CITATION: Robinson v Wentworth Area Health Service [2004] NSWADT 274 DIVISION: Equal Opportunity Division APPLICANT PARTIES: Richelle Robinson RESPONDENT Wentworth Area Health Service FILE NUMBER: 031119 HEARING DATES: 30/08/2004 SUBMISSIONS CLOSED: 08/30/2004 DATE OF DECISION: 11/30/2004 BEFORE: Behrendt L - Judicial Member; Mooney L - Non Judicial Member; Lowe A - Non Judicial Member APPLICATION: Dismissal of complaint - frivolous, vexatious, misconceived or lacking in substance MATTER FOR DECISION: Preliminary matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Anti-Discrimination Act 1977 Evidence Act 1995 Dee v Commissioner of Police and Anor [2003] NSWADT 217 Dutt v Central Coast Area Health Service; Central Coast Area Health Service v Dutt [2003] NSWADTAP 3 Finance Sector Union v Commonwealth Bank of Australia (1997) EOC ¶92-889 CASES CITED: Fricke v Corbett Research Pty Ltd [2004] NSWADT 128 Langley v Niland [1981] 2 NSWLR 104 Omeri v Quality Assrance Service Pty Ltd (2003) NSWADT 188 Razaghi v Director-General, NSW Department of Health & Anor [2002] NSWADT 4 Siddiqui v Australian Medical Council (2000) EOC ¶93-059 APPLICANT REPRESENTATION: In person RESPONDENT E Bruce, barrister ORDERS: 1.The Respondent's application under s.111 of the Anti-Discrimination Act 1977 to have the Applicant's complaint of indirect discrimination on the basis of disability is rejected; ; 2.The Applicant is to supply further documents to support her complaint by 18 December 2004, including:; (a) medical evidence of the extent of her disabilities (Hepatitis C and chronic back pain) and how they make it impossible for her to attend the Woodlands Clinic daily. ; (b) if possible, evidence as to why the alternative drugs are not suitable to her situation. ; (c) evidence of her financial position to show that she cannot afford to pay for pharmacy doses.; (d) evidence to support her claim that she is suitable for take-home doses.; 3.The matter is listed for a case conference on 21 February 2005 at 10a.m. REASONS FOR DECISION 1 The applicant, Ms Richelle Robinson lodged a complaint against the respondent, Wentworth Area Health Service, with the Anti-Discrimination Board on 10 May 2002 alleging discrimination on the ground of disability in the provision of services. 2 Ms Robinson is addicted to methadone and is required to take a daily dose. This dose is administered by the Woodlands Clinic that is located in the grounds of Blue Mountains District ANZAC Memorial Hospital and is run by the Wentworth Area Health Service. 3 Until 1 March 2004, Ms Robinson was represented by the Public Interest Advocacy Centre and they filed Points of Claim and a Statement on her behalf on 28 January 2004. In her points of claim, Ms Robinson asserts that on 11 February 2002, the respondent changed its policy and required her to attend at the clinic daily and in person to receive her dose and that dosing would be strictly between the hours of 7.15 to 10.45 am. The applicant states that prior to the introduction of the new policy she was able to attend the clinic on Mondays, Wednesday and Fridays and was able to receive take-home doses on those days for the remaining days of the week, in accordance with her doctor's prescription. 4 Ms Robinson claims a disability on the basis of being a methadone addict, having Hepatitis C and because she is suffering from chronic back pain related to a spinal condition. This, she asserts makes attending at the Woodlands Clinic in person difficult. The clinic is six kilometres away from Ms Robinson's place of residence in Wentworth Falls. Ms Robinson says she does not have a car and this makes her reliant on public transport to travel that distance. In addition, she states that there are no buses on Sunday. 5 She claims that when the Woodlands Clinic required her to attend daily and in person to receive her methadone dose she was unable to comply with this requirement due to her disabilities (Hepatitis C and chronic back pain). She claims that this requirement that she attend daily and in person is not reasonable. 6 The applicant's complaint was referred to the Administrative Decisions Tribunal ("the Tribunal") by the President of the Anti-Discrimination Board on 23 September 2003. Evidence Before the Tribunal 7 Attached to the President's report was a Wentworth Area Health Service "Pharmacotherapies Service Nursing Assessment Form" that had been completed by a staff member. It stated that Ms Robinson was a methadone addict, suffered from Hepatitis C and from chronic pain related to a spinal injury. This was information that Ms Robinson had given to the staff member of the Wentworth Area Health Service. 8 Ms Robinson claims that she had asked for home dosage on occasion due to her health but on each occasion that has been refused. She also asserts that she cannot afford to purchase the doses from a private provider. 9 Attached to the Points of Claim and Statement by Ms Robinson was a letter dated 5 February 2002 from Western Area Health Service. It informed Ms Robinson that the Woodlands Clinic was to be the service provider for her methadone treatment and stated the conditions of that service provision. Also attached was a bus timetable for the Mountainlink bus service that operates between Wentworth Falls and Katoomba showing that there are no services on Sunday. Also attached was the Western Area Health Service Pharmacotherapies Home Dosing Policy. 