provides those goods or services or makes those facilities available to the other person; or
(c)in the way in which the provider provides those goods or services or makes those facilities available to the other person.
20. Under section 8 of the Discrimination Act a person discriminates against another person if the person treats or proposes to treat the other person unfavourably because the other person has an attribute referred to in section 7. Discrimination may also occur if the person against whom complaint is made imposes or proposes to impose a condition or requirement that has, or is likely to have, the effect of disadvantaging people because they have an attribute referred to in section 7. Discrimination does not occur, however, where the condition or requirement is reasonable in the circumstances.
21. Political conviction and disability are attributes identified in subparagraphs 1(i) and 1(j) of section 7 of the Discrimination Act.
22. Victimisation is made unlawful by section 68 of the Discrimination Act. It provides:
68 Victimisation
(1)It is unlawful for a person (the first person) to subject someone else to any detriment on the ground that the other person has—
(a)made a complaint under this Act; or
(b)instituted proceedings against any person under this Act; or
(c)given information or produced a document to a person exercising a function under or for this Act; or
(d)given information, produced a document or answered a question when required to do so under this Act; or
(e)reasonably asserted any rights that a person (including that other person) has under this Act; or
(f)alleged that a person has committed an act that is unlawful under this Act;
or on the ground that the first person believes that the other person proposes to do such an act.
(2)Subsection (1)(f) does not apply in relation to an allegation that is false and is not made in good faith.
The strike out application
23. Section 89 of the Discrimination Act, pursuant to which the present application to strike out the complaint has been made, provides as follows:
89 Application to strike out complaint
A respondent may, at any time before the tribunal begins hearing the complaint (other than a time when the complaint is being conciliated), apply to the tribunal to strike out the complaint on the ground that the complaint is frivolous, vexatious, misconceived or lacking in substance or was not made in good faith.
24. The basis of the strike out application is, in effect, that the complaint is lacking in substance because of the lack of evidence to substantiate the complaint, in particular the lack of evidence to establish a causal link between any unfavourable treatment and the complainant’s attributes. No challenge is made to the complainant’s allegation that he has the attributes claimed by him.
25. In order for the complaint to be substantiated there would need to be some evidence favourable to the complainant’s contentions which, taken at their highest in favour of those contentions, would render them seriously arguable (see Legal Aid Commissioner (ACT) & Ors v Grundy [1999] ACTSC 318). In determining whether a complaint should be struck out pursuant to section 89 of the Discrimination Act, the Tribunal ordinarily accepts that it should be assumed that the factual allegations relied on by the complainant are true and such inferences in favour of the respondent as are open should be drawn (see Grundy’s Case, paras 4 and 5). If, however, it is clear beyond doubt that the complainant has no arguable case which should be allowed to be resolved at a full hearing, a complaint may be dismissed as lacking in substance pursuant to section 89 of the Act (see State Electricity Commission v Rabel & Ors [1997] EOC 92/875). The power to dismiss a claim as without substance is required to be exercised with considerable caution (see Clean Ocean Foundation v Environment Protection Authority (2003) 20 VAR 227 at 230-231. See also Lucy Couper and ACT Housing, DT03/18 dated 22 June 2004).
26. A question arises in this case as to whether it is appropriate to entertain an application under section 89 of the Discrimination Act at this stage of the proceedings having regard to the fact that the basis of the application is that the complaint is lacking in substance and having regard also to the fact that the complainant has not sought to present the evidence on which he relies in the usual way, that is, by the calling of witnesses to give evidence on his behalf or to give evidence himself.
27. In Rabel’s Case, in holding that the Victorian Equal Opportunity Board, when exercising the power under section 44C of the Equal Opportunity Act, which is in substantially the same terms as section 89, was entitled, though not obliged, to determine the matter without receiving evidence, Tadgell JA said:
It defies logic, however, to suppose that the application might properly be determined on the footing that the complaint lacks substance for want of proof of facts that would give it substance.
He further observed:
The board ………..did conclude that the complaint was “lacking in substance” because, as I understand, there was an insufficiently solid factual foundation for it. That, of course, is a justification for dismissing a complaint after hearing the complainant’s evidence. It is not, in my opinion, a justification for ordering that a complaint be “struck out” pursuant to s. 44C – at all events without allowing evidence to be called by the complainant with a view to establishing a prima facie case.
28. At page 119 of Rabel, however, Phillips JA adverted to the possibility that a strike out application could be determined in circumstances where the complainant did concede, at some preliminary and interlocutory stage, that the whole of his material was before the Equal Opportunity Board and that material plainly demonstrated that the complaint was lacking in substance.
29. In this case the complainant has made it clear that he has presented to the Tribunal all of the material that he wished to rely on in support of his complaint. It is not, in that event, premature to deal with the strike out application.
Causation
30. The need for the complainant to establish a causative link between the alleged unfavourable treatment and any relevant attribute clearly arises from the language of section 8(1)(a) of the Discrimination Act which provides:
(1)For this Act; a person discriminates against another person if—
(a)the person treats or proposes to treat the other person unfavourably because the other person has an attribute referred to in section 7.
(emphasis added)
…………….
The existence of that requirement was also referred to by the High Court in Waters v Public Transport Commission (1991) 173 CLR 349.
31. Irrespective as to the area in which the discrimination is alleged to have occurred, it is necessary for the complainant to establish that there was conduct of the respondent that was unfavourable to him and that the true basis for the conduct was the disability from which he suffered or his political conviction.
