Choi v NSW Ombudsman

What constitutes Disability Discrimination in the delivery of Services?

1. The relevant sections of the Act, sections 49B, 49C, 49M, are set out below. 49A Disability Includes Past, Future and Presumed Disability A reference in this Part to a person's disability is a reference to a disability-- (a) that a person has, or (b) that a person is thought to have (whether or not the person in fact has the disability), or (c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or (d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability). 49b What Constitutes Discrimination On The Ground Of Disability (1) A person ("the perpetrator" ) discriminates against another person ("the aggrieved person" ) on the ground of disability if the perpetrator-- (a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, 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 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…….. 49M Provision of goods and services (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.

What constitutes Victimisation?

1. Section 50 of the Act sets out what constitutes victimisation and is set out below. 50 Victimisation (1) It is unlawful for a person ("the discriminator" ) to subject another person ("the person victimised" ) to any detriment in any circumstances on the ground that the person victimised has-- (a) brought proceedings against the discriminator or any other person under this Act, (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act, (c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or (d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them. (2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

History of the matter

1. On 21 September 2015 the applicant lodged a complaint with the University of Technology Sydney ('UTS'), relating to decisions made by UTS about her enrolment and exclusion from her studies in the nursing faculty of UTS. The last of these complaints was dated 14 February 2017.
2. The applicant disagreed with the decisions of UTS and complained to the New South Wales Ombudsman, the respondent to this application, regarding those decisions.
3. The Ombudsman Act 1974 sets out the requirements binding upon the Ombudsman in investigations. At section 13, it provides that the Ombudsman may decide whether or not to inquire into a matter. The Ombudsman may make preliminary inquiries, may decide to deal with a complaint by conciliation or decline or discontinue any investigation. Thus, the Ombudsman is empowered to make decisions as to the extent to which it enquires into any complaint.
4. In this case, the Ombudsman, as a matter of procedural fairness, forwarded those complaints to UTS and received a response to the complaints. On the basis of the response from UTS, the Ombudsman determined, in the exercise of its discretion, that there had been an adequate response to the complaint and that the Ombudsman ought not inquire further into the matter.
5. In relation to the complaint made by the applicant to the Ombudsman on 21 September 2015, Mr. Michael Conaty provided a response dated 8 October 2015.
6. On 8 October 2015, Mr Michael Conaty, Investigation Officer for the Acting Ombudsman provided a letter to the applicant stating that: "I have made inquiries with the university and I am satisfied they are responding in an appropriate way. Accordingly, I will now close our file on this matter".
7. The applicant sought an internal review of that decision. That review was conducted by Chris Wheeler, Deputy Ombudsman, dated 7 December 2015.
8. On 4 October 2016 the applicant lodged a further submission; spoke with Mr Conaty by telephone and also in person on 24 October 2016 at the office of the Ombudsman. Mr Conaty wrote to the applicant on 4 November 2016. Part of his response was as follows: "We rarely investigate complaints until complaints have exhausted the internal appeal and/or review rights that are available to them. Whilst I appreciate the matter is one of great importance, my review of the documents you have provided has not indicated to me any good basis for thinking the university's review of its decision would be unfair or unreasonable. Accordingly, at this time, I have decided not to make this complaint the subject of an investigation under the Ombudsman Act 1974. Of course, if the university's internal review of the matter, that is, its handling of your appeal should fail to adequately address your concerns and there is good evidence of wrong conduct, then we could look at the matter again. You would need to include copies of all relevant correspondence generated by the appeal to assist our assessment of your complaint"
9. The applicant sought a review of that decision and the review was undertaken by Chris Wheeler, Deputy Ombudsman dated 13 February 2017. A response dated 13 February 2017 was provided to the complainant. That review was extremely detailed, setting out the documents that were examined as part of the review and correspondence with the applicant (as seen at pp36-37 of the exhibit to the applicant's submission dated 6 October 2021, annexing a copy of the review).
10. The review decision of 13 February 2017 stated in part: "where a public authority acts within its lawful powers and there is no firm evidence of wrong contact, our office will not tell the authority it should have used its power differently. On the information provided, UTS Provost and Senior Vice President, Professor Peter Booth considered a range of issues and documents prior to making a decision on behalf of the university to exclude you from your studies. Included in these documents was your letter dated 2 August 2016, and submission titled 'Appealing Submission against unsatisfactory outcome of clinical support contact' dated 27 July 2016. There appears to be no evidence of wrong or unlawful conduct by either Professor Booth or UTS more broadly in relation to its handling of your studies between 2015 and 2016. The fact that Professor Booth and UTS resolved to take a position contrary to your own in relation to a number of issues including your suitability to continue your studies, is not of itself evidence of maladministration. At the time of writing to our office you had the option of appealing Professor Booth's decision with a Professional Experience Appeals Committee (PEAC). This was, as Mr Conaty advised you, the appropriate avenue to raise your concerns about the merits of Professor Booth's decision. In your correspondence to our office earlier this year, you complained about PEACs management of your appeal against exclusion. Specifically, you complained about the PEAC's decision to proceed with the hearing in your absence in addition to the outcome of the hearing itself. You also raised concerns about the PEAC's failure to date to provide you with a copy of the hearing audio. On the information provided, I am of the view that the PEAC acted fairly and in accordance with the procedural guidelines. Specifically, you appear to have had an opportunity to put all your relevant circumstances to the PEAC. Further, the PEAC advised in its letter dated 20 December 2016 and email dated 24 January 2017, the reasons for its decision to proceed with the hearing in your absence and, ultimately dismiss your appeal. I believe the university's letter provides sufficient detail as to why your appeal was dismissed. I appreciate that you believe that the PEAC has made the wrong decision, but this alone is not evidence that they did not follow the appropriate process or have made an improper process in proper decision. Finally, Ms. Unwin contacted UTS to inquire about the status of your application for a copy of the PEAC hearing audio. She was subsequently advised by UTS external solicitor, Simon Black of Barry Nielsen lawyers that the audio file was emailed to you on 10 February 2017. In the circumstances and in the absence of evidence of wrong conduct, our office will be taking no further action on your complaint about UTS."
11. In a letter to the Ombudsman dated 16 February 2018 (annexed as part of an appendix to the submissions of the respondent dated 19 October 2021 from Ms Megan Smith, Legal Counsel, New South Wales Ombudsman), the applicant stated that: "I have a long history of depression, anxiety and depressive anxiety disorder. My psychiatrist diagnosed me with obsessive compulsive disorder and borderline personality disorder on 8 December 2017."
12. The letter also stated in part, at paragraph 15: "Now, I urge you to go investigate my complaints and not to refuse to investigate my any complaints. Otherwise, I have lodge (sic) a disability discrimination complaint to the Anti-Discrimination Board. Thank you"
13. The Ombudsman did not take further action. The applicant lodged a complaint of disability discrimination and victimisation arising from the decision of the Ombudsman not to enquire further in relation to the applicant's application for review.