10 On 26 February 2004 the respondent wrote to the Public Interest Advocacy Centre requesting better and further particulars, namely, a request for details of what disabilities Ms Robinson is alleging she was discriminated on the basis of, what definition of disability under the Anti-Discrimination Act 1977 she is relying on and the basis on which she alleges that she was treated less favourably by the respondent than persons without these alleged disabilities. On 1 March 2004, the Public Interest Advocacy Centre withdrew from acting for Ms Robinson. 11 At a case conference on 2 April 2004 further direction was given to Ms Robinson that she was required to provide the better and further particulars that the Wentworth Area Health Service had requested. 12 On 11 May 2004 Ms Robinson provided material to the respondent that included a letter from Ms Robinson's doctor stating that she has a back condition but did not provide details of how this may affect her mobility. This material did not appear to have been lodged with the Tribunal. 13 The Wentworth Area Health Service asserts that these documents did not answer their request and in letters dated 14 May 2004 and 20 May 2004 again requested a reply to their request for better and further particulars. Application to Dismiss the Complaint 14 The Wentworth Area Health Service claims that Ms Robinson has not filed sufficient material to substantiate her complaint and the failure to provide better and further particulars has placed them in a position where it is hard to respond to the allegations. They now make an application under s.111 of the Anti-Discrimination Act 1977 to dismiss Ms Robinson's application. 15 Section 111(1) of the Anti-Discrimination Act 1977 states: Where, at any stage of an inquiry, the Tribunal is satisfied that a complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained, it may dismiss the complaint. 16 The Wentworth Area Health Service, in making the application under s.111, claims that Ms Robinson has failed to give particulars as to the basis on which she claims a breach of s.49B(1)(a) and s.49B(1)(b) and that, instead, she merely asserts that she has a disability. They argue that if that is the case, the Tribunal has no jurisdiction and the complaint should be dismissed. 17 Further, the Wentworth Area Health Service claims that Ms Robinson's complaint is "misconceived" or "lacking in substance" as there is no evidence that there is a breach of the legislation. They argue that, taken at its highest, Ms Robinson has not made a case for a breach. 18 Without the better and further particulars that they have requested, the Western Area Health service asserts that it is in the position of having to speculate about the case they are expected to respond to and this puts them in an unfair position. 19 To this, Ms Robinson asserts that she is, on the basis of her disability, unable to attend the clinic and has been denied take-home doses. Findings 20 The Tribunal is not bound by the strict rules of evidence and therefore has discretion in how it will receive material but has an obligation to make sure that its processes provide natural justice to parties before it; as per s.73, Administrative Decisions Tribunal Act 1997. Omeri v Quality Assrance Service Pty Ltd (2003) NSWADT 188. This is especially important since parties often appear before the Tribunal without legal representation. Ms Robinson finds herself in this position and has to argue her case against a legal representative for the Wentworth Area Health Service who is a well-regarded expert in the area of anti-discrimination law. 21 A heavy burden would be imposed upon Ms Robinson if she were required to prepare her case to the standard that would meet that of experienced legal representatives. While not making her case for her, the Tribunal must ensure that Ms Robinson understands the proceedings and has adequate opportunity to put her case forward. 22 However, it is also unfair to a respondent, regardless of how established and experienced their legal representatives are, if they are placed in a position of having to speculate about the case that they need to meet. 23 Although it is not made out in her subsequent material, it is clear in the Points of Claim prepared on Ms Robinson's behalf by the Public Interest Advocacy Centre that this is a claim of indirect discrimination on the basis of disability. The President's Report also notes that this is a case of "disability discrimination (indirect) in the provision of goods and services." 24 Section 49B of the Anti-Discrimination Act 1977 articulates what constitutes discrimination on the ground of disability. It states: (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of disability if, on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, the perpetrator: (a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability , or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have such a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability. 25 Section 49M prohibits discrimination on the basis of disability in the provision of goods and services. It states: (1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability: (a) by refusing to provide the person with those goods or services, or (b) in the terms on which he or she provides the person with those goods or services. (2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services. 