Yee v North Coast Area Health Service

[2007] FMCA 1788

FEDERAL MAGISTRATES COURT OF AUSTRALIA

YEE v NORTH COAST AREA HEALTH SERVICE & ORS [2007] FMCA 1788

HUMAN RIGHTS – Application for summary dismissal – where applicant alleged breaches of Racial Discrimination Act 1975 and Disability Discrimination Act 1992 – where applicant previously commenced proceedings in Industrial Relations Commission and Administrative Decisions Tribunal – whether applicant’s allegations covered by Deed of Release – whether reasonable prospect of success.

Racial Discrimination Act 1975
Disability Discrimination Act 1992
Human Rights and Equal Opportunity Commission Act 1986, s.46PH(1)(c)
Migration Litigation Reform Act 2005
Federal Court of Australia Act 1976, s.31A
Federal Magistrates Act 199, s.17A
Anti-Discrimination Act 1977 (NSW)
Nurses Act 1991 (NSW), ss.44, 45
Federal Magistrates Court Rules 2001, r.13.10

Gama v Qantas Airways [2006] FMCA 11
Dey v Victorian Railways Commissioner (1949) 78 CLR 62
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
White Industries Australia Ltd v Commissioner of Taxation [2007] FCA 511 Paramasivam v University of New South Wales [2007] FCA 875
Genovese v BGC Construction Pty Ltd [2007] FCA 875
Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441
Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 Duncan v Lipscombe Child Care Services Inc [2006] FCA 458
JT Nominees Pty Ltd v Macks [2007] SASC 151
Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352
Walsh v University of Technology [2007] FCA 1308
Hicks v Ruddock (2007) 96 ALD 321
Vivid Entertainment v Digital Sinema Australia Pty Ltd [2007] FMCA 157 Balding v Ten Talents Pty Ltd [2007] FMCA 145
Oorloff & Anor v Lee & Anor [2004] FMCA 893

Applicant: CHRISTINE YEE

First Respondent: NORTH COAST AREA HEALTH SERVICE

Second Respondent: NURSES AND MIDWIVES BOARD

Third Respondent: HEALTH CARE COMPLAINTS COMMISSION

File Number: SYG 3354 of 2006

Judgment of: Raphael FM

Hearing date: 4 October 2007

Date of Last Submission: 4 October 2007

Delivered at: Sydney

Delivered on: 13 November 2007

REPRESENTATION

Applicant in person

Counsel for the First Respondent: Mr S.B. Benson

Counsel for the Second and Third Respondents: Ms N.L. Sharp

Solicitors for the First Respondent: McKenzie Cox Solicitors

Solicitors for the Second and Third Respondents: Crown Solicitor’s Office

ORDERS

(1)The substantive application be dismissed pursuant to Rule 13.10 Federal Magistrates Court Rules 2001.

(2)Applicant to pay the respondents’ costs to be assessed in accordance with Rule 21.10 and Part 1 Schedule 1 of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3354 of 2006

CHRISTINE YEE

Applicant

And

NORTH COAST AREA HEALTH SERVICE

First Respondent

NURSES AND MIDWIVES BOARD

Second Respondent

HEALTH CARE COMPLAINTS COMMISSION

Third Respondent

REASONS FOR JUDGMENT

Introduction

1.This decision relates to an application brought by all respondents that the Application filed on 15 November 2006, the Points of Claim filed on 20 February 2007 and the Amended Points of Claim filed on 3 July 2007 be dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001. Rule 13.10 is in the following form:

“Disposal by summary dismissal

The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:

(a)    the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or

(b)    the proceeding or claim for relief is frivolous or vexatious; or

(c)    the proceeding or claim for relief is an abuse of the process of the Court.”

2.In these reasons I shall refer to Ms Yee, the substantive applicant, as either Ms Yee or the applicant and to the respondents to the substantive proceedings, who are the applicants in this hearing, as respondents. The respondents rely substantively on the ground contained in r.13.10(a) and, because the first respondent is represented separately from the second and third respondents and there are two applications to dismiss, I will deal with each in turn.

Narrative and history of proceedings

3.In her affidavit sworn on 31 October 2006 and filed on 15 November 2006 Ms Yee describes herself as a migrant of Chinese descent born in Hong Kong, who became an Australian citizen in 1984. She qualified as a registered nurse and worked in that capacity from 1994 until 2002. Her last employer was the first respondent. Ms Yee claimed to have received a stress injury at work on 6 December 2002 at a meeting with Dr Angelo Virgona, the assistant clinical director of the first respondent. During the course of that meeting Dr Virgona told her that she was being diverted from clinical duties pending an assessment by a psychiatrist. The Doctor’s grounds are expressed in a letter dated 13 December 2002 which forms Annexure 1J to Ms Yee’s affidavit of 31 October 2006. However, before this letter was written there was a telephone conversation between Dr Virgona and Ms Yee in respect of which notes were made by Dr Virgona. These are produced as Annexure B to Ms Yee’s submission filed on 27 September 2007. The notes state:

“Notes made from phone call to CY on 10/12… No further contact with me…
Phone call
Not sleepy
stressed
feel humiliated if I’m asked too many q’ns
Can’t come back to work till feel better
Uncertainty, people trying to cover their backs
 Want to use Chinese remedy rather than Western medicine
See Paul/c.”

4.These notes are extremely important because, notwithstanding the very many pages of submissions of “evidence” put forward by Ms Yee, they are the only independent source of any reference to race. There is no further particularisation of what was said in this conversation, although orally Ms Yee submitted that she had suggested using Chinese medicine to assist her in alleviating the problems that had been the cause of her removal from clinical duties and which, according to the letter of 13 December 2002 from Dr Virgona, included extreme distress and emotional lability, disorganisation of thought processes, auditory hallucinations and a preoccupation with the belief that she was being conspired against. It appears to have been Dr Virgona’s reaction to her suggestion that constituted the alleged racial discrimination. But notwithstanding a thorough search through all the papers that had been filed in this matter, I have been unable to come up with any document that sets out that reaction in admissible or even inadmissible form so that I could readily comprehend how it was said to have constituted discriminatory behaviour.

5.Ms Yee filed a workers compensation claim in respect of the incident on 6 December 2002 that was determined by the Workers Compensation Commission on 2 October 2003 and she continued to receive benefits thereafter. On 10 December 2002 she filed a complaint of discrimination at work with the President of the New South Wales Anti-Discrimination Board under the New South Wales Anti-Discrimination Act 1977 in respect of incidents and issues from 10 June to 10 December 2002. That complaint was referred by the President to the Equal Opportunity Division of the Administrative Decisions Tribunal of New South Wales. Some insight into the nature of the complaint is found at paragraph 9 of Ms Yee’s affidavit of 31 October 2006:

“On 5 and 6 December 2002 during work hours, at the workplace (psychiatric institution), at least 4 known co-workers (of different racial and or ethnic background) formed a gang, together had orchestrated a plot to retaliate against my complaint of workplace bullying, harassment and discrimination on the ground of OHS.  They forced me into a meeting organised by them for the unfit for duty by removal from duties.  First they shouted abuse at me, following by mocking me with a fabricated story of allegedly knowing about my family history of schizophrenic-psychotic illness, they humiliated me by accused my family suffering insanity by associate or relatives.  Their offensive behaviour had injured my name and reputation.  I suffer humiliation and emotional distress.  Copy of the departmental Apparent unfitness for duty policy was readily handed to me during meeting, for that reason the decision that removed me from duties had nothing to do with my work capacity or performance, factual circumstance is related to my complaint of discrimination.  The removal is dismissal by dispensing with the services of the employee.  Psychiatric assessment had already organised for me to attend allegedly for fitness to continue employment.  Document from the workplace indicated communication held at different locations between several senior employees associated to my complaint before, at and after the “dismissal meeting” showing management had been consulted, for that reason is retaliation.”

