Elali v Department of Customer Service

Legal Principles

1. A person may make a complaint to the President on their own behalf alleging that a person(s) has contravened a provision of the Act: s 87A(1)(a)(i) of the Act.

Disability Discrimination

1. Section 4 of the Act defines disability to mean: (a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or (b) the presence in a person's body of organisms causing or capable of causing disease or illness, or (c) the malfunction, malformation or disfigurement of a part of a person's body, or (d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or (e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.
2. At s 49A the Act defines disability to include past, future and presumed disability: 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).
3. If an act is done for two or more reasons, and one of the reasons consists of unlawful discrimination under the Act (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of the Act, the act is taken to be done for that reason: s 4A of the Act.
4. Section 49B of the Act explains 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 … (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. …

The provision of goods and services

1. Section 49M of the Act provides: "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."
2. The applicant would need to establish that the Respondent provides services, and that they were discriminated against (as defined by s 49B) in a manner which was unlawful under s49M. The conduct which is unlawful under s 49M is limited to either refusing to provide the services, or in the terms on which the services are provided. Terms are the conditions on which the service is or will be performed; they are not part of the manner of actual performance: Spence v Roberts (No 2) [2006] NSWADT 361 at [58-60]; Munt v Workers Compensation Independent Review Officer [2020] NSWCATAD 156 at [28-30]. Section 49M does not allow a complaint of discrimination to be brought in relation to the manner in which goods or services are provided.
3. Section 4 of the Act defines 'services' to include: (e) services provided by a council or public authority
4. In the context of alleged discrimination under the similarly worded s 66K(1) of the Equal Opportunity Act 1984 (WA) Brennan CJ and McHugh J said in IW v The City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 16-17: "In determining whether a person has refused to provide a service within the meaning of the Act, it is necessary to identify with precision what service has allegedly been refused to that person and what service or services the alleged discriminator provides."
5. The words "on the ground of" have been paraphrased as "because of", "due to," or "a real" reason, a "genuine" reason or "true" reason for the treatment alleged to have been discriminatory: Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 (Purvis) per Gleeson CJ at 102, McHugh and Kirby JJ at 144; Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [28]. The applicant bears the onus of proof that he was treated less favourably "on the grounds of", "because of" or "due" (at least in part) to his disability: see Hubbard v Roads and Traffic Authority of NSW [2010] NSWADT 99 at [56].
6. If there is no actual comparator with whom to compare the applicant, then a hypothetical comparator may be considered: see Dutt v Central Coast Area Health Service [2002] NSWADT 133 (Dutt) at [59]‑[65]; Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5; Bassili v The Star Pty Ltd [2016] NSWCATAD 167 at [23].