32. The reference in section 68 to it being unlawful to subject a person to any detriment “on the ground”, inter alia, of making a complaint under the Discrimination Act also imposes a requirement for the complainant to establish a causal link between the victimisation he alleges he was subjected to and the making by him of a complaint under the Act.
33. The Tribunal has examined all of the material relied upon by the complainant in support of his complaint, including the documents specifically identified by the complainant at the request of the Tribunal, to demonstrate the existence of a causal link between his alleged attributes and the treatment of him by the respondent which he contends was unfavourable.
34. There is nothing in those documents which, in my opinion, is capable of establishing such a causal link. On the contrary, the material before the Tribunal suggests that the likely explanation for the respondent’s treatment of the complainant, in particular the refusal, on occasions, to provide him with dental treatment, was not due to his claimed attributes but rather to his non-acceptance of the treatment recommended for him by the chief dental officer, the non-payment of the amount claimed by the respondent from the complainant for the provision of dental services on other occasions and the manner which he adopted in dealing with staff of the respondent which they regarded as aggressive and threatening.
35. In response to a request by the Discrimination Commissioner that he provide further information about his complaint, the complainant conceded that he had become highly distressed when dealing with staff, particularly in relation to the dispute about the fees payable by him to the respondent. He said that “a feature of brain injury is behaviour that may appear aggressive”. The complainant’s explanation lends support to the apprehension of the respondent’s staff about the complainant’s behaviour towards them.
36. Although the complainant’s claim that he suffered a brain injury was not challenged by the respondent for the purpose of the strike out application, even if for the purpose of dealing with the application before it the Tribunal were to accept that he had such a condition, there is no reliable evidence to establish that any behaviour of the complainant which contributed to a refusal by the respondent to provide him with dental services was caused by such injury.
37. Even if there were such evidence, the decision of the High Court of Australia in Purvis v NSW Department of Education & Training [2003] HCA 62 (11 November 2003) makes it clear that it does not follow that a claim of discrimination has been established. It remains necessary for the complainant to establish that, from the point of view of the respondent, the true reason for his treatment by the respondent was the attribute from which he alleges he suffered.
38. There is a similar lack of evidence in relation to the complaint of victimisation.
39. The complaint of discrimination and of victimisation should be struck out as lacking in substance.
Indirect discrimination
40. Although not advanced by the complainant as a basis for a finding of unlawful conduct, the respondent adverted to the possibility of there being, in the circumstances of this case, a basis for argument that the complainant had been subjected to discriminatory conduct of the kind referred to in section 8(1)(b) of the Discrimination Act. It was submitted, however, on behalf of the respondent that if a finding of such conduct were to be made the Tribunal should also find that section 8(1)(b) did not apply because section 8(2) of the Discrimination Act made it inapplicable where any condition or requirement imposed was reasonable.
41. The respondent’s representative identified two circumstances as arguably involving discrimination within section 8(1)(b). First, a proposal made by an officer of the respondent on 12 November 2004 that the complainant be charged a sum of $133 payable over a period of 3 months for the dental treatment he then required. Second, the sending by the respondent to the complainant of an invoice for earlier dental treatment despite the fact that no moneys were then owing by him.
42. The distinction between the kind of discrimination dealt with by section 8(1)(b) of the Discrimination Act to that dealt with by section 8(1)(a) was explained by Beaumont ACJ in Edgley v Federal Capital Press of Australia Pty Ltd (2001) 108 FCR 1 at 17. Section 8(1)(a) is directed at unfavourable behaviour towards a person because of an attribute. It is concerned with conduct that is aimed at, or towards, the person complaining of discrimination. Section 8(1)(a) therefore addresses conduct involving direct discrimination. Section 8(1)(b), on the other hand, applies where, although the particular conduct is not aimed at a complainant, it has, or is likely to have, the effect of disadvantaging him or her because of an attribute. Section 8(1)(b) deals with cases of indirect discrimination. Section 8(1)(a) and section 8(1)(b) are mutually exclusive.
43. Both of the circumstances adverted to by the respondent’s representative as possible bases for a finding of indirect discrimination involve conduct specifically directed towards the complainant. The first circumstance involved a proposal for an arrangement for payment by the complainant for dental treatment specifically for him and on terms peculiar to him. The second involved the forwarding to him of an invoice for treatment provided specifically to him. In my opinion, neither of the circumstances involved indirect discrimination within the meaning of section 8(1)(b) of the Discrimination Act.
AUSTRALIAN CAPITAL TERRITORY
DISCRIMINATION TRIBUNAL
APPEARANCE DETAILS
To be completed by Member's Staff
________________________________________________________________________
FILE NO: DT05/198
COMPLAINANT: TONY WORRALL
RESPONDENT: ACT HEALTH
COUNSEL APPEARING: COMPLAINANT:
RESPONDENT: DR D JARVIS
SOLICITORS: COMPLAINANT:
RESPONDENT: ACT GOVERNMENT SOLICITOR
OTHER: COMPLAINANT: SELF
RESPONDENT:
TRIBUNAL MEMBER: MR M H PEEDOM, DEPUTY PRESIDENT
DATE OF HEARING: ** PLACE: CANBERRA
DATE OF DECISION: 18 JANUARY 2006 PLACE: CANBERRA
COMMENT:** NO HEARING – DETERMINED ON THE PAPERS
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