6.In June 2003 Ms Yee made an application to the New South Wales Industrial Relation Commission seeking relief from unfair dismissal and reinstatement.

7.After her initial suspension from clinical duties Ms Yee was referred by Dr Virgona to Dr Delaforce for psychiatric assessment. He wrote reports diagnosing her with adjustment disorder, depression and anxiety and found that she was not fit for duty. Based upon these reports the first respondent wrote to Ms Yee on 31 July 2003 requiring her to obtain treatment prior to returning to work and advising her that it had referred her case to the second respondent for assessment of her capacity to practice as a registered nurse. This action was taken pursuant to s.44 of the Nurses Act 1991 (NSW) which enlivened s.45 of that Act. The following seven paragraphs of narrative are taken from the helpful submissions of the second and third respondent. I am satisfied that they accurately represent the factual situation:

“[12] By letter dated 10 September 2003, the Board advised Ms Yee that there were two “pathways” for considering the complaint made against her by the Area Health Service. Firstly, she could choose to participate in the Impaired Nurses Program (described as the “health pathway”) or secondly, if she did not choose to do this, the complaint would be referred to the HCCC for investigation (described as the “disciplinary pathway”). These options were available to the Board by virtue of s.45(1) of the Nurses Act as it was at the relevant time. That provision provided:

“The Board must, as soon as practicable after a complaint is lodged with the Registrar or the Board had decided to make a complaint:

(a)refer the complaint to an Impaired Nurses Panel, a Committee or the Tribunal (which is to be constituted in accordance with this Act to deal with the complaint), as the Board thinks fit, despite any previous action;

(b)direct the accredited nurse to attend for counselling, or

(c)determine that no further action should be taken, except where the Board has decided to make the complaint.”

[13] Ms Yee refused to participate in the Impaired Nurses Program. On 19 February 2004, the Board wrote to Ms Yee directing her to attend a medical examination. This was a compulsory direction as by this stage it was apparent that, despite numerous invitations, Ms Yee was not willing to undertake the Impaired Nurses Program. It is to be noted that the Board was empowered to make this direction pursuant to s.45(5) of the Nurses Act. At the relevant time, s.44(5) provided:

“The Board may, before taking any action under this section, require the nurse concerned by notice in writing given personally or by post to the nurse, to undergo at the Board’s expense a medical examination:

(a)by a registered medical practitioner,

(b)at a reasonable time and place,

specified in the notice.”

[14] Ms Yee failed to comply with the Board’s direction under s.45(5). Thus, in March 2004 the Board resolved to refer the matter to the HCCC for investigation. Again, it was empowered to make this referral by s.45(1)(a) when read together with s.46 of the Nurses Act.

[15]  At this point the HCCC became involved.  The HCCC wrote to Ms Yee on 5 May 2004 inviting her to respond to the complaint that had been referred to it by the Board.  The HCCC investigated the matter and by letter dated 1 September 2004, wrote to Ms Yee advising her that it proposed to refer the following matters to the Nurses Tribunal for consideration:

(a)that she suffered from an impairment within the meaning of s.4A of the Health Care Complaints Act 1993 (NSW) (“Health Care Complaints Act”);  and

(b)that she failed to comply with the 19 February 2004 direction of the Board that she attend a medical examination (which was professional misconduct).

Ms Yee was invited to make submissions to the HCCC as to why it should not adopt this proposed course.  Ultimately, in late December 2004, the HCCC did refer those matters to the Nurses Tribunal.

[16] In the meantime, the Area Health Service had on around 5 November 2004 terminated Ms Yee’s employment due to her medical condition.  The Area Health Service asserted that it had been trying to locate suitable alternative work arrangements for her but that it had not, in its discussions with her, been able to locate a suitable opportunity for her.  By this time, Ms Yee had been diagnosed with “lupus” (a condition which she was diagnosed with in around September 2004).  It is noted that Ms Yee has conceded that she is no longer fit to practice as a nurse.

[17] The Nurses Tribunal (by that time know as the “Nurses and Midwives Tribunal”) (“Tribunal”) considered the complaint against Ms Yee which had been referred to it by the HCCC.  On 13 January 2006, the Tribunal found that Ms Yee suffered from a mental and physical impairment which affected her capacity to practise as a nurse, and also found that she failed to attend the medical examination which the Board had directed her to attend.  In the result, the Tribunal made orders directing the removal of Ms Yee’s name from the Register and directing her not to apply for re-registration for two years.  Ms Yee has not sought to sue the Tribunal in these proceedings.

[18] Shortly after that, on 30 January 2006, Ms Yee made a complaint to HREOC against all three Respondents alleging unlawful discrimination on the grounds of race and disability. On 24 October 2006, HREOC terminated Ms Yee’s complaint against both the Board and the HCCC on the ground that the complaints lacked substance.  In each case, HREOC noted that the Applicant had not provided any evidence of any occasion where they discriminated against her on the grounds of her race.  Shortly thereafter, on 15 November 2006, Ms Yee commenced her application in this Court.”

It is important to note that the Nurses Tribunal is not a respondent to these proceedings.

8.On 21 May 2004, following a conciliation conducted at the IRC, Ms Yee entered into a Deed of Settlement with the first respondent. The Deed, which had attached to it a Schedule comprising Terms of Settlement and a policy statement relating to the redeployment of occupationally injured employees, recited the IRC proceedings and also the Equal Opportunity Division of the ADT proceedings. One of the Recitals to the Deed is in the following terms:

“F  Without admission the parties have agreed to settle all matters arising from or in connection with the Employment, the IRC proceedings and the ADT Proceedings, on the terms of this Deed.”

The Deed included a payment to Ms Yee pursuant to which she undertook to discontinue the IRC and the ADT proceedings and release and discharge the first respondent

“ … from claims which either party has or may have against the other party arising out of, incidental to, or in connection with:

– the IRC proceedings; and

– the ADT proceedings.”

9.In the Terms of Settlement it was agreed that Ms Yee would attend the first respondent’s return to work service, and if no position could be found within six months her employment would be terminated. There is an additional clause of some importance:

“6. Following the psychiatric Assessment referred to in paragraph 3 above, the MNCAHS will correspond with the Nurses Registration Board and advise that the MNCAHS has received varying assessments of Ms Yee’s psychiatric capacity.  There have been inconsistencies of those assessments and as a consequence the MNCAHS no longer wishes to pursue a complaint against Ms Yee.”

The Deed contained the following clause:

“The Employee warrants that:

1.1 She has read the terms of this Deed;

she has had the opportunity to consider the terms in effect of this Deed to her satisfaction;

MNCAHS has not made any promise, representation or inducement or been a party to any conduct material to the Employee entering into this Deed other than as set out in this Deed; and

she is aware that MNCAHS is relying on these warranties.”

10.During the six months following the agreement between Ms Yee and the first respondent, the first respondent says that she was offered three administrative or clerical positions but that she did not attend the return to work program. As a result, her employment was terminated pursuant to clause 5 of the Terms of Settlement.

