Finau v Fariblue Pty Ltd t/as Batemans Bay Medical Centre

Dr Sarkar's summary dismissal application

1. Dr Sarkar sought an order, pursuant to s 102 of the AD Act, that the complaint against her be dismissed.
2. Section 102 of the AD Act provides: 102 Tribunal may dismiss complaint The Tribunal may, at any stage in proceedings relating to a complaint, dismiss the whole or any part of the complaint on a ground on which the President may decline the whole or any part of a complaint under section 92 (1) (a) (i) or (ii) or (b).
3. Section 92(1) of the AD Act provides as follows: 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 (iii) the nature of the conduct alleged is such that further action by the President in relation to the complaint, or any part of the complaint, is not warranted, or (iv) another more appropriate remedy has been, is being, or should be, pursued in relation to the complaint or part of the complaint, or (v) the subject-matter of the complaint has been, is being, or should be, dealt with by another person or body, or (vi) the respondent has taken appropriate steps to remedy or redress the conduct, or part of the conduct, complained of, or (vii) it is not in the public interest to take any further action in respect of the complaint or any part of the complaint, or (b) the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint, the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint.
4. In her written submissions, Dr Sarkar relied upon ss 102 and 92(1)(a)(i) to (v) of the AD Act as grounds for dismissal.
5. Section 102 only permits the Tribunal to summarily dismiss a complaint on a ground in s 92(1)(a)(i) or (ii) or (b). It may not dismiss a complaint on a ground set out in s 92(1)(a)(iii) to (v). Mr Magee, who appeared for Dr Sarkar, accepted this at the hearing and did not press the grounds in s 92(1)(a)(iii) to (v). This position is consistent with both the text of the legislation and with authority (see Seupule-Feau v Seventh Day Adventist Church (North NSW Conference) Ltd [2016] NSWCATAD 37 at [16]).

Medical Centre's application

1. The Medical Centre submitted that the complaint should be dismissed under ss 102 and 92(1)(a)(i) and (ii) of the AD Act. In the alternative, it submitted that it should be removed as a respondent, as it took all reasonable steps to prevent Dr Sarkar from contravening the AD Act, within s 53(3) of the AD Act.
2. By way of letter dated 12 June 2019, the Medical Centre also submitted that the matter should be dismissed for lack of prosecution and lack of compliance with the Tribunal's orders. The Tribunal has power to dismiss proceedings for a want of prosecution under s 55(1)(d) of the Civil and Administrative Tribunal Act 2013 ("NCAT Act").

Ms Finau's submissions

1. Ms Finau's position is that the proceedings should not be dismissed. She says that Dr Sarkar would not have told another person to go to the Aboriginal medical centre. Her submissions mainly addressed factual issues in dispute.

Hearing

1. We decided to set the matter down for a short hearing, at which the parties were permitted to appear by telephone. At our request, the Registrar wrote to the parties indicating that the Tribunal wished to raise a number of issues at the hearing, being: 1. whether the proceedings should be dismissed for want of prosecution pursuant to s 55(1)(d) of the NCAT Act (including whether the applicant has any reasonable explanation for not complying with the Tribunal's orders to lodge points of claim); 2. whether the complaint against the Medical Centre should be dismissed for being frivolous, vexatious, misconceived or lacking in substance, on the basis that the Medical Centre is not an "employer" or "principal" of Dr Sarkar within s 53 of the AD Act; 3. whether the complaint as a whole should be dismissed pursuant to s 102 of the AD Act as being frivolous, vexatious, misconceived or lacking in substance, on the basis that any "services" which were provided were provided to the applicant's daughter and not to the applicant.
2. Ms Finau appeared by telephone at the hearing; Mr Knox appeared for the Medical Centre; and Mr Magee appeared for Dr Sarkar, instructed by Mr Phipps.
3. In response to the Tribunal's questions, Ms Finau clarified that she was relying upon both s 19(a) and (b) of the AD Act in relation to her complaint. Section 19 provides as follows: 19 Provision of goods and services It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on the ground of race - (a) by refusing to provide the person with those goods or services, or (b) in the terms on which the other person is provided with those goods or services.
4. Ms Finau also stated that the complaint was about both her and her daughter. That is, she says that Dr Sarkar and the Medical Centre discriminated against her and her daughter by refusing them services and in the terms on which they were provided with services.
5. The Tribunal explained to her that the complaint which had been referred to the Tribunal was only a complaint about discrimination against Ms Finau, and not one about discrimination against her daughter.
6. The Tribunal raised with Ms Finau whether she had understood the Tribunal's directions to provide the Tribunal and the other parties with points of claim and evidence. She told the Tribunal that she thought she had done this. When asked to explain her understanding of points of claim, it appeared to the Tribunal that she did not understand what she had been asked to provide. Ms Finau emphasized that she was self-represented.

