Equal Opportunity Tribunal of New South Wales CITATION: Simon -V- Dental Board Of New South Wales [1997] NSWEOT COMPLAINANT: Tibor Simon RESPONDENT: Dental Board of New South Wales NUMBER: 106 of 1997 TRIBUNAL: Judge H G Murrell S.C. ( Senior Judicial Member ) GROUNDS OF COMPLAINT: Discrimination on the ground of race in the area of goods and services DATES OF HEARING: 02/25/1998 DATE OF JUDGMENT: 05/29/1998 Complainant: In Person LEGAL REPRESENTATIVES: Respondent: Ms R Henderson (Counsel) JUDGMENT IN FAVOUR OF: Complainant Summary Background 1. The complainant has poor English. 2. The complainant complained to the Dental Board about the standard of work undertaken by a dentist. 3. The Dental Care Assessment Committee (DCAC) investigated the complaint and reported to the Dental Board, which dismissed the complaint against the dentist. 4. The complainant lodged a complaint with the Anti-Discrimination Board (ADB), alleging discrimination in the manner in which the DCAC conducted the investigation. 5. The ADB dismissed the complaint as lacking in substance. At the complainant's request the matter was referred to the Tribunal. 6. Pursuant to section 111 of the Anti-Discrimination Act 1977 the respondent asked the Tribunal to dismiss the complaint, contending that: (1) the complainant's allegations lacked substance; and (2) section 64 of the Dentists Act 1989 provided a complete defence to the claim. The respondent called evidence in support of contention (1). Held 7. Despite the apparent poverty of the complainant's case, having regard to the fact that he is unrepresented and has difficulty with the English language, the merits of the case should not be determined on a pre-hearing basis : Reyes-Gonzalez v Sydney Institute of Technology (Equal Opportunity Tribunal, 6 March 1998). 8. Section 64 of the Dentists Act does not provide a defence to a respondent who has acted without exercising the caution and diligence to be expected of an honest person of ordinary prudence : Mid Density Developments Pty Limited v Rockdale Municipal Council (1993) 44 FCR 290. The application of section 64 to the complainant's case could not be determined until (at the earliest) the close of the complainant's case. 9. Section 111(1) application dismissed. 10. Leave to the respondent to re-list re any application for security for costs. EQUAL OPPORTUNITY TRIBUNAL NO. 106 of 1997 TIBOR SIMON -v- DENTAL BOARD OF NEW SOUTH WALES APPLICATION UNDER SECTION 111 OF THE ANTI-DISCRIMINATION ACT 1977 1. BACKGROUND 1.1 Pursuant to section 111(1) of the Anti-Discrimination Act 1977 (the Act) the Tribunal is asked to dismiss the complaint on the basis that it is misconceived or lacking in substance, and on the basis that section 64 of the Dentists Act 1989 prevents the respondent from being subjected to the action. 1.2 Between 7 May 1995 and January 1996 the complainant was treated by Dr Keogh, a dentist practising in the Newcastle area. 1.3 On 23 February 1996 the complainant wrote to Dr Keogh alleging that in the course of treating the complainant on 15 and 25 January 1996 Dr Keogh damaged the complainant's teeth. 1.4 On 9 April 1996 the complainant consulted Dr Laird, a dentist practising in the Newcastle area. 1.5 English is not the complainant's first language. The complainant made a complainant to the Health Care Complaints Commission. That complaint was referred to the Dental Board. At the request of the Dental Board, the complainant provided a statutory declaration setting out his alleged difficulties in dealing with Dr Keogh. 1.6 The Dental Board asked Dr Laird to report on the standard of work provided by Dr Keogh. On 19 November 1996 Dr Laird provided a report in which he concluded: The bridge in Mr Simon's lower left quadrant, is, in my opinion, perfectly adequate, and could be considered to at least be of average quality for a practitioner of Dr Keogh's experience, having due regard for the general state of Mr Simon's dentition and his level of oral care. Dr Laird went on to refer to some overfilling of the root canal in the lower left second bicuspid and related matters. 1.7 On 19 December 1996 the Dental Board wrote to the complainant, advising that a report had been obtained which indicated that the complainant's bridge construction was of satisfactory quality, and advising that the Board had dismissed the complainant's complaint against Dr Keogh. 1.8 By a document headed "Appeal from (an) investigation by the Dental Board of NSW", the complainant complained of discrimination to the Anti-Discrimination Board (the ABD). In that document he expressed the view that Dr Keogh had smashed healthy teeth out of sheer spite and had constructed a faulty bridge. He stated: I believe that I have been discriminated against and that the matter has not been investigated thoroughly. 