11.On 15 November 2006 the applicant filed an application in Form 167 with this court. She also filed an Information Sheet as required and a lengthy affidavit with exhibits. Ms Yee also filed part of the notice of termination from the Human Rights and Equal Opportunity Commission (“HREOC”) but not all of it.

History in the Federal Magistrates Court

12.Following the filing of the proceedings the matter first came before me on 15 December 2006. I set it down for a first directions hearing on 6 February 2007. On that day I referred the matter to mediation, which took place on 15 June 2007 before Registrar Lackenby. The matter was not resolved and it was referred back to me for further directions which were given on 25 July 2007. Prior to the mediation I had requested the applicant to file a Points of Claim. I explained to her how this should be done by reference to the particular sections of the Racial Discrimination Act 1975 and Disability Discrimination Act 1992 that she alleged had been infringed by the respondents. I explained that if she did that properly then it would be much easier for the matter to be resolved at the mediation that I ordered should take place. A Points of Claim was filed on 20 February 2007. The applicant filed an Amended Points of Claim on 3 July 2007 shortly after the mediation date as requested by the respondents at the mediation. It is fair to say that the respondents felt that the Amended Points of Claim was even less helpful than the original Points of Claim. At a directions hearing held on 25 July 2007 I ordered that the respondents file Points of Defence and file affidavit evidence before having the matter restored on 25 September 2007. The respondents considered the Amended Points of Claim again and concluded that they were unable to respond to them so the matter came before me on 20 August 2007, at which time the respondents flagged their intention to bring the current applications to strike out. Appropriate directions were then made.

The first respondent’s application

13.The first respondent notes that in the complaint to HREOC, which is a prerequisite for any proceedings in this court, there is reference to the following complaints:

(i) Racial vilification between 10 December 2002 and 5 November 2004;

(ii)Racial discrimination from 10 December 2002 to 5 November 2004;

(iii)Racial discrimination related to the basis for the termination of her employment on 5 November 2004;

(iv)Disability discrimination from 10 December 2002 to 5 November 2004;

(v)Disability discrimination related to the basis for the termination of her employment on 5 November 2004;

(vi)Racial and disability discrimination relating to an alleged failure by the First Respondent to discharge certain obligations under a Deed of Release between the parties dated 21 May 2004;

(vii)The alleged discrimination constituted victimisation as it was motivated by the Applicant’s complaint to the NSW Anti-Discrimination Board on 10 December 2002.

The first respondent says that in relation to the first complaint of racial vilification HREOC had sought particulars from the applicant which had not been provided. The applicant did not deny this. HREOC concluded that the applicant’s complaint on this ground was lacking in substance and was terminated pursuant to s.46PH(1)(c) of the Human Rights and Equal Opportunity Commission Act 1986. The applicant argues that if there are no details of the complaint then it is not a proper complaint which can be entertained by HREOC. If the complaint cannot be entertained by HREOC because of its inadequacies then it falls outside the jurisdiction of the court by virtue of s.46PO(3) which states:

“(3)  The unlawful discrimination alleged in the application:

(a)         must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or

(b)      must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.”

I think there is much force in this argument because, as I said in Gama v Qantas Airways [2006] FMCA 11 at [9]:

“The Federal Court and the Federal Magistrates Court have considered in the past what constitutes an allegation that is the same (or the same in substance) as the unlawful discrimination that was the subject of the terminated complaint or what unlawful discrimination arises out of the same or substantially the same acts, omissions or practices that were the subject of a terminated compliant in Charles v Fuji Xerox Australia Pty Ltd [2000] 105 FCR 573; Travers by her next friend, Travers v New South Wales [2000] FCA 1565; Bender v Bovis Lend Lease Pty Ltd [2003] 175 FLR 446. In Charles and Bender reference was made to the Senate Explanatory Memorandum for the Bill. What one can extract from these decisions is that a party can make an allegation that a particular act referred to in the complaint constitutes a different breach of an Anti-Discrimination Act than that originally alleged or possibly even considered by HREOC. It is also clear that what constitutes the "complaint" is not just the written document but all those facts and matters which are before the Commission prior to the determination. But the allegations made in proceedings cannot be substantially wider or begin substantially earlier than those initially complained of. The purpose of the preliminary consideration of a complaint by HREOC is to try and resolve issues without the necessity for court intervention. The process adopted by the Commission is to obtain all necessary details of the allegations from a complainant and then put them to the respondents. This gives the respondent an opportunity to reply and the Commission an opportunity to move towards a conciliation of the issues. If the Commission succeeds in its task it will have provided the parties with a number of benefits including ones which are both emotional and financial. By preventing parties from raising new issues in any court proceedings following a terminated complaint the legislation attempts to ensure that all issues are raised at the early stage. For something to arise out of the same facts or circumstances it is not enough that it arises out of the same general allegation. There must be a close connection between what was told to the Commission and what is alleged in the court proceedings. A new incident, even if it is an incident of the same type as advised to the Commission, would be unlikely to pass this test because, if unknown at the time of the attempted conciliation, it could not have been part of it.”

Whilst I accept there will always be difficult cases in which some details are provided that a respondent argues are not sufficient, this is not such a case. No details were provided at all. I am unable to see how the court can be seized of such a dispute.

14.The second dispute raises allegations of racial discrimination between 10 December 2002 and 5 November 2004. The HREOC determination was that the complaint up to 21 May 2004 had been adequately dealt with by the proceedings in the IRC and the NSW ADT. There is annexed to these reasons a schedule in which I have set out the allegations made in the applicant’s Points of Claim, Amended Points of Claim and submissions. There is found in bold the only references to allegations of either racial or disability discrimination contained in those documents. There is a lot more in those documents, but it is confused and difficult to comprehend. It will be seen that substantively the allegations come back to Ms Yee’s interview with Dr Virgona on 6 December 2002, a telephone conversation with him on 10 December 2002 and his letter of 13 December 2002. All these matters were the subject of the complaints to the IRC and to the ADT and they must fall within the ambit of the Deed of Release. I am satisfied that, provided the Deed of Release is capable of being enforced by the first respondent, it can be relied on to constitute a bar to the current proceedings.

Summary disposal

15.Rule 13.10 of the Federal Magistrates Court Rules 2001 is a reflection of s.17A of the Federal Magistrates Act 1999, which was inserted into the Act in 2005 by the Migration Litigation Reform Act 2005. That Act also amended the Federal Court of Australia Act 1976 with an equivalent provision at s.31A; the only difference being that s.31A applies only to proceedings commenced after 1 December 2005. The Explanatory Memorandum for s.17A of the Federal Magistrates Act is in identical terms to the Explanatory Memorandum for s.31A of the Federal Court Act and provides that a proceeding “need not be hopeless or bound to fail for it to have no reasonable prospect of success”, signifying a movement away from the principles enunciated in Dey v Victorian Railways Commissioner (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; cases which, the Explanatory Memorandum indicated, “demonstrate the great caution which the courts have exercised in regard to summary disposal, limiting this to cases which are manifestly groundless or clearly untenable”.

It has been accepted by the Federal Court that, as articulated by Lindgren J in White Industries Australia Ltd v Commissioner of Taxation [2007] FCA 511 at [54]:

“Under s.31A I must be satisfied that the applicants have no reasonable prospect of success, but as s.31A makes clear, this does not mean that I must be satisfied that the proceeding is hopeless or bound to fail. I suggest that the legislature’s intention was to lower the bar for summary dismissal below the level that had been fixed.”