The complaint of the applicant to Anti-Discrimination New South Wales

1. The applicant's complaints to ADNSW, were summarised in her submissions to the Tribunal dated 6 October 2021. The applicant alleged at paragraphs six and seven of her complaint to ADNSW that the respondent refused to investigate her complaints against UTS because of her actual and presumed disabilities and that the respondent had victimized the applicant since she sought a review of the respondent's internal privacy review decision in March 2017.
2. On 2 May 2018, the President of the ADNSW referred the applicant's disability complaint and her victimisation complaint to the Tribunal pursuant to section 93 A of the Act.
3. Pursuant to section 96 of The Act, if a matter is referred to the Tribunal under section 93A of the Act, leave is required before an application may be pursued in the Tribunal.
4. On 22 September 2021, Principal Member Britton gave orders for the parties to file submissions as to whether or not leave should be granted for the complaint to proceed and as to whether the question of whether to grant leave could be adequately determined on the basis of the written submissions.
5. Principal Member Britton indicated that her preliminary view was that the matter could be adequately determined on the basis of written submissions provided by the parties, as permitted by section 50 of the Civil And Administrative Tribunal Act, 2014 (NSW).
6. The applicant provided submissions dated 6 October 2021, an affidavit dated 6 October 2021 and further annexures. The respondent filed submissions dated 26 October 2021. The applicant filed submissions in reply dated 25 October 2021.

Does the applicant have a disability within the terms of the Act?

