O’Sullivan v Health Care Complaints Commission (No 3) [2010] NSWADT 309

CITATION: O'Sullivan v Health Care Complaints Commission (No 3) [2010] NSWADT 309

DIVISION: Equal Opportunity Division

APPLICANT Brendan O'Sullivan PARTIES: RESPONDENT Health Care Complaints Commission

FILE NUMBER: 091056

HEARING DATES: 3 May 2010, 28 June 2010, 28 July 2010

SUBMISSIONS CLOSED: 28 July 2010

DATE OF DECISION: 30 December 2010

BEFORE: Patten D - Deputy President; O'Sullivan M - Non-Judicial Member; Monaghan-Nagle L - Non-Judicial Member

CATCHWORDS: Victimisation – insufficient evidence to establish

Anti-Discrimination Act 1977 LEGISLATION CITED : Medical Practice Act 1992 Health Care Complaints Act 1993

APPLICANT Julian Gormly, barrister REPRESENTATION: RESPONDENT J Oakley, barrister

1. Complaint dismissed ORDERS: 2. Subject to 3, no orders as to costs 3. Leave to respondent to make application for costs accompanied by submissions within 30 days. Applicant to reply within 21 days. Matter of costs to be decided on the papers.

REASONS FOR DECISION

1 The applicant a medical practitioner and specialist psychiatrist complained to the Anti- Discrimination Board (the ADB) on 18 November 2008. The Board accepted that the complaint alleged discrimination and victimisation within sections 49A, 49B, 49J, 49M, 50, 52 and 53 of the Anti Discrimination Act (the Act). The essence of the complaint was that the respondents encouraged or procured the NSW Medical Board (the Board) to require him to be examined by a psychiatrist and that this encouragement or procurement constituted either an act of discrimination based on the applicant's presumed mental incapacity or an act of victimisation based upon the applicant's prior involvement in complaints to the ADB about the conduct of the Health Care Complaints Commission (HCCC) in other matters.