See also Paramasivam v University of New South Wales [2007] FCA 875 at [14]; Genovese v BGC Construction Pty Ltd [2007] FCA 875 at [5] per Gilmour J; Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441 at [23] per Tracey J.

Support can also be found for the statement of French J in Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401, where his Honour disagreed with Heerey J’s view in Duncan v Lipscombe Child Care Services Inc [2006] FCA 458 that “[s]ection 31A was introduced to establish a lower standard for strikeouts”. French J considered that s.31A “allows for “judgment” or nothing” at [21]; see also JT Nominees Pty Ltd v Macks [2007] SASC 151 at [81] per Bleby J.

A detailed consideration of the operation of s.31A was undertaken by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 where his Honour reviewed several relevant authorities and stated at [44]-[45]:

“In a case to which s.31A applies, where there is a real issue of fact to be decided in the sense identified in the above principle, and, possibly, where there is a real issue of law of a similar kind, it is obviously appropriate that the matter goes to trial. And one must be mindful that in Hocking v Bell (1945) 71 CLR at 487, Dixon J said that in effect, every judge who had heard the matter (through four trials, two Full Court appeals and, to that point, the appeal to the High Court) would have formed the view that the plaintiff should have failed had they been able to decide the facts, yet the Privy Council restored the second jury verdict in her favour and so concluded the litigation. This raises a very real question, as to what reasonable prospects are for present purposes.

I am of opinion that in assessing what reasonable prospects of success are for the purposes of s.31A, the Court must be very cautious not to do a party an injustice by summarily dismissing the proceedings where, in accordance with the principles in Hocking v Bell (1947) 75 CLR 125, contested evidence might reasonably be believed one way or the other so as to enable one side or the other to succeed. As soon as the evidence may have such an ambivalent character prior to a final determination, I am of opinion that then, as a matter of law, at that point there are reasonable prospects of success within the meaning of s.31A. Unless only one conclusion can be said to be reasonable, the moving party will not have discharged its onus to enliven the discretion to authorize a summary termination of the proceedings which s.31A envisages. In moving the second reading of the bill introducing s.31A (the Migration Litigation Reform Bill 2005) the Attorney-General said that it strengthened ‘ … the power of the courts to deal with unmeritorious matters by broadening the grounds on which federal courts can summarily dispose of unsustainable cases’.

Similarly, in Walsh v University of Technology [2007] FCA 1308 Rares J stated at [11] that “[o]nce evidence could have an ambivalent character, prior to final determination at a trial, then as a matter of law there are reasonable prospects of success within the meaning of s.31A”; see also Hicks v Ruddock (2007) 96 ALD 321 at 329 [13] per Tamberlin J.

16.The Federal Court authorities regarding the construction of s.31A have been adopted by this court in relation to the construction of s.17A and rule 13.10: see, for example, Vivid Entertainment v Digital Sinema Australia Pty Ltd [2007] FMCA 157 per Driver FM; Balding v Ten Talents Pty Ltd [2007] FMCA 145 per Lucev FM.

17.The following principles, to be applied in the Federal Magistrates Court in dealing with an application for summary dismissal against a litigant in person, were succinctly set out by Walters FM in Oorloff & Anor v Lee & Anor [2004] FMCA 893 at [49]:

[49]  I also agree with the summary of the law in relation to this subject set out in paragraphs 1 to 12 of the written submissions prepared by Mr Redd (on behalf of Ms Lee):

…

4.In the context of discrimination legislation, both the Federal Magistrates Court and Federal Court have emphasised that the power to summarily dismiss a matter must be exercised with ‘exceptional caution’ and be ‘sparingly invoked’.  In particular, the power should be used with great care when the litigant is unrepresented.

5.The Federal Court has also held, however, that

‘Whilst circumspection is appropriate, if the evidence before the Court establishes that if the matter were to go to trail in the ordinary way the application must fail then a case for summary dismissal of the proceedings is made out.’

6.Lehane J in Travers obo Travers v New South Wales affirmed the view of Sir Ronald Wilson in the HREOC decision of Assal v Department of Health, Housing & Community Services that:

‘it is in the public interest, as well as the interests of both parties, that the hearing of a complaint which is clearly shown to be lacking in substance should be summarily terminated.  Certainly, it is no kindness to a complainant to shrink from the exercise of the power … in circumstances where that exercise is clearly warranted.’

7.      Lehane J added:

That is especially so, perhaps, in this Court where an unsuccessful litigant, if proceedings are protracted, may face what can be the considerable burden of a costs order.

8.Special considerations apply in applications for summary
dismissal with an unrepresented litigant.  Sackville J in Re Morton; Ex parte Mitchell Products Pty Ltd surveyed the authorities and noted that the Court:

“must … have regard not merely to the litigant in person but also to the position of the other party or parties concerned and to what is required, in justice, to prevent the unnecessary expenditure of public and private resources.

9.In conclusion, at 514 Sackville J quoted with approval the words of Mahoney JA in Rajski v Scitec:

“Where a party appears in person, he will ordinarily be at a disadvantage. That does not mean that the court will give to the other party less than he is entitled to.  Nor will it confer upon the party in person advantages which, if he were represented, he would not have.  But the court will, I think, be careful to examine what is put to it by a party in person to ensure that he has not, because of lack of legal skill, failed to claim rights or put forward arguments which otherwise he might not have done.”

10.Both the Federal Magistrates Court and the Federal Court have made it clear that the onus in a summary dismissal application is on the respondent, who must establish ‘a high measure of satisfaction in the Court that the proceedings are of a character that they should be dismissed.’

11.In determining whether there is an arguable case, the Court is not limited to considering the arguments put before it by the party defending the application, but may look at all the material to assess independently whether an arguable case based on the material could be made out.”

18.In her submissions to me at the hearing Ms Yee indicated that she believed that the first respondent had breached the terms of the Deed and that she was therefore entitled to reactivate claims which had been made in the ADT. She argued that the first respondent had represented to her that the chain of events that led to the proceedings before the Nurses and Midwives Board would be stopped as a result of the letter which it agreed to write pursuant to paragraph 6 of the Terms of Settlement. The applicant provided no particulars of who made this representation or the actual words used, and any such representation seems to be covered by the warranty in the Deed previously extracted at [9]. It has not been suggested to me that the letter was not written and therefore, prima facie the Deed was complied with by the first respondent, and should be available to it to ground an application such as the one currently before me. The applicant has been unable to show me any allegation of racial discrimination after 5 November 2004, the date her employment was terminated.

19.The third and fifth claims are of racial and disability discrimination on the termination of the applicant’s employment. The applicant’s employment was terminated on 5 November 2004 by letter of 20 October 2004 (Annexure 1G, page 34 to applicant’s affidavit of 31 October 2006). References to the racial discrimination claim are made only at page 16 of the applicant’s Amended Points of Claim where the applicant alleges that she was prevented from being offered a position allowing for “clinical duties” apparently “ … by reason of the Chinese race”. She refers to the dates “either on 6/12/02 or dated 20/10/04”; the first date relating to the temporary removal from clinical duties and the second relating to the termination of her employment.