The BDM Act

1. Section 6 of the BDM Act outlines the Registrar of BDM's functions: 6 REGISTRAR'S GENERAL FUNCTIONS The Registrar's general functions are-- (a) to establish and maintain the registers 1 necessary for the purposes of this Act and the Relationships Register Act 2010 , and (a1) to maintain the integrity of the Register and to seek to prevent identity fraud associated with the Register and the information extracted from the Register, and (b) to administer the registration system established by this Act and ensure that the system operates efficiently, effectively and economically, and (c) to ensure that this Act is administered in the way best calculated to achieve its objects.
2. Part 5 of the BDM Act deals with change of name applications. Section 27 of the BDM provides: 27 APPLICATION TO REGISTER CHANGE OF ADULT'S NAME An adult person may apply to the Registrar, in a form approved by the Registrar, for registration of a change of the person's name if-- (a) the person's birth is registered in the State, or (b) the person was born outside Australia, the person's birth is not registered in Australia and the person has been resident in the State for at least 3 consecutive years immediately preceding the date of the application.
3. Section 29A of the BDM Act contains the requirement for an applicant for a CoN to disclose their criminal history, and makes it an offence for them not to do so: 29A REQUIREMENT TO DISCLOSE CRIMINAL RECORD (1) The form approved by the Registrar for an application for registration of a change of an adult's name is to include a requirement to the effect that the applicant disclose whether he or she has been convicted of a relevant offence. …. (3) An offence against section 57 in relation to a false or misleading disclosure referred to in this section in an application for registration of a change of name is in addition to an offence against that section for any other false or misleading representation made in the same application. (4) In this section-- "conviction for an offence" -- (a) includes the making of an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 , and (b) does not include a spent conviction within the meaning of Part 2 of the Criminal Records Act 1991 or a conviction that is taken to be quashed within the meaning of Part 4 of that Act. "relevant offence" means-- (a) an offence in New South Wales that is punishable by imprisonment for 12 months or more, or (b) an offence in a jurisdiction other than New South Wales that, if committed in New South Wales, would be an offence so punishable. Note : The provision of false or misleading information in an application for registration of a change of name in relation to disclosure of convictions for relevant offences constitutes an offence against section 57 with a maximum penalty of 100 penalty units or 2 years imprisonment or both.
4. Section 30 of the BDM Act relevantly requires: 30 REGISTRATION OF CHANGE OF NAME (1) Before registering a change of name under this Part, the Registrar may require the applicant to provide evidence to establish to the Registrar's satisfaction-- (a) the identity and age of the person whose name is to be changed, and (b) that the change of name is not sought for a fraudulent or other improper purpose, …
5. Section 44 of the BDM Act gives the Registrar powers of inquiry into "registrable events", which include changes of name. Those powers of inquiry include requiring a person by notice to answer specified questions or provide other information in a specified time and manner. Failing to comply with that notice without a reasonable excuse is an offence. Section 57 makes false or misleading representations an offence: 57 FALSE REPRESENTATION A person who makes a representation in an application, notice or document under this Act or in response to a notice under section 44 of this Act (Registrar's powers of inquiry), knowing the representation to be false or misleading in a material particular, is guilty of an offence.

Granting or refusing leave

1. Where the President decides to accept a complaint under s 89B of the Act, she must investigate that complaint: s 90(1) of the Act. If, at any time in the course of that investigation, the President is satisfied that the complaint is misconceived or lacking in substance and/or that no part of the conduct complained of could amount to a contravention of a provision of the Act, he or she may decline the complaint, in whole or in part: ss 92(1)(a)(i) and 92(1)(a)(ii) of the Act. Section 92 relevantly states: 92 PRESIDENT MAY DECLINE COMPLAINT DURING INVESTIGATION (1) If at any stage of the President's investigation of a complaint-- (a) the President is satisfied that-- (i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or (ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or … the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint.
2. In State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at [14] Ormiston JA stated that the term "misconceived" is commonly used by lawyers to mean "a misunderstanding of legal principle" and the term "lacking in substance" to mean "an untenable proposition of law or fact". That characterisation has been accepted by this Tribunal and its predecessor, the Administrative Decisions Tribunal in many cases: see Alchin v Rail Corporation NSW [2012] NSWADT 142 at [25] and [26]. A complaint will be "lacking in substance" if it can be demonstrated that there exists no factual basis for the allegations or that the complaint is "not reasonably arguable": Langley v Niland [1981] 2 NSWLR 104 at 107 and Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 at [22]. This is different to a determination whether the complaint is one within the provisions of the Act at all": Langley v Niland [1981] 2 NSWLR 104 at 107.
3. Where, as here, the President declines a complaint under s 92 of the Act, the President must refer the complaint to the Tribunal if she has received a written request from the complainant to do so: s 93A of the Act.
4. Where a complaint is referred to the Tribunal at the request of a complainant under s 93A(1), that complaint may not be the subject of proceedings before the Tribunal without the leave of the Tribunal: s 96(1) of the Act.
5. Section 96(1) gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones v Ekermawi [2009] NSWCA 388 at [58] (Jones); Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [25] (Ekermawi). That discretion must be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant's rights under that scheme: Jones at [57]; Ekermawi at [32]. The question of leave involves evaluating whether it is "fair and just" to grant or refuse leave in the particular circumstances of the case: Ekermawi at [36], [37]; Jones at [58]. In deciding whether to grant leave, the Tribunal may have regard to the grounds which the President may take into account in declining a complaint under s 92 of the Act: Jones at [60].
6. The onus lies with the Applicant to establish that leave ought to be granted and the Tribunal is to take the Applicant's evidence at its highest and then determine whether he could possibly succeed in his complaint of disability discrimination: Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35].