1.9 In response to an inquiry by the ADB, the Dental Board made the following assertions. (1) The complainant's complaint to the Dental Board had been investigated in the usual way, the complaint having been forwarded to the Dental Care Assessment Committee (the DCAC). (2) The DCAC had followed its usual practice of obtaining an opinion on the dental work. While the opinion was usually arranged through the Sydney Dental Hospital, in instances where that was not convenient the appointment was arranged at a location close to the complainant. (3) The DCAC did not usually make personal contact with either the complainant or the dentist. (4) While the syntax of the complainant's complaint indicated that his first language was not English, the meaning and substance of the complaint was clear on the face of the documents and the Dental Board had not considered that the intervention of an interpreter was necessary. 1.10 On 19 May 1993 the complainant complained to the Anti-Discrimination Board that he had not been provided with a copy of Dr Laird's report. 1.11 On 17 July 1997 the President of the ADB advised the complainant that his complaint was found to be lacking in substance. 1.12 Pursuant to section 91(2) of the Anti-Discrimination Act, the complainant requested that the matter be referred to the Tribunal. 2. COMPLAINANT'S ALLEGATIONS 2.1 At the hearing of the section 111(1) application, the complainant stated that he had been the object of race discrimination in the following respects. (1) The Dental Board did not personally interview the complainant. (2) The Dental Board did not seek the independent expert opinion of the Sydney Dental Hospital, or otherwise obtain an independent assessment. Dr Laird's assessment was not independent because Dr Laird was a professional colleague of Dr Keogh. (3) The Dental Board failed to advise the complainant that it intended to obtain a report from Dr Laird, and failed to arrange for a personal attendance by the complainant upon Dr Laird. (4) The Dental Board failed to convene a meeting at which both the complainant and Dr Keogh were present and at which the complainant could confront Dr Keogh. (5) Had English been the complainant's first language, the Dental Board would have paid closer attention to the complainant, would have more fully comprehended the complaint and would have conducted a more thorough investigation. (6) The Dental Board failed to release Dr Laird's report to the complainant. 2.2 The respondent contends that of these six allegations, allegation (5) is the only one which was raised in the complaint to the ADB. 2.3 With the exception of allegations (5) and (6), the above matters were not clearly formulated in any document provided to ADB. However, each falls under the general umbrella of the complaint that the Dental Board was guilty of race discrimination in the manner in which it conducted its investigation. Consequently, it is the Tribunal's view that there is jurisdiction to inquire into each of the above allegations. 3. RESPONDENT'S EVIDENCE 3.1 On the section111(1) application, the respondent called evidence from Barbara Cameron, who has held the position of Registrar of the Dental Board for the past seven years. She stated that, while complainants were often referred to the Sydney Dental Hospital, this was not the invariable practice. The course taken in a particular case would depend upon the complainant's location and whether the complainant had seen a dentist since undergoing the work the subject of the complaint. If the complainant had seen a subsequent dentist, the DCAC might simply call for a report from the subsequent dentist. She gave evidence that the complainant was not usually advised that a subsequent dentist had been asked to provide a report to the Board. She stated that any independent assessment was received by the DCAC and the Dental Board "in confidence" and was not released to the complainant. 3.2 Ms Cameron said that it was the practice of neither the DCAC nor the Dental Board to interview the dentist or the complainant. It was not usual for there to be a meeting between the dentist and the complainant. 3.3 The evidence of Ms Cameron was not challenged. 4. RESPONDENT'S SUBMISSION ON LACK OF SUBSTANCE 4.1 It is the respondent's contention that each of the complainant's six allegations is misconceived or lacking in substance. Each is a bare assertion which flys in the face of the evidence given by Ms Cameron. There is no suggestion that the complainant is in possession of evidence to substantiate any assertion. The allegations are so manifestly groundless as to be utterly hopeless. 4.2 The Tribunal accepts that there seems to be only a possibility that the complainant will establish his allegations. However, having regard to the fact that the complainant is unrepresented and experiences some difficulty with the English language it is appropriate that the merits of the case be reviewed as the hearing into the merits proceeds, rather than on a pre-hearing basis: Reyes-Gonzalez v Sydney Institute of Technology (Equal Opportunity Tribunal, 6 March 1998). 