Beyond this allegation, no further particulars of any events that might have occurred or anything that might have been said are provided, though Terry Clout, CEO of the first respondent, and Dr Virgona are identified as the individuals who may have perpetrated this discrimination. This allegation is further confused by the applicant’s statement at page 3 of her submissions filed 27 September 2007 that she “never said her racial background was the reason the Area Health Service was “non-compliance” to the deed dated 21/5/04”. The applicant does not identify any connection between her dismissal and any racial discrimination that may have occurred.

20.The fifth claim is disability discrimination on the termination of the applicant’s employment. In relation to this claim, it is probably most clearly dealt with in the applicant’s affidavit of 31 October 2006 at paragraphs 16-17. The applicant states that in June and July 2004, the first respondent required that she make applications for positions for her redeployment and that “because of suffering an ongoing injury and medical condition” she was not able to comply, presumably by not applying for the positions. She alleges that in July 2004, the first respondent received information from a Dr Wade regarding the applicant’s medical condition and functional capacity. This document is Annexure 1G, page 33 to Ms Yee’s affidavit. She states that by September 2004, her health was deteriorating and blood tests confirmed that she had lupus, then stating that:

“After knowing about my disability, the AHS offered me employment termination by letter dated 20 October 2004.  The AHS provided me no opportunity for redeployment”.

The applicant appears to be alleging that after being made aware of Dr Wade’s diagnosis, the first respondent terminated her employment on the basis of her disability without giving her an opportunity to return to work. This is not the case. Dr Wade’s assessment indicated that Ms Yee was not fit for pre-injury duties, i.e. clinical duties. The assessment had nothing to do with the applicant’s lupus condition, which appears to have been kept to herself. Ms Yee herself has acknowledged that she is no longer fit to practice as a nurse (at Annexure 3W of her affidavit of 31 October 2006).

The other references to the termination of the applicant’s employment in 2004 are at paragraph 38 of her affidavit where she states that the first respondent “failed to relocate me to perform suitable work, instead it had offered me termination letter (20/10/04), the letter indicated no opportunity for me to be redeployed” and again at [41]:

“The termination is unlawful on the ground of disability and racial discrimination.  Disability discrimination involving harassment in employment and victimisation.” 

Again, there is only a bald allegation without any particularisation of the connection between the decision to terminate and the condition, let alone any pleading that shows how she might seek to establish “less favourable treatment” or the comparator.

21.The actual termination of employment took place on 20 October 2004 in accordance with the Deed of Settlement that relevantly provided:

“1. Ms Yee will attend the MNCAHS return to work service, to identify the availability of redeployment options, the process will be conducted in accordance with the MNCAHS policies and procedures (attached) with respect to the redeployment of occupationally injured employees.  The MNCAHS return to work service provider will be a person who has had no prior dealings with Ms Yee.

…

3. Ms Yee will attend for psychiatric assessment of her psychological capacity to perform the identified redeployed function.  Such psychiatric assessment will be undertaken by a psychiatrist who does not practice within the MNCAHS.  Costs of this assessment will be born[e] by MNCAHS.”

Ms Yee did attend a medical assessment (see Annexure 1G page 33 to Ms Yee’s affidavit of 31 October 2006) before Dr Wade on 7 July 2004 which was organised by the first respondent, as outlined in Ms Yee’s affidavit of 31 October 2006 at [17]. The medical certificate indicated that Ms Yee was fit for suitable duties from 25 June 2004 to 25 September 2004 for a period of 4 hours per day, 3 days per week, but also indicated that Ms Yee was not “fit for pre-injury duties”. The accepted evidence is that Ms Yee did not attend the return to work service although the first respondent did identify 2 or 3 positions of an administrative nature. She declined to take up those positions and her employment was terminated purportedly pursuant to clause 5 of the Deed of Settlement after 6 months. In actual fact, her employment was terminated 3 weeks prior to the conclusion of the 6-month period; however there is nothing in Ms Yee’s submissions, Points of Claim, Amended Points of Claim or affidavits about this point, nor in the first respondent’s submissions. Given the paucity of detail connecting that action with discriminatory behaviour and the opportunities that have been offered to provide it I am satisfied that the claim under this heading has no reasonable prospect of success as now defined. This is not a case of evidence having an ambivalent character. There is simply no evidence identified that might make out the constituents of the statutory breach.

Disability discrimination from 10 December 2002 to 5 November 2004

22.The disability discrimination alleged by the applicant against the first respondent occurred prior to 21 May 2004. To that extent it is covered by the Deed of Release. I have been unable to find any comprehensible allegation against the first respondent in the six months prior to the termination of the applicant’s employment.

Race and disability discrimination relating to the Deed of Release

23.The applicant does not provide any clear or comprehensible indication of why she says that the first respondent’s alleged breach of the Deed of Release is causally connected to either her race or her disability. I have already made a finding that on the information before me there was no breach of the Deed by the first respondent because the applicant acknowledged in the document that no representations had been made by AHS, and she has not provided even a prima facie case that the first respondent did not write the letter it was required to write under paragraph 6 of the Terms of Settlement.

Victimisation

24.The applicant’s Amended Points of Claim at page 7 allege she was victimised by the first respondent. The applicant appears to make this allegation under s.50 of the Anti-Discrimination Act 1977 (NSW) as follows:

·she was victimised on the ground that she commenced proceedings against the first respondent in the ADT and the IRC;

·she was victimised on the ground that she gave evidence against the first respondent by lodging a complaint at the Anti-Discrimination Board;

·she was victimised because she alleged that the first respondent discriminated against her on the basis of race and/or disability;

·she was victimised because the first respondent knew that the applicant intended to make a complaint of racial discrimination.

In all the instances outlined above, the applicant appears to identify Mr Terry Clout, CEO of the first respondent, as the perpetrator. The applicant then refers to her affidavit of 31 October 2006 but the only reference to “victimisation” in that document is a reference to the IRC proceedings at [13]:

“In June and August 2003 I made applications for relief from unfair dismissal and reinstatement of injured worker and relief from victimisation to the NSW Industrial Relations Commission ‘IRC’”.

The applicant goes some way towards detailing these allegations in paragraph 19 of her affidavit of 31 October 2006:

“My complaint of victimisation is based on the ground that I had or have brought, or propose to bring, proceedings or proposes to assert, any of my rights under the DD Act.  In fact on 10 December 2002, I had made an allegation to the president of ADB under the AD Act that the (ex)employer AHS had or has done an act that is unlawful by reason of a provision of Part 2 of the DD Act under the state laws.”

The applicant also says at paragraph 20 that after she lodged a complaint with the Anti-Discrimination Board on 10 December 2002, the first respondent made up a story about her having schizophrenia. A chain of events after this caused further damage to her mental health, resulting in a secondary physical disability. On 20 October 2004, her employment was terminated due to her medical condition, though it is not clear whether the applicant means her “lupus” condition or the condition that the applicant alleges the first respondent to have fabricated, nor whether she considers the actual termination part of the victimisation. Beyond this, no further particulars of any events that might have occurred are provided; particularly how this apparent fabrication which occurred two years prior to her dismissal was related to her dismissal, or how it might be related to the lodging of a complaint at the Anti-Discrimination Board.