The Evidence

1. The Applicant relied on his correspondence with the ADB provided to the Tribunal with the President's referral of complaint, and an additional two handwritten pages provided prior to the leave hearing on 4 August 2021.
2. In correspondence to the ADB on 28 April 2021 the Applicant stated: …the main staff member that I believe indirectly discriminated against me in assessing my change of name application is Tim Maund, he is the service delivery advisor for the change of name section. I have had several telephone conversations with this person over the last few months in relation to my change of name application. During one telephone conversation with Tim on Wednesday afternoon 24 February 2021, he indicated to me that "I am aware of your type of personality disorder which constitutes impulsive and self-destructive behaviours, therefore we believe that you will use your new name for fraudulent purposes so you need to convince us otherwise". I believe this is providing me a service on less favourable terms due to my disability.
3. The Applicant relied on two handwritten pages as evidence of telephone calls with BDM staff. The first stated the following: Recorded by: Saamer Elali Date: 24-02-2021 Contemporaneous notes of my telephone conversation with Tim Maund from BDM 03:00pm Phoned Tim Maund who is the Service delivery advisor in the Change of Name department on 02 4823 [withheld by Tribunal] We spoke for a few minutes regarding my change of name application and what further information I needed to provide to complete my application. Advised Mr Maund that I have been diagnosed by my treating psychiatrist that I have a severe personality disorder which is unamenable to treatment. Advised Mr Maund that his numerous requests in assessing my change of name application might lead to an indirect discrimination matter. Mr Maund stated that he is aware of the type of disorder which constitutes impulsive and self-destructive behaviour. He said he believes that I will use my name for fraudulent purposes and I needed to convince him otherwise. Call ended.
4. The second page stated: Thursday 15 April 2021 02:30pm Phoned Service NSW on 13 77 88 and pressed option 5 for NSW registry of Births Deaths and Marriages. Spoke with a staff member "Naomi". "Naomi" transferred me to her supervisor "Teresa". Advised "Teresa" that I suffer from a severe personality disorder. Advised Teresa that I have communicated this personality disorder to a number of staff members at BDM including "Tim Maund". Teresa then told me that she knows someone who has a severe personality disorder. Teresa told me that the Registry has a right to decline my application because of my personality disorder because changing my name does not mean that I will change my behaviour. I then ended the call and documented these contemporaneous notes. RECORDED BY: Saamer Elali DATE: 15/04/2021
5. At hearing on 4 August 2021 I pressed the Applicant to identify what other evidence he relied on to demonstrate that the Respondent's conduct was discriminatory. The Applicant stated "I can't prove the discrimination" and "I don't intend to give them [referring to the Respondent] evidence to make out their case". I explained that even if I accepted that Tim Maund and Teresa had made the statements alleged in his application and the handwritten notes he had provided, it didn't support a finding that the requests for further information made by BDM in the context of processing of his application were, in fact, made because he had a disability, or a finding that BDM treated him less favourably than anyone else, real or hypothetical. The Applicant stated that "it's more probably than not that Tim Cogle spoke to them", referring to the decision maker speaking to Tim Maund and Teresa, but when asked on what basis the Tribunal could make that finding, stated "common sense", "I can't prove something that's non-existent". When asked "what evidence will you rely on", the Applicant claimed he was being subjected to procedural unfairness.
6. The Respondent denied its employees said what the Applicant alleged. The Respondent relied on its correspondence with the ADB in response to the complaint and material forwarded to the ADB during its investigation of the Applicant's complaint, and the statutory provisions of the BDM Act to support the processing of the Applicant's CoN application.
7. According to the material in the President's referral, BDM received a second CoN application from the Applicant on 4 January 2021 (the first being in 2017) and the Applicant requested an update via the general enquiries email address on 15 January 2021, asking "please also provide your "direct" phone number, not the Service NSW number 13 77 88".
8. The application was assessed as non-compliant on lodgement and a number of written requests were sent by the Amendments Team, BDM to the Applicant requesting missing information and documentation, including proof of place of birth and proof of 3 years NSW residency. The Respondent also required the Applicant to return the original CoN certificate from 2017 and informed him that his Medicare card could not be verified. Return documentation provided by the Applicant was assessed as incomplete. A new Medicare card was supplied by the Applicant on 19 February 2021 in his former name, without explanation for the discrepancy.
9. On 17 February 2021 the Applicant's application was escalated by the Respondent due to its failure to verify certain identity documents provided by the Applicant through the National Document Verification Service (DVS), and the Applicant's behaviour towards BDM staff. A recommendation was then made for a National Police Check to be applied, which resulted in the disclosure of the Applicant's criminal history. The National Police Check showed a conviction of federal offence for the use of a carriage service to menace/harass/offend with a sentence of 2 years imprisonment, with the Applicant being released on recognisance in accordance with s 20(1)(b) of the Commonwealth Crimes Act 1914. This was a contravention of s 29A(3) of the BDM Act which requires disclosure of a criminal record.
10. The Applicant had consented to a National Police Check in part 8 of the Application form to BDM for a CoN and had completed Part 9 of that form as "I have not been convicted of an offence that is punishable by imprisonment for 12 months or more". He had signed the declaration page of the form on 23 December 2020 confirming his understanding that it was a punishable offence to give false or misleading information in the application and its supporting documentation.
11. Due to its complexity, the Applicant's application to BDM was referred to the registry Compliance Team which sought further information and documentation from the Applicant on 16 March 2021 and 18 March 2021, pursuant to s30(1)(b) of the BDM Act. The Applicant refused to send in the requested documentation and did not answer phone calls from the registry to the two mobile phone numbers he provided, instead requesting direct numbers for registry staff.
12. The respondent provided a copy of its correspondence to the Applicant dated 7 April 2021 from Tim Cogle, Manager, Identity Security, declining his application for a CoN under s 30(1)(b) of the Act, as "I am not satisfied that this application is brought for fraudulent and improper purposes".
13. The respondent explained that in March and April 2021, the Applicant called the Registry multiple times and used inappropriate and offensive language in these calls. The calls were viewed as intimidating and harassing to BDM staff. As a result of the Applicant's behaviour, on 7 May 2021 the Respondent wrote to the Applicant, stating: I write to you about multiple calls you have made to the Registry of Births Deaths and Marriages (the Registry) particularly during March and April 2021. You have used inappropriate and offensive language in these calls. Please note that it is an offence to use a carriage service to menace, harass, or cause offence under the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act 2004 (Cth) and as a result NSW Police have been notified of your actions.
14. That correspondence directed the Applicant not to call any phone number associated with the Registry, with the directive to be reviewed in 12 months. The Applicant was informed that calling the Registry would be reported to the Police, but he would continue to have access to Registry Services concerning online transactions. A copy of that correspondence and a transcript of one such telephone call between the Applicant and a BDM staff member was provided to the Tribunal. On my review of that transcript I agree with the Respondent's characterisation of that call as using inappropriate and offensive language, and being intimidating and harassing of staff.