5. SECTION 64 DENTISTS ACT 1989 5.1 Section 64 of the Dentists Act 1989 provides: 64. No matter or thing done or suffered by a person being: (a) the Board or a member of the Board, (b) the Registrar, (c) the Committee or a member of the Committee, or (d) an inspector, in good faith in the execution or intended execution of this Act, or the exercise or discharge of the person's functions, subjects the person, or the Crown, to any action, liability, claim or demand. 5.2 The respondent submits that section 64 extends to proceedings before the Tribunal. It submits that the Dentists Act 1989 was enacted after the Act came into force and was intended to prevail over any conflicting provisions of the Act. 5.3 Without deciding, the Tribunal assumes that there may be some circumstances in which section 64 will provide a defence to a complaint made under the Act. 5.4 Except in the case of improper motive, the grounds for excluding liability by virtue of a provision such as section 64 must be proved by the party seeking to invoke the provision: Barrett v South Australia (1994) 63 SASR 208. As section 111 is primarily directed to the terms and substance of the complaint, rather than to the evidence (particularly defence evidence), it would be only in an exceptional case that section 64 could form the basis for a successful section 111 application: see Webster v Lampard (1993) 177 CLR 598. 5.5 Before section 64 could operate as a defence, two requirements would have to be satisfied, ie that the relevant conduct was "in good faith", and that the conduct was "in the execution or intended execution of (the) Act". 5.6 There seems little doubt that the Dental Board's inquiry into the complainant's complaint under the Dentists Act was conduct in the intended execution of that Act. 5.7 It is necessary to consider the meaning of the requirement of "good faith" in section 64. In considering the meaning of that requirement, the Tribunal bears in mind the following. (1) Provisions such as section 64 are designed to strike a balance between the interests of an authority which provides a service and benefit to the public, and the interests of those directly affected by the authority's conduct. (2) It can be assumed that Parliament will express in the clearest language any intention to deprive citizens of civil rights and remedies. See Attrill v Richmond River Shire Council (1995) 38 NSWLR 545. In relation to rights and remedies provided by equal opportunity legislation, while such rights and remedies are to be asserted by or on behalf of individuals, they are also created for the general public benefit of promoting equal opportunity between all persons. Consequently, in relation to provisions such as section 64, the balance to be struck is not just between a public interest and a private interest, but between a public interest and an interest which is both private and public. 5.8 In some statutory contexts, "in good faith" refers only to personal honesty and the absence of malice. A public official who has acted with honest ineptitude will be protected. In other statutory contexts, "good faith" requires the exercise of the caution and diligence to be expected of an honest person of ordinary prudence: Mid Density Developments Pty Ltd v Rockdale Municipal Council (1993) 44 FCR 290. In keeping with contemporary concern to restrict legislative derogation of civil rights and remedies, it seems that provisions such as section 64 will usually be construed narrowly, and will not protect a public official who has failed to exercise caution and diligence. Section 64 is to be construed as providing protection only for the Board and others who act with caution and diligence, in the sense in which those expressions are used in Mid Density Developments . 5.9 It is to be expected that the Board will be diligent to avoid acting in a discriminatory manner. With the possible exception of allegation (5), if the complainant established that for race reasons he was treated less favourably than others in the six respects alleged, then, because of the clear and gross nature of the alleged conduct, it may be very difficult for the respondent to successfully invoke section 64. 5.10 In summary, the complainant alleges discriminatory conduct of a gross kind, ie conduct which, if established, would not necessarily be inactionable because of section 64. Because of the "good faith" requirement, section 64 will not necessarily protect such conduct. Assuming that section 64 is capable of providing a defence, the application of the defence could not be determined until (at the earliest) the close of the complainant's case. 6. CONCLUSION 6.1 The section 111 application is dismissed. 6.2 The evidence called by the respondent shows that the complainant may have great difficulty in establishing his allegations. The complainant states that he is impecunious. The respondent has leave to re-list the matter before me for the purpose of making any application for security for costs. 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.