To say in a pleading that you have been victimised on particular grounds goes some of the way toward establishing a claim that should be litigated. But I do not think it goes far enough. How does the allegation stand in the light of the Deed of Release and large payment to the applicant? How does the applicant bring her complaints, made under the NSW Act, in a Federal Court? Victimisation under the Commonwealth Acts is restricted to complaints made under Commonwealth Acts (see s.42 of the Disability Discrimination Act and s.27 of the Racial Discrimination Act).  None of these questions were answered in submissions. If the applicant had not had two opportunities to put these concerns to rest in her Points of Claim and Amended Points of Claim I would have allowed her a further attempt. As it is, I feel that the pleading is an embarrassment and would strike it out.

25.I am satisfied that to allow these proceedings to continue against the first respondent would be wrong. Trying as hard as I can, with eyes squinted to dispel the fog of incomprehension arising from all of the pleadings and affidavits filed in this case, to date I can only see the possibility of a claim arising out of the allegation against Dr Virgona as an employee of the first respondent for his treatment of the applicant during December 2002 and the asserted activities of the first respondent’s staff extracted at [5] of these reasons. If the applicant had not brought proceedings in the ADT of New South Wales and had not signed the Deed of Release I would have been prepared to give her one further opportunity to clarify those allegations so that, if they could do so, they were fitted within the constituents of either disability or racial discrimination or both. But these allegations are so much part of the ADT proceedings and the applicant’s employment that they must clearly have been covered by the Deed of Release, a fact which is not denied by the applicant. She received a substantial sum of money on signing that document and has made only an unsubstantiated allegation that it was breached by the first respondent based upon alleged representations that are expressly negated in the Deed itself. I would therefore dismiss the applicant’s substantive claim against the first respondent because I am satisfied that if the application were to proceed it must fail.

The second and third respondents

26.These two respondents are independent statutory authorities. Neither was an employer of Ms Yee, nor could they be said to be the agents of the Area Health Service, which was her employer. At the relevant time, s.44 of the Nurses Act 1991 provided that a complaint could be made that an accredited nurse suffered from an impairment. The Area Health Service was a “person” that was entitled to make such a complaint and it had done so following receipt of Dr Delaforce’s report in July 2003. The Board also had power to consider a complaint that a nurse did not have sufficient physical or mental capacity to practice nursing and it can be presumed that the complaint made by the Area Health Service was on this ground as well. Once a complaint is made, s.45 of the Nurses Act was enlivened. In this case s.45(1) is relevant:

“(1)      The Board must, as soon as practicable after a complaint is lodged with the Registrar or the Board has decided to make a complaint:

(a)   refer the complaint to an Impaired Nurses Panel, a Committee or the Tribunal (which is to be constituted in accordance with this Act to deal with the complaint), as the Board thinks fit, despite any previous action taken by the Board or the Commission, or

(b)  direct the accredited nurse concerned to attend for counselling, or

(c)   determine that no further action should be taken, except where the Board has decided to make the complaint.”

27.Ms Yee was asked to participate in the Impaired Nurses Program but she refused. On 19 February 2004 the Board wrote to Ms Yee directing her to attend a medical examination pursuant to clause 45(5). Ms Yee’s failure to attend the medical examination constituted evidence that she did not have sufficient physical and mental capacity to practice nursing (s.45(6)) and her actions allowed the Board to refer a complaint to the Health Care Complaints Commission (“HCCC”) for investigation. This occurred in March 2004.

28.Once the matter was referred to the HCCC, Ms Yee was asked to respond to the complaint. The HCCC investigated the matter and by letter dated 1 September 2004 wrote to Ms Yee advising her that it proposed to refer the following matters to the Nurses Tribunal for consideration:

a. That she suffered from an impairment within the meaning of s.4A of the Health Care Complaints Act 1993 (NSW) (“Health Care Complaints Act”); and

b. She failed to comply with a 19 February 2004 direction of the Board that she attend a medical examination, such failure constituting professional misconduct.

The reference took place in December 2004.

29.It was the Nurses Tribunal that took the disciplinary action against Ms Yee and found her unfit to continue as a registered nurse. Although the reference by the HCCC to the Tribunal was made after Ms Yee signed the Terms of Settlement with the first respondent, no explanation has been given as to why the matter proceeded when, she argues, it was clearly the intention of the parties that it should not. But in order for Ms Yee to have some cause of action against the second and third respondents, she would have to tie their continuing conduct into a form of discriminatory behaviour.

30.Those acting for the second and third respondents have produced in their helpful written submissions a chronology which will be kept with the papers and which indicates in bold the ‘evidence’ produced by Ms Yee which involves either the second or third respondent. In those submissions the second and third respondents also analyse the ‘pleadings’, which consist of the Form 167 and the Amended Points of Claim, in respect of which they say:

“31.        The Form 167 by which Ms Yee commenced proceedings makes no allegations of unlawful discrimination against either the Board or the HCCC.  All the Form 167 does is allege in the most general way that the Board and the HCCC “were acting or purporting to act” on behalf of her employer, the Area Health Service.  No attempt is made to set out how they allegedly acted on the employer’s behalf.

32. Further, the Form 167 fails to identify the provisions of the DDA and RDA in which the Board and the HCCC are said to have contravened.  All the Form 167 does is allege discrimination “under provisions of part 1, 2, 2A of RD Act and also provisions or part 1, 2 of DD Act.”  This omission is significant.  It is difficult to see which particular sections of either Act could apply to the Board or the HCCC.  In particular, they were never her employer.  There is a real question whether there could be any cause of action against them.  Further and in any case, the Board and the HCCC should not be left to guess at the statutory provisions which are relevantly alleged to confer a cause of action against them.

The Amended Points of Claim

33. The Amended Points of Claim extends for 38 pages and comprises an incoherent patchwork of quotes from documents (often unidentified or unsourced), statements of opinion, and recitation of statutory provisions (including entirely irrelevant ones such as provisions of the Privacy Act 1988 (Cth) and the Trade Practices Act 1974 (Cth). The Amended Points of Claim are oppressive in both their form and content. It is not possible for the Respondents to be on notice of the case they need to meet. Pages 19 onwards of the Amended Points of Claim, which purport to make allegations against the Board and the HCCC, simply make no sense. Indeed, the weight of Ms Yee’s complaint against the Board appears to be that it collected personal information about her in alleged contravention of the Privacy Act 1988 (Cth). It is impossible to distil any allegations which would be actionable under the RDA or the DDA.”

I accept these submissions in regard to the opacity of the pleadings. But given that the applicant is a self-represented litigant I have also had regard to the evidence produced by Ms Yee to see whether some allegation of discriminatory activity was alleged. I accept the submission of the second respondent contained in paragraph 28 of its written submissions:

“It is further submitted that, particularly when regard is had to Ms Yee’s evidence, it is clear that no case properly arises against the Board and the HCCC.  As such, this is not a case where it is possible to put the application into proper form.  The problem in this case is one of substance.  This is not a case where a prima facie case is apparent in the evidence.  Moreover, the Board and the HCCC rely on Sackville J’s observations in Re Morton; Ex parte Mitchell Products Pty Limited (1996) 21 ACSR 497 at 514:

“the Court must have regard not merely to the litigant in person but also the position of the other party or parties concerned and what is required, in justice, to prevent the unnecessary expenditure of public and private resources.”

It can be seen that these complaints do not take into account the responsibilities that the Board had once the HCCC had referred the matter to it. But more importantly, as outlined in the submissions of the second and third respondents, none of those allegations “in any way embodies an allegation that the Board discriminated against her on a proscribed ground – relevantly, race or disability”. Ms Yee has not drawn the required causal connexion between the actions of the Board and her race or alleged disabilities.