Consideration

1. To determine whether, as the Respondent contends, the complaint is lacking in substance or its conduct does not disclose a contravention of the Act, it is necessary to first identify the elements the Applicant must establish, if leave is granted for the complaint to proceed. Those elements are: 1. That his 'severe personality disorder' is a disability as defined in section 49A of the Act; 2. The Respondent is a person who provides goods or services; 3. the Respondent refused to provide the Applicant with goods or services (s 49M(1)(a)) or provided him with goods or services on unfavourable terms (s 49M(1)(b)); 4. by doing so, the Respondent either: 1. Direct discrimination under s 49B(1)(a): treated the Applicant less favourably than it treated or would have treated a person without his disability in the same or similar circumstances (differential treatment of a comparator); or 2. Indirect discrimination under s 49B(1)(b): required the Applicant to comply with a requirement or condition which a substantially higher proportion of persons who do not have 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 Applicant does not or is not able to comply, and 1. one of the reasons for that treatment was his disability.
2. As discussed above, the Tribunal takes the Applicant's evidence at its highest in determining a leave application. However the Applicant has to provide the evidence for the Tribunal to support his claims.
3. Taking each of those elements in turn, although the Applicant has not provided any medical evidence, for the purposes of this leave application I accept on the basis of the statements made by him in his complaint and at the leave hearing that he has a disability, and that he informed BDM of that disability, being a 'severe personality disorder'.
4. The Applicant stated that the characteristics of his disability were the use of offensive language and verbal aggression, as manifested by him in phone communications towards BDM staff, which resulted in them escalating his application. Those may be his personal characteristics, but there is no evidence before me that offensive language and verbal aggression, intimidating or harassing conduct (as those phone calls have been described by the Respondent, and which I accept) are a characteristic that appertains generally to persons who have a severe personality disorder, or a characteristic that is generally imputed to persons who have a severe personality disorder. The evidence relied on by the Applicant, being his handwritten notes of conversations with BDM staff, refer to persons with severe personality disorder having "impulsive or self-destructive behaviour". Even if I accept that "impulsive or self-destructive behaviour" are characteristics that appertain generally to persons who have a severe personality disorder, I do not equate the Applicant's conduct in telephone calls towards BDM staff with those characteristics. So I accept that the Applicant has a disability, being a 'severe personality disorder', but I don't accept the characteristics of that disability relied on by the Applicant.