1. The applicant states in her submission to this Tribunal of 6 October 2021 at paragraphs 5 and 8 that in 2014 and 2015 she was "assessed as a mentally ill person under the New South Wales Mental Health Act 2007 while I was a nursing student at UTS" At page one of her of the exhibit to her submissions of 6 October 2021 is a medical certificate from Dr Danny Cai date of 21 May 2014 stating that she was, at that time, suffering from depression. He also provided a similar certificate for her in 2015.
2. The applicant also submitted, as an exhibit to her submissions of 6 October 2021,a medical certificate dated to July 2018 from Dr Yoon Yung Kuk, MD, psychiatrist stating that: "1. Ms. Choi's formal diagnosis of obsessive compulsive disorder (OCD) was made on 21 November 2017. 2. The patients with OCD have a tendency to be fixed with the obsessed things, failing to pay attention to other than the obsessed things. 3..Accordingly, Ms. Choi seems to have failed to pay attention to the (sic) part of the letter in the matter."
3. For the purposes of these proceedings, the relevant time at which the applicant would need to have had a disability in order to claim disability discrimination, is the time she lodged her complaints with the respondent, rather than at the time of her nursing studies.
4. I am reasonably satisfied that the applicant's claim that she had disabilities at the time of her complaints to the respondent within the meaning of the Act is likely to be accepted.
5. Having a disability is not sufficient to prove a complaint of disability discrimination and/or victimisation.
6. In order to succeed in a claim of discrimination, the applicant would need to prove that she had been treated less favourably than others when her complaint to the Ombudsman was determined ('less favourable treatment') and that this treatment occurred 'on the ground of' 'because of' or 'due to' her disability or disabilities.
7. In her claim of victimisation the applicant needs to prove, on the balance of probabilities, that she was victimised because of the complaints she had made under the Act, as set out in s50 of the Act.
8. Unless the applicant can satisfy the Tribunal on the basis of the evidence and at the civil standard of proof that the behaviour said to constitute victimisation occurred "on the ground that" the complaints of discrimination were made, the claim will not be found to have been established.
9. In a leave application pursuant to section 96, the applicant has the onus of proving that it would be fair and just to permit the applicant to proceed in the Tribunal.

Consideration of discrimination claim

1. The respondent submits that investigation of complaints by the Ombudsman is not a service, within the terms of the Act. I do not accept that submission. The term "services" was accepted by the High Court in IW v City of Perth (1997) 1912 CLR 1 at [7] as including "an act of helpful activity". In my view, it is reasonably arguable that dealing with a complaint is capable of being characterised as a "service" within the meaning of the Act.
2. Investigation of complaints is a service to the public. To be lawful, services must be provided in compliance with the Act, without discrimination on any of the grounds set out in the Act.
3. The Tribunal accepts the alternative submission of the respondent that "the service is to receive complaints and to give proper consideration to decisions about whether or how it will deal with a complaint."
4. There is no evidence that the way in which the Ombudsman's inquiries were conducted was discriminatory. Nor is there any basis to draw an inference that the Ombudsman acted in a discriminatory manner.
5. Further, there is no evidence that the respondent would have dealt with a comparator any differently from the applicant when it investigated the complaint.
6. There is no credible evidence that the voluminous submissions of the applicant (which the applicant says are a symptom of her disabilities, including obsessive compulsive disorder), were the reason, or a reason for the decision of the respondent to finalise the complaint. There is no credible evidence that she was treated less favourably than those who did not provide voluminous submissions.
7. After the second internal review on 13 February 2017, the respondent took an approach, in accordance with its advertised policy, that no further review would be entertained. This was not an act either of discrimination or victimisation, but followed a publicly advertised policy in order to allocate scarce resources of the Ombudsman.
8. The Ombudsman made reasonable and appropriate enquiries in accordance with the requirements of the Ombudsman Act and in accordance with its publicly available policies. The Tribunal is comfortably satisfied that it did so in accordance with its normal policies and in a non-discriminatory manner.
9. In her submissions in reply date of 25 October 2021, in conclusion, the applicant states, in part as follows: "I had the disabilities. …The respondent was aware of my disabilities. The respondent did not provide me with a service as an investigative agency on the grounds of my disabilities."
10. A more plausible reason for the decision of the Ombudsman not to investigate the complaints further, as confirmed in the review undertaken in 2017, is that the Ombudsman was not reasonably satisfied that there was sufficient probative material to warrant continuing an investigation. On a review of the evidence, that decision appears to have been reasonably based and was open to the Ombudsman. On the evidence before me, it was a lawful decision.
11. The Tribunal notes that ADNSW concluded that the complaint is lacking in substance. That is a matter to which the Tribunal is entitled to have regard in an application for leave pursuant to section 96 of the Act.
12. The applicant has not succeeded in demonstrating that she is likely to be able to prove that she was discriminated against on the ground of her disability.
13. The Tribunal finds that there is insufficient evidence that Ms. Choi has any, or any reasonable, prospects of success in her application such as to warrant leave being granted for her to proceed with this matter in the Tribunal. The complaint is highly unlikely to succeed.
14. As her claim lacks the necessary evidence to support it and the respondent opposes leave being granted, it would not be fair and just to permit the complaint to proceed.
15. Leave is refused for the complaint of discrimination made by the applicant to proceed.