31.Insofar as Ms Yee has made complaints against the HCCC, she appears to be alleging that that Commission acted on behalf of the first respondent or as its agent in connection with her dismissal. But that is simply not the fact. Not only is the Commission an independent statutory authority with obligations under its Act, but Ms Yee’s employment was terminated by the first respondent in accordance with the agreement which she signed with it. There is a complaint that the Commission failed to conduct a fair or proper investigation into two complaints of malpractice which she had made against Dr Virgona but the causal connexion between her race or her disabilities was not drawn.

32.Ms Yee also makes an allegation that the second and third respondents ‘fabricated’ a complaint to HCCC. This claim was not made to HREOC and in any event is claimed to be ‘corrupt conduct’ and not tied to any allegation of discriminatory behaviour.

33.The second and third respondents argue that Ms Yee has put on absolutely no evidence which will support a conclusion that they discriminated against her on the basis of her race and/or disability and even if her affidavits were taken at their highest the complaints of discrimination on prescribed grounds against those two respondents are doomed to fail. It is appropriate that a court should dismiss an application where the required nexus is not drawn in any pleading or even intimated in any evidence that has been filed prior to the hearing of the application for summary dismissal. I am of the view that I should dismiss this claim as required by Rule 13.10(a) of the Federal Magistrates Court Rules 2001 because I am satisfied that the party prosecuting it has no reasonable prospects of successfully prosecuting it.

34.The court is of the view it has taken all reasonable steps to accommodate Ms Yee in the prosecution of her claims. She has had the requirements of pleadings explained to her on several occasions. She has had the opportunity to produce the Points of Claim and the Amended Points of Claim, but the documentation produced by her does not address the issues that are required to be addressed by either the Racial Discrimination Act or the Disability Discrimination Act. The respondents have been patient, but it is now time to bring this matter to a close. I dismiss the substantive claim against the second and third respondents.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:  

Date:  13 November 2007

SCHEDULE

SYG3354/2006 - Christine Yee v North Coast Area Health Service & Ors
References to First Respondent (North Coast Area Health Service)

Document: Points of Claim filed 20 February 2007

Reference

Event

P. 1 para 1

Alleges disability discrimination by Terry Clout (CEO of NCAHS) on 6/12/03 – that AHS fabricated a claim that the applicant had a mental illness.  

Pp.3-4

Outlines Dr Virgona’s method in determining she was unfit for duty.

P. 4

Refers to “racist remarks” made by Dr Virgona on 12/12/02 when the applicant’s case was referred to Dr Lee.

Pp.6-7

Alleges breach of privacy.

Pp.7-9

Alleges disability discrimination - fabrication of the finding that applicant was mentally impaired and that she was unfit for duty.

P.9

Alleges termination of employment on 5/11/04 was disability discrimination under s.15 Disability Discrimination Act (alleges she was not offered a redeployment opportunity).

Appears to suggest that her employment was terminated because she complained about the fabrication of a mental illness (p.7) and/or her employment was terminated because AHS fabricated a mental illness.  Appears also to allege discrimination because Dr Virgona was promoted (p.8)

P.11 and top of p.13

Racial discrimination by Dr Virgona relating to comments made in the letters of 12/12/02 (Annexure H to Affidavit of 15 November 2006) and 13/12/02 (Annexure J to Affidavit). 

P. 11

Alleges Dr Virgona shouted at her on 6/12/02 because of her Chinese appearance, further reference to beliefs relating to “Chinese medicine”.

P.12

Alleges disability discrimination on the part of Terry Clout by refusing to employ the applicant based on Dr Virgona’s false accusations that the applicant was mentally impaired.

P.15

Alleges AHS failed to meet terms of settlement, apparently by failing to resolve two Nurses and Midwives Board complaints in the file.

P.18

Alleges infringement of s.15 Disability Discrimination Act. Alleges that the CEO “decided the aggrieved should never be offered employment” on the basis of a fabrication of a “mental impairment” of the applicant. This appears to relate to the termination of her employment in 2004.

P.20

Alleges breach of s.15 Disability Discrimination Act by dismissing the applicant; by not resolving the “NMB Complaints on file at IRC 21/5/04”. Alleges breach by not offering an opportunity for redeployment, appears to suggest breach on the basis of the applicant’s medical condition.

Document: Amended Points of Claim filed 3 July 2007

Reference

Event

Point 1, p.2.

Dr Virgona “published and publicised (fabricated) personal information about Christine Yee without her knowledge or free will of consent.” Appears to refer to the letter from Dr Virgona dated 12 December 2002 (Annexure H to Affidavit).

Point 1, pp.2-3. Letter is Annexure H to Affidavit.

Alleges letter from Dr Virgona dated 12/12/02  contains “degrading information”. The remarks identified by the applicant as derogatory relate to Dr Virgona’s assessment of her mental state and her fitness for clinical duties.

Point 2, p.3.

The letter is Annexure J of the Complaint

Alleges letter from Dr Virgona to the applicant dated 13/12/02 contains “(offensive) information”. The remarks identified as “offensive” by the applicant are the statements in the letter identified as the reasons for the decision to move the applicant to non-clerical duties.

Point 3, p. 3.

This ground reiterates claims regarding Dr Virgona’s observations that the applicant was unfit for clinical duties.  The applicant refers to Annexure J of Exhibits to Affidavit - the letter from Dr Virgona to Ms Yee diverting her from clinical duties.

Point 4, pp.3-4

Relates to letter from Narelle Fitzgerald regarding the applicant’s unfitness for work.

Point 5, p. 4

Relates to report from Dr Peter Lee dated 16/12/2002 apparently recommending that the applicant not be returned to clinical duties.

Point 6, p. 4

Appears to refer to the letter sent by Dr Virgona on 12 December 2002 (Annexure H to Affidavit) and “document dated … 16/12/02” alleging that Dr Virgona “published and publicized (fabricated) information of Christine Yee without her knowledge and free will of consent”.

Point 7, pp.5-9. 

Alleges Dr Virgona “gave her direction to attend Robert Delaforce”. This appears to refer to the letter from Dr Virgona to the applicant dated 29 January 2003 (Annexure L to Exhibits to Affidavit) which confirms an appointment made with Dr Delaforce.

Appears to be a claim relating to a breach of privacy relating to the collection of personal information under the Privacy Act 1988.

Point 7, p 9

Alleges racial discrimination, apparently regarding phone calls from Dr Virgona to Christine Yee on 10 December 2002.

Reference to Dr Virgona’s notes:

“Notes made from phone call to CY on 10/12 .. No further contact with me, .. phone call not sleeping stressor, feel humiliated if I (AV) am asked too many questions … she can’t come back to work till feel better, uncertainty, people trying to cover their backs Want to use Chinese remedy rather than western medicine see Paul/C”.

Point 8, p.9

Alleges Dr Delaforce’s report dated 18/2/2003 supported derogatory comments made by Dr Virgona and that Dr Delaforce vilified the applicant’s mother by commenting that she had an abusive personality.  Other remarks alleged to have been made do not appear to be identified.

Point 9, p.9

Alleges that the applicant’s complaint about racial discrimination resulted in Pauline Freeman (Area Nurse Manager) escalating “workplace grievances into harassment” against the applicant.

