Kubay v Royal Australian and New Zealand College of Ophthalmologists [2013] NSWADT 230

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Kubay v Royal Australian and New Zealand College of Ophthalmologists [2013] NSWADT 230 Hearing dates: 10 September 2013 Decision date: 17 October 2013 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: Leave is refused for the applicant's complaint of race discrimination against the Royal Australian and New Zealand College of Ophthalmologists to proceed. Catchwords: ANTI-DISCRIMINATION - leave - complaint of race discrimination declined as lacking in substance - whether correct respondent named - Legislation Cited: Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997 Cases Cited: Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Category: Interlocutory applications Parties: Olena Kubay (Applicant) Royal Australian and New Zealand College of Ophthalmologists (Respondent) Representation: Counsel D Mahendra (Respondent) O Kubay (Applicant in person) Tress Cocks Lawyers (Respondent) File Number(s): 131070

reasons for decision

Introduction 1Dr Kubay, a Ukrainian trained ophthalmologist, has applied twice for recognition as a Specialist Ophthalmologist in Australia. On both occasions her experience and training were assessed to be "not comparable" to Australian standards, and no qualification was conferred. This complaint concerns the second of her applications submitted in March 2011. When that application was refused Dr Kubay complained to the President of the Anti-Discrimination Board that she had been discriminated against on the ground of her race. 2The President declined her complaint but Dr Kubay requested that it be referred to the Tribunal. She needs the Tribunal's permission before her complaint can go ahead: Anti-Discrimination Act 1977 (AD Act), s 96. Dr Kubay has the onus of persuading the Tribunal that it is fair and just for her complaint to proceed, keeping in mind the purposes of the AD Act: Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143, per Schmidt AJ. 3The problem with Dr Kubay's complaint is that she has brought it against the wrong respondent. The correct respondent is the Medical Board of Australia because that is the body that has power to register or refuse to register Dr Kubay and to determine the terms on which it is prepared to register her. The Royal Australian and New Zealand College of Ophthalmologists (RANZCO) merely asseses the skills and knowledge of practitioners. For that reason I refuse to give permission for her complaint against RANZCO to go ahead.