26 The Tribunal receives its jurisdiction from the complaint referred to it by the Board under s.94(1) of the Anti-Discrimination Act 1977. The initial complaint must allege a contravention of the Act but "it need not allege the relevant facts with the particularity of an indictment or pleading." Langley v Niland [1981] 2 NSWLR 104 at 107. Particularly where Applicants are unrepresented, the Tribunal can allow the Applicant to pursue complaints that are articulated in the complaint to the Anti-Discrimination Board even if the specific breaches of a section of the Act are not identified. This requires the Tribunal to consider the ambit of the allegations made by the Applicant within the President's report to form a view as to whether there is a complaint that can constitute a breach of the Act even though the Applicant may not have specified the section breached. 27 Section 111 allows for a complaint to be dismissed if it is "frivolous", "vexatious", "misconceived", "lacking in substance" or "for any other reason should not be entertained." The power to summarily dismiss a complaint under that section should be exercised with extreme caution and the Tribunal must approach s.111 applications on the basis that the applicant must be given every reasonable opportunity to set out the content of a complaint and to produce evidence to support it. Fricke v Corbett Research Pty Ltd [2004] NSWADT 128; Razaghi v Director-General, NSW Department of Health & Anor [2002] NSWADT 4. Accordingly, the issue for the Tribunal is, whether taking Ms Robinson's evidence at its highest, there is enough material in her complaint to satisfy the Tribunal that there is a case to answer. 28 In Fricke v Corbett Research Pty Ltd [2004] NSWADT 128 the applicant's complaint included a 19-page handwritten letter and, despite repeated requests and directions from the Tribunal, this was the sole evidence in support of his complaint of sexual harassment and victimisation. In this list of complaints contained within the letter, no times or dates were specified. At para.35 the Tribunal noted: The need for caution is even more apparent in cases where such an application is made prior to the adducing of the complainant's evidence at the substantive hearing. Ultimately, it is for each Tribunal to determine the application according to its own circumstances. It is for the Tribunal to decide whether the application should be heard and determined prior to the full hearing of the complainant's case. 29 Ms Robinson had assistance in preparing her Points of Claim and this has assisted in focusing her case. Like the applicant in Fricke v Corbett Research Pty Ltd [2004] NSWADT 128, Ms Robinson has been given numerous directions from the Tribunal to present better and further particulars. The Western Area Health Service has echoed these requests. 30 On the material before the Tribunal, it is clear that Ms Robinson's failure to provide those better and further particulars was due not to any frivolity of the claim or stubbornness of her character but rather from her failure to appreciate what is expected by the Tribunal and what it is she needs to show to prove her case. As the Tribunal noted in para.38 of Fricke v Corbett Research Pty Ltd [2004] NSWADT 128: The Tribunal approaches its role by seeing whether the facts as stated by a complainant at their highest show that there may be grounds on which to decide that the complainant either ought be dismissed or alternatively, permitted to proceed to a full hearing, in which case the respondent's evidence will be called. 31 However, while her case has been sketched out in terms of the sections that Ms Robinson is relying on, it is true to say that she has yet to substantiate those claims with clear evidence. As it stands, her evidence focuses on her hardship in meeting the requirement but does not address the test that she is required to meet in order to make her case. 32 Ms Robinson appears to feel very strongly that methadone addicts suffer from discrimination and she feels that the system of dispensation employed by Wentworth Area Health Services in its inflexibility is lacking in compassion for her situation. In her oral submissions to the Tribunal she focussed primarily on what she sees as the problem with the methadone dispensation policy rather than how she, as the applicant, had experienced indirect discrimination on the basis of a disability in the provision of a good or service. 33 It is not Ms Robinson's methadone addiction that is the basis of discrimination she is claiming in her application before the Tribunal. Her argument is that, because she suffers from a disability – namely, chronic back pain and the effects of Hepatitis C – it makes it difficult for her to meet the guidelines set by the Wentworth Area Health Services for the dispensation of methadone. 34 To establish her case, Ms Robinson needs to show that she suffers from a disability or a combination of disabilities (chronic back pain and/or Hepatitis C). She has identified the requirement or condition that she is seeking to challenge, namely, the strict policy of dispensing methadone by Wentworth Area Health Service that requires attendance daily and in person at the Woodlands Clinic between the hours of 7.15 to 10.45 am. Ms Robinson also needs to provide evidence that the disability prevents her from complying with the requirement that she attend the Woodlands Clinic (for example, that she is unable to walk there because she is in pain, she suffers from nausea and headaches so cannot walk, there is no bus service on Sunday and it is too far to walk to with her medical conditions). She needs to provide evidence of this, such as medical reports, witness statements and other supporting material. 