Point 10, p.9

Refers to a report made, or ‘reporting’ done by Dr Delaforce to Dr Virgona.

“Information offered by Pauline Freeman to further anxiety depression or adjustment disorders.  The real situation is Christine Yee had obtained Work Cover Clearance on 18/3/03 for return to work to pre-injury capacity under injury management rehabilitation”. This may refer to the letter from Pauline Freeman to Dr Delaforce dated 31 March 2003 (Annexure M to Exhibits to Affidavit) following provision of a report from Dr Delaforce to the North Coast Area Health Service

Point 11, p.9

Refers to letter to Dr Delaforce from Pauline Freeman dated 29 April 2003 (Annexure N to complaint).

Alleges discrimination on the part of Pauline Freeman:

“Pauline Freeman had substantiated discrimination on the basis of perceived mental disability in terms and conditions of employment”.

No further conduct identified that might be discriminatory.

Point 13 p.11

Reference is to letter from Nick Sheehan (Area Director Human Resources) to Ms Yee dated 31 July 2003. (Annexure O)

Appears to relate to the decision made that her case should be referred to the NSW Nurses Registration Board and that she should seek treatment before returning to work.

There is also other extraneous information in this point relating to the unfair dismissal application the applicant made to the IRC.

Point 14 pp.12-15

This relates substantially to allegations made under the Privacy Act 1988.

Point 14 pp.15-18

Extracts from the Racial Discrimination Act, Disability Discrimination Act.

Page 16

Alleges dismissal “either on 6/12/02 or dated 20/10/04 by reason of the Chinese race”.

Page 16

Alleges she was prevented from being offered a suitable workplace employment place in her return to work “by reason of the Chinese race”

Page 17

Appears to allege discrimination on the grounds of a psychological injury or physiological impairment in relation to the events relating to the return to work program.

Page 17

Appears to allege discrimination on the basis that she was not offered a return to work program

Point 19, pp.26-30

Alleges NCAHS has not met commitment in relation to not pursuing the complaint against Ms Yee (as per the Terms of Settlement of the Deed).

Point 20, pp.30-38

Summary of Points 1-19.

Document: The Applicant’s Submissions: Part 1 filed 27 September 2007

Reference	Event
P. 3 (paras 30-34)	Applicant states that she “never said her racial background was the reason that the Area Health Service was “non-compliance” to the Deed dated 21/5/04”.
Pp. 4-6 (paras 7-20)	Refers again to events surrounding her complaints about racism following the finding that she was unfit for duty on 6/12/02.
P5 para 16	Reference to Dr Virgona – the finding that the applicant did not have mental capacity to practice nursing was fabricated.
P 5 para 18	Alleges HREOC complaint “was not assessed according to the operation of State and the Commonwealth laws”.
P 8, second paragraph on the page	The applicant defines her disability as lupus, which she says was classified as a permanent disability in 2006.
P. 8 - 9	Alleges that the finding that she was unfit for duty was fabricated. The applicant appears to suggest that a male nurse called her schizophrenic. The applicant may also be suggesting that NCAHS made up a story that she had a psychotic episode. Relates to events on 5/12/02 and 6/12/02.
P. 9 , second paragraph on the page	Allegation of racial vilification in relation to the comments made about “Chinese remedies”. Relates to events on 6/12/02 and 10/12/02.
P. 9, second last paragraph	Appears to be alleging disability discrimination in not finding her a redeployment position. Statement that AHS intentionally altered the applicant’s accredited capacity to practice (before 26/3/04).
P.9	Damages outlined – unemployment, damage to general health.
Pp.10-12	Outlines claim made to the Anti-Discrimination Board.
Pp.12-13	Appears to allege breach of Occupational Health & Safety Act (s.23), again relating to the finding made on 6/12/02 that she was unfit for duty.
Pp. 14, first three paragraphs	Outlines comments made by Dr Virgona on 5/12/02 regarding “Chinese remedies”, and alleges that comments made by Dr Virgona to Dr Campbell were racist. Appears to claim that a diagnosis made that she had a history of mental illness in the family was racist.
Pp.14-15	Claim that she was wrongly diagnosed (on 6/12/02 and 12/12/02) – she has an autoimmune disability (lupus) and does not suffer any kind of mental illness.
Pp15-16	Describes IRC proceedings.
Pp.17-20	Appears to be describing the IRC proceedings and makes claims in relation to unfair dismissal.
P. 20, second paragraph	Submits that clauses 2.2-2.4 of the Deed (the conditions relating to the parties releasing each other from claims re: IRC/ADT proceedings) are severable if the rest of the Deed is unenforceable because of discrimination.
Pp.22-24	Describes ADT proceedings, describes referral of complaint to HREOC, describes State laws (Anti-Discrimination Act & Industrial Relations Act)

Document: Affidavit of Christine Yee filed 15 November 2006

Reference

Event

P. 1, paragraph 2

Statement that none of her family have suffered from any form of mental impairment.

P. 1, paragraph 3

Discussion of the applicant’s infection contracted in 1985.

P. 1, paragraph 5

Applicant discusses stress injury received on 6/12/02 and states that by 2004 her health had deteriorated, resulting in lupus. States that in 2006 this was classified by Centrelink as a permanent disability.

Pp.2-3, paragraphs 7-12

Discussion of discrimination complaint made to the Anti-Discrimination Board.

Pp.3-4, paragraphs 16-17

Applicant states that in June and July 2004 AHS required her to make job submissions for redeployment and that “because of suffering an ongoing injury and medical conditions” she had not been able to comply. Alleges AHS failed to relocate her to suitable duties and failed to meet her medical expenses. Alleges less favourable treatment in comparison to other injured workers who received the benefits of injury management and payment of work expenses.

Applicant states that in July 2004, AHS received information from a Dr Wade regarding the applicant’s medical condition and functional capacity. Applicant states that by September 2004 her health suffered deterioration and that blood tests confirmed that she had lupus. Applicant alleges that after knowing about her disability, AHS terminated her employment and provided no opportunity for redeployment.

P.4, paragraphs 18-19

States that her complaint of victimisation is based on the ground that she had brought proceedings under the Disability Discrimination Act.

P4, paragraphs 20-21

States that she lodged a complaint to the Anti-Discrimination Board, and that after this complaint on 12-13/12/02, AHS made up a story about her having schizophrenia. A chain of events after this caused further damage to her mental health, resulting in a secondary physical disability.  On 20 October 2004, her employment was terminated “due to reason of medical condition”. Alleges that this termination was because she had filed a complaint at the Anti-Discrimination Board and/or because of her participation in the IRC proceedings.

Page 5, paragraph 23

Alleges racial vilification on the part of Dr Virgona on or around 12/12/02 by saying that the applicant’s family were suffering for a mental impairment.

Page 5, paragraph 25

Alleges Dr Virgona informed her on 13/12/02 that he had “formatted a case of mental illness” against her.

Page 5, paragraph 26

Alleges that after attending Peter Lee on 16/12/02, he suggested she was suitable to return to work, but no work was offered to her.

Page 6, paragraph 28

Alleges Dr Virgona vilified her and her relatives in a letter to Dr Delaforce dated 28/1/03 (Annexure 1L to Affidavit). The letter relates to Ms Yee’s removal from clinical duties in December 2002.

Page 6, paragraph 32

Refers to discussions surrounding returning to work in 2003. Applicant says her return to work efforts were opposed.