Principles governing dismissal of a complaint and summary dismissal

1. The respondents used the language of summary dismissal and dismissal of the complaint interchangeably. As it is a complaint which is referred to the Tribunal, the dismissal of a complaint would have the effect of dismissing the proceedings. If there is a relevant difference between the two concepts, it is not necessary to explore that difference now, other than to note that the authorities concerning the dismissal of a complaint under the AD Act tend to use slightly different language than the authorities concerning summary dismissal generally.
2. When considering an application to summarily dismiss a complaint under the AD Act, the facts on which the applicant relies are to be taken at their highest and the Tribunal is to consider whether they reveal an arguable case: Kitoko v Sydney Local Health District [2018] NSWCATAP 38 at [41]; Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38 at [27]; Alchin v Rail Corporation NSW [2012] NSWADT 142 at [19]-[26]; Razaghi v Director-General, NSW Department of Health [2002] NSWADT 4 at [38].
3. The power to dismiss a complaint under s 102 of the AD Act must be exercised with extreme caution: Kitoko v Sydney Local Health District [2018] NSWCATAP 38 at [41]; Seventh Day Adventist Church (North NSW Conference) Ltd v Seupule-Feau [2016] NSWCATAP 256 at [24]; Commissioner of Police, New South Wales Police Service v Orr [2001] NSWADTAP 16. The need for the exercise of caution is even greater where the summary dismissal application is made prior to the adducing of the applicant's evidence at the substantive hearing: Kitoko v Sydney Local Health District [2018] NSWCATAP 38 at [41]; Karekar v TAFE Commission of New South Wales [2000] NSWADT 187 at [36].
4. The authorities concerning summary dismissal indicate that, as a general proposition, a complaint should not be summarily dismissed except in the clearest of cases: Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91; Kitoko v Sydney Local Health District [2017] NSWCATAD 209 at [10]; Eagle Arts and Vocational College v State of New South Wales [2018] NSWCATAD 147 at [11].
5. In Eager v North Sydney Retirement Trust [2018] NSWCATAP 50 at [24], the Appeal Panel said that, when considering a summary dismissal application, the Tribunal should comply with what French CJ and Gummow J said in Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 at [24]-[25]. The relevant passage from their Honours' judgment is as follows: 24 The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies where such a disposition is sought in a summary judgment application supported by evidence. As to the latter, this Court in Fancourt v Mercantile Credits Ltd said: "The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried". 25 More recently, in Batistatos v Roads and Traffic Authority (NSW) Gleeson CJ, Gummow, Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde which included the following: "Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way."
6. The power to dismiss for want of prosecution may be exercised having regard to the "guiding principle" in s 36 of the NCAT Act: Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 at [11].

Is the complaint frivolous, vexatious, misconceived or lacking in substance and/or would the alleged conduct contravene the AD Act?

1. The words "frivolous, vexatious, misconceived or lacking in substance" refer to the "insufficiency or to the absence of merit or factual basis for the allegations made in the complaint rather than to whether the complaint is one within the provisions of the Act at all": Langley v Niland [1981] 2 NSWLR 104 at 107; Eagle Arts and Vocational College v State of New South Wales [2018] NSWCATAD 147 at [11]. The term "lacking in substance" has been interpreted to mean "not reasonably arguable": Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 at [22].
2. 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": State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at [14]; Alchin v Rail Corporation NSW [2012] NSWADT 142 at [25] and [26]; Eagle Arts and Vocational College v State of New South Wales [2018] NSWCATAD 147 at [12].
3. Dr Sarkar submits that the alleged conduct, if proved, would not disclose a contravention of the AD Act and that the complaint is misconceived or lacking in substance. This is because, in her submission: 1. services were provided to Ms Finau's daughter, but not to Ms Finau; 2. if services were provided to Ms Finau (contrary to Dr Sarkar's submission), there is nothing to establish that Ms Finau was refused services; