Haleem v Douglass Hanly Moir Pathology [2013] NSWADT 217

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Haleem v Douglass Hanly Moir Pathology [2013] NSWADT 217 Hearing dates: 10 September 2013 Decision date: 04 October 2013 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: Leave is refused for Dr Haleem's complaint of race discrimination to proceed Catchwords: ANTI-DISCRIMINATION - leave - complaint of race discrimination declined as lacking in substance by President of Anti-Discrimination Board - whether fair and just for complaint to proceed Legislation Cited: Anti-Discrimination Act 1977 Cases Cited: Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Purvis v New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92 Category: Principal judgment Parties: Khalid Haleem (Applicant) Douglass Hanly Moir Pathology (Respondent) Representation: Dr Haleem (In person) Bartier Perry (Respondent) File Number(s): 131073

reasons for decision

Introduction 1Dr Haleem, who is Indian, complains that Douglass Hanly Moir Pathology (DHMP), discriminated against him on the ground of his race when he went to one of their clinics for a Helicobacter pylori breath test. The President of the Anti-Discrimination Board declined the complaint as "lacking in substance". The Tribunal must give permission or "leave" before the complaint can go ahead. Dr Haleem has the onus of persuading the Tribunal that it is fair and just for his complaint to go ahead, keeping in mind the purposes of the Anti-Discrimination Act 1977 (AD Act): Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143, per Schmidt AJ. 2It is unlawful for a service provider, such as DHMP, to discriminate against a customer on the ground of their race by refusing to provide a service or by providing a service on unfavourable terms: AD Act, s 19. Dr Haleem complains that: (1)he was made to wait longer than was necessary before being taken into the treatment room to be administered the test; (2)the receptionist, Ms Pratt, treated him in a "firm and negative" manner; (3)the pathology collector, Ms Evans, treated him in a rude and racist manner; and (4)Ms Evans refused to administer the Helicobacter pylori test. 3Dr Haleem claims that this conduct constitutes discrimination on the basis of his race. He says his experience at DHMP on 10 August 2012 and on previous occasions has humiliated and depressed him, making it difficult for him to concentrate on his work and studies. 4I have decided not to grant leave for the complaint to proceed. It is highly unlikely that Dr Haleem will be able to prove that he was kept waiting longer than necessary or that Ms Pratt or Ms Evans treated him in an unfavourable manner. While there is no dispute that Ms Evans refused to administer the Helicobacter pylori test, it is highly unlikely that Dr Haleem would be able to prove that a reason for that refusal was his race.