35 Furthermore, a claim of indirect discrimination requires an investigation that a requirement that on it's face may seem neutral and of equal application to all, in fact disadvantages a particular group of people. To make out a claim of indirect discrimination, Ms Robinson needs to show that the condition of reporting in person at the Woodlands Clinic for a daily dose of methadone is one that those who do not have her disability are able to comply with. She has not addressed this criterion in her material before the Tribunal. In establishing this aspect of her case, Ms Robinson must give careful consideration to the group or pool that she seeks to compare herself with. In Finance Sector Union v Commonwealth Bank of Australia (1997) EOC ¶92-889 Justice Sackville identified several principles in defining these groups including that the selection of the base group should be calculated to reveal the significance of the characteristic (in this case, the disability) to compliance. This was described by Justice Heerey in Siddiqui v Australian Medical Council (2000) EOC ¶93-059 as follows: The comparison is not strictly speaking between two groups in the sense of separate independent entities but rather between a subgroup (the complainant's group) within a larger group (all who face the same term, condition or requirement) … It is clear that the base group is a group which is affected by the term, condition or requirement in question … the particular section of the public upon whose lives the impact of the relevant requirement or condition has to be measured. 36 With these pronouncements as a guide, Ms Robinson has to compare her capacity, given her disability (chronic back pain and Hepatitis C), to comply with the requirement (attendance in person at the Woodlands Clinic) with methadone addicts who have to attend the clinic who do not have her disability. 37 In order to satisfy the element of s.49B(1)(b), Ms Robinson also needs to show that the requirement of having to attend in person at the Woodlands Clinic between the hours of 7.15 to 10.45 a.m. is, having regard to the circumstances, unreasonable. 38 The Tribunal finds that Ms Robinson has sketched out the nature of her claim but notes that, while she has identified the provisions of the Anti-Discrimination Act 1977 which she claims have been breached by the Wentworth Area Health Services, she has, to date, failed to provide evidence to support her case and she has failed to articulate how this is a case of indirect discrimination. 39 It is the view of the Tribunal that Ms Robinson should be given an opportunity to provide further evidence of her claims as it would be manifestly unjust to deprive her of the opportunity to provide the better and further particulars that would make out her case. She will need to provide evidence of her medical conditions and evidence of her inability to meet the requirements set by the Wentworth Area Health Services for the dispensation of methadone. She also needs to make out her claim that the requirement to attend in person to receive methadone is one that disadvantages those who have her disability and does not disadvantage those who do not have it. She will also need to show that the requirement that she attend in person is unreasonable. Ms Robinson should also submit material to the Tribunal that quantifies her damages. To this end, Ms Robinson should produce: (a) medical evidence of the extent of her disabilities and their effect on her. In particular, she needs to show that her Hepatitis C and chronic back pain make it impossible for her to attend the clinic daily. (b) If possible, this evidence should also include material that informs the Tribunal as to why the alternative drugs are not suitable to her situation (c) evidence of her financial position to show that she cannot afford to pay for pharmacy doses. (d) evidence to support her claim that she is stable and suitable for take-home doses. 40 Whether Ms Robinson has made her case out to the standard needed to prove her case is a matter for the hearing. In putting that case forward, Ms Robinson should be aware that she carries the onus of proving her case on the balance of probabilities as set out in s140 of the Evidence Act 1995. This standard was restated in Dutt v Central Coast Area Health Service; Central Coast Area Health Service v Dutt [2003] NSWADTAP 3 as being, in all civil cases, a requirement that the standard of proof to be met by the applicant is on the balance of probabilities. 41 Ms Robinson's failure to provide evidence to substantiate her claim of indirect discrimination on the basis of discrimination has been frustrating for the respondent who is attempting to refute the case and has consistently asked for better and further particulars. However, it is in the interest of both parties that Ms Robinson be given another opportunity to provide that further evidence to support her claim to the Tribunal. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.