Consideration of victimisation complaint

1. Unless the applicant can satisfy the Tribunal on the basis of the evidence and on the civil standard of proof that the behaviour said to constitute victimisation occurred "on the ground that" the complaints of discrimination were made, the claim will not found to have been established.
2. The term "on the ground that" is not defined in the Act but case law has established that other expressions such as "due to" or "because of" approximate the meaning of "on the ground of" and, in my view, "on the ground that".
3. Additionally, as stated by Principal Member Britton in Chen v Commissioner NSW Police Force [2020] NSWCATAD 245 at [24]: "To fall within the scope of that provision, the person victimized must establish that they were subject to a "detriment" that is "loss, damage or injury" that is "real and not trivial": Sivananthan v Commissioner of Police [2001] NSWADT 44 at [40]; and Burns v Sunol (No 2) [2017] NSWCATAD 236 at [75]."
4. In terms of the law of inference, the Tribunal will be unlikely to draw an inference in relation to causation if a more innocent and probable explanation is accepted, as set out in Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70]. The other considerations to which the Tribunal may have regard are also set out in Dutt at [70].
5. Although the applicant has concluded that the reason she has not heard further from the respondent since March 2017 is that she lodged a request for an internal review of the respondent's privacy internal review decision, (her submissions of 6 October 2021 at paragraph 16), it is also the case that in the Review of decision by Chris Wheeler of 13 February 2017, the respondent stated that it proposed to close the file and not investigate further. The respondent provided to the applicant a document entitled "responding to unreasonably persistent litigants" by Chris Wheeler dated September 2014. The policy as advised to the applicant is that, for the proper allocation of scarce resources by the respondent, the respondent limits interaction with complainants at its discretion after proper review processes have occurred.
6. The applicant contends that a failure to communicate further with her after February 2017 was due to victimisation arising from the lodgment of the request for review of her privacy application. I reject that contention. The policy of limiting engagement with complainants where reasonable opportunities for review have been afforded, which is the explanation provided to the applicant, is a more plausible explanation for the further non-communication with her, rather than the lodgement of the privacy internal review application. There is no evidence to the contrary to justify any view or any inference to the contrary.
7. The applicant's complaint of victimisation, the allegation that she has been victimised since March 2017, when she requested the Tribunal to review the respondent's privacy internal review decision, appears to be very unlikely to succeed. There is a lack of evidence showing that, on the balance of probabilities (the civil standard), the treatment that the applicant received was due to her having sought the review of the respondent's internal review decision.
8. Additionally, lodgement of a privacy internal review application does not arise "under this Act" for the purposes of s50 of the Anti-Discrimination Act.
9. The applicant submits that the respondent caused her detriment in that she could not re-enrol in UTS because the respondent did not respond to her complaints made between 8 June 2017 and 6 July 2020. There is no evidence that the time taken by the Ombudsman was due to the applicant's disability or any complaint of discrimination she had made. Given that her complaint was not upheld by the respondent, it was the original decision of UTS not to permit her to re-enrol that meant that she could not re-enrol not any alleged action or inaction on the part of the respondent.
10. Thus, the complaint of victimisation pursuant to section 50 of the Act should not be granted leave to proceed further as it lacks prospects of success and it would therefore not be just and fair to permit it to proceed
11. Leave to proceed with the complaint of victimisation is refused.

Is a hearing of the application for leave to proceed 'on the papers' appropriate?

1. The applicant has submitted that a further hearing is required to determine this application, whilst the respondent submits that the question can be adequately determined "on the papers".
2. Part 4 of the Civil and Administrative Tribunal Act, 2013, indicates that, consistent with the rules of natural justice, the Tribunal may determine the appropriate procedure to be followed in each case. Section 36(1) sets out that the "guiding principle" for this Tribunal is: "to facilitate the just, quick and cheap resolution of the real issues in the proceedings."
3. Section 36 (4) states that: "The practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject matter of the proceedings."
4. Section 38 of the Civil and Administrative Tribunal Act, 2013 provides that: "The Tribunal is not bound by the rules of evidence and may inquire into an inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice"
5. Section 38 (5)(c) states that the role of the Tribunal is: "to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings."
6. The Tribunal finds that a reasonable opportunity, proportionate to the importance and complexity of the proceedings, has been afforded to the parties to have their submissions considered in the proceedings. Both parties have had ample opportunity to make submissions to the Tribunal in writing and have done so. The Tribunal is not obliged to hold an oral hearing.
7. I find that an adequate opportunity has been provided for both parties to address the question of whether leave should be given to proceed with this application to the Tribunal and as to whether the issue can be determined 'on the papers'.
8. Having taken the submissions of both parties into account as to whether or not a hearing should be held in relation to the leave application, the Tribunal determines, pursuant to section 50(2) of the Civil and Administrative Tribunal Act, 2013 that an oral hearing shall be dispensed with. The Tribunal is satisfied that the issues for determination have been able to be adequately determined by considering the written submissions lodged with the Tribunal.

Orders 1. Leave for the applicant to proceed with a claim of discrimination pursuant to section 96 is refused. 2. Leave for the applicant to proceed with a claim of victimisation pursuant to section 96 is refused.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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. Decision last updated: 17 March 2022