Allegation of services provided on less favourable terms

1. Whether the exercise of statutory functions are "services" within the meaning of the Act has been the subject of extensive discourse: IW v The City of Perth [1997] HCA 30; (1997) 191 CLR 1 and see, for example, discussion in Wade v Lord Howe Island Board Administration Office [2020] NSWCATAD 190 at [21] to [28]. I am not entirely satisfied that the assessment and processing of an application for a change of name under s 30 of the BDM Act relevantly constitutes "services" within the meaning of the Act. However the Respondent's letter to the Applicant dated 7 May 2021 titled 'Incident at the NSW Registry of Births Deaths and Marriages' stated: "The Registry is a NSW Government agency which provides services to members of the public concerning registrable events that have occurred or have deemed to have occurred within the state of NSW"
2. This provides some basis for the Applicant's submission that the assessment and processing of his CoN application constituted "services" provided by BDM. Accordingly for the purposes of this leave application I accept that the Respondent, in assessing and processing the Applicant's CoN application, was providing services to the Applicant within the meaning of s 49M of the Act.
3. The Applicant accepted at hearing that the fact the Respondent declined his application was not a refusal to provide services, as provided in s 49M(1)(a). He accepted that the issue of which he complained was the Respondent's processing of his application, which he alleged were services provided on less favourable terms than someone without his disability, pursuant to s 49M(1)(b).
4. Although not clearly articulated, the Tribunal understands the Applicant's allegation regarding "less favourable terms" in the context of s 49M(1)(b) of the Act to be the statements made by BDM staff to him when he made inquiries regarding the application, the imposition of requirements to provide additional information, and the conduct of a National Police Check which ultimately disclosed his criminal conviction.
5. Addressing the statements alleged to have been made to him by 'Teresa' and 'Tim Maund', even accepting the Applicant's evidence at its highest, I have no basis for finding that their comments constituted less favourable terms in providing a service pursuant to s 49M(1)(b) of the Act. As discussed above at 15, terms are the conditions on which the service is or will be performed; they are not part of the manner of actual performance. Whether or not BDM staff made comments to him which the Applicant found offensive, such comments would not constitute conditions by which the CoN application was assessed or processed.
6. In relation to the other terms and conditions alleged to have been imposed by the Respondent on the Applicant pursuant to s 49M(1)(b), the Applicant did not deny that he had failed to provide the relevant documents sought by the CoN application form initially. He also did not deny his criminal history, or that he had not disclosed his criminal history in his application, despite the application requiring such disclosures and the declarations he had completed, confirming his understanding that it was a punishable offence to give false or misleading information in the application and its supporting documentation. He claimed his failure to disclose his criminal history as required was inadvertent, and that it was irrelevant because it only became an issue once the Respondent had 'unfairly' required further information and documentation from him.
7. The Applicant complained that these requirements or conditions - asking him to provide further information and documentation, and subjecting his CoN application to a police check - constituted discrimination, because the Respondent did not have legitimate grounds to make those requests. The Applicant submitted that the Respondent was imposing the requirements to provide additional documentation to prove that his CoN was not for fraudulent purposes because of his conduct and behaviour towards BDM staff, when he called BDM to enquire about the status and processing of his application. He submitted that his conduct and behaviour was a characteristic of his disability, so to impose conditions or requirements on him because of that conduct or behaviour was discriminatory.
8. Considering the Applicant's claim under s 49M(1)(b) of the Act first, that the requests by BDM for further information and documentation from the Applicant, the escalation of his CoN application and the conduct of a police check were 'less favourable' or 'different' terms imposed on the Applicant by the Respondent than the terms imposed on persons without the Applicant's disability, there is simply no evidence before the Tribunal to support such a finding.
9. Accordingly, I find that the Applicant's complaint of discrimination under s 49M of the Act is lacking in substance and the Respondent's conduct does not disclose a contravention of the Act.

Allegation of direct discrimination

1. Turning to allegations of direct discrimination under s 49B(1)(a) of the Act, and taking the Applicant's evidence at its highest, there is no evidence beyond assertion by the Applicant that he was treated less favourably than the Respondent (through BDM) treated, or would have treated, a person without his disability in the same or similar circumstances. He has not identified a comparator, real or hypothetical, and has not provided any information or evidence regarding how an actual or hypothetical person without his disability would have been treated differently in the circumstances, those circumstances being the failure to provide required documentation and information in the context of BDM assessing and processing a CoN application.
2. The element of less favourable treatment requires the treatment afforded to Applicant to be compared with the treatment afforded by the Respondent to an actual or hypothetical person, in circumstances which are not materially different to those of the Applicant. As Gummow, Hayne and Heydon JJ explained in Purvis at [223], that evaluation requires "all of the objective features" surrounding the Applicant's complaint to be identified and then to ask: "[W]hat would have been done in those circumstances if the person concerned was not disabled?"
3. As submitted by the Respondent, it is difficult to see what information or evidence the Applicant could provide in circumstances where the processing and granting of a change of name application is done under the BDM Act and applies equally to everyone. The Applicant could not identify any possible evidence when pressed by the Tribunal at hearing. The only evidence he relied on, the two handwritten notes of conversations with BDM staff members, do not demonstrate any differential treatment, and do not provide any direct evidence of causation. The highest the Applicant's evidence goes is that a BDM staff member - not the decision maker - stated that he was aware of the Applicant's "type of disorder which constitutes impulsive and self-destructive behaviour" when he was informed by the Applicant of his disability, and then informed the Applicant that he would need to convince him that he wouldn't use his name for fraudulent purposes, which is required by s 6(a1) and supported by s 30(1)(b) of the BDM Act. Considering this conversation on 24 February 2021 occurred after the Applicant had provided BDM with a Medicare card in a different name on 19 February 2021, the staff member's statement is entirely accurate and appropriate.
4. There is no direct evidence of causation - of a link between the Applicant's disability and any of the requirements or conditions imposed on him, or his treatment by BDM staff in telephone calls. If there is no direct evidence of causation on the ground of disability, a causal link between the Applicant's disability and the alleged treatment would have to be established by inference from the available facts. Any such inference must be logical and reasonable and must show that a connection is probable. An inference cannot be made where more probable and innocent explanations are available on the evidence: see Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262; Dutt at [70].
5. There is clear evidence supporting the Respondent's reasons why the Applicant was required to provide additional documentation and information during its processing of the CoN application, and why the application was ultimately denied, which have nothing to do with the Applicant's disability. That evidence would support the Tribunal finding that the real, genuine, and true reason for the Respondent requesting further information and documentation from the Applicant was that he had not provided the required documentation necessary for the CoN application. The evidence and sections 6, 27, 29A and 30 of the BDM Act also demonstrate that the real, genuine and true reason for the escalation of the Applicant's CoN application was the concern raised by failed documentation checks through DVS. While the manner of the Applicant's responses to requests for missing information and documents may have contributed towards the escalation of the CoN application, there is no factual or legal basis for finding that the Applicant's responses were a characteristic of his disability, as alleged.
6. The conduct of a National Police Check which identified that the Applicant had failed to disclose a criminal conviction had absolutely nothing to do with the Applicant's severe personality disorder, and everything to do with the Applicant's failure to provide documentation, properly requested by BDM staff according to regular processes employed by BDM in assessing applications for CoN, pursuant to the Registrar of BDM's statutory functions and obligations, in particular s 6(a1), 29A and 30(1)(b) of the BDM Act. There is no evidence before the Tribunal to suggest otherwise.
7. There is an absence of any facts or alleged facts from which the Tribunal could make a reasonable and logical inference that any of the Respondent's conduct was committed because of the Applicant's disability, or any characteristics appertaining or imputed generally to persons with a severe personality disorder. The Respondent has put forward a clear and reasonable explanation supported by the statutory requirements of the BDM Act for its conduct. In the circumstances, the Tribunal could not and does not infer any causal connection between the Respondent's conduct and the Applicant's disability.
8. Accordingly, I find that the Applicant's complaint of direct discrimination is lacking in substance and the Respondent's conduct does not disclose a contravention of the Act.

Allegation of indirect discrimination

1. Indirect discrimination on the grounds of disability under s 49B(1)(b) of the Act would require the Applicant to comply with a requirement or condition with which a substantially higher proportion of persons who do not have a severe personality disorder 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 Applicant does not or is not able to comply. It would appear from the President's referral that his complaint of indirect discrimination relies on BDM staff members "imposing policies on me that have an unfair effect on me because of my severe personality disorder". In the President's Summary, this was expanded on to include: Staff were constantly hanging up the line in his face for no valid reason, deliberately disregarding his requests, and thinking that they were never wrong. Due to his severe personality disorder, he has difficulty controlling his anger especially when staff are behaving inappropriately towards him. As a result, the use of inappropriate language towards staff serves as a warning signal to stop this inappropriate behaviour from happening.
2. The Applicant did not clearly articulate which policies he was referring to, or how he was unable to comply with them because of his disability. There were no policies provided to the Tribunal in evidence. Considering the material which was put before the Tribunal I can only infer that the requirements or conduct being complained of by the Applicant in the context of his complaint of indirect discrimination by the Respondent were the BDM staff members' requests for further information and documents from the Applicant in the context of assessing and processing his CoN application, including the manner or conduct of those requests, the refusal of BDM staff to provide the Applicant with direct telephone numbers, and the ultimate decision by the Registrar of BDM on 7 May 2021 to restrict the Applicant from calling any phone number associated with the Registry for at least 12 months.
3. I note my earlier findings at 48 above that there was no evidence before the Tribunal upon which I would make a finding that verbal aggression and the use of offensive and inappropriate language were a characteristic of the Applicant's disability. Even if the Applicant was able to provide medical evidence to support the allegation that he was unable to comply with these requirements because of his severe personality disorder, or unable to conduct himself inoffensively in communications with registry staff because of his severe personality disorder, there is no evidence before the Tribunal that the requirements or policies they imposed on the Applicant were unreasonable. To the contrary, from having reviewed the transcript of a telephone call between the Applicant and a BDM staff member "Tim" (whether it is Tim Maund, Tim Cogle, or another Tim entirely), the Respondent's imposition of a requirement or condition of not providing direct telephone numbers and ultimately directing the Applicant not to contact the BDM Registry by phone for at least 12 months seems entirely reasonable, and I have already addressed why the requests for further information and documents from the Applicant were supported by the statutory requirements of the BDM Act.
4. Accordingly, I find that the Applicant's complaint of indirect discrimination is lacking in substance and the Respondent's conduct does not disclose a contravention of the Act.

Section 54 defence

1. The Respondent submitted that it would also rely on the defence available under s 54(1)(a) of the Act which provides that nothing in the Act makes unlawful anything done if it was necessary to do the act in order to comply with a requirement of another statute. Section 30(1)(b) of the BDM Act allows the Registrar to require the applicant to provide evidence to establish that the change of name is not sought for a fraudulent or improper purpose. I accept that this defence would be available to the Respondent in the event that the complaint proceeded.

Conclusion

1. I have found based on the material before the Tribunal and the oral evidence and submissions at the leave hearings on 4 August 2021 and 1 September 2021 that the Applicant's complaint is lacking in substance and the Respondent's conduct does not disclose a contravention of the Act. In those circumstances, taking into consideration the legislative scheme established by the Act and that the refusal of leave will finally determine the Applicant's rights under that scheme, but bearing in mind the objects of the Civil and Administrative Tribunal Act at s 3, I find that it would not be "fair and just" to grant the Applicant leave for his complaint against the Respondent to proceed.

Order 1. Leave is refused for the Applicant's complaint against the Respondent to proceed

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

Amendments 21 October 2021 - Paragraph 70 - words added "complaint proceeded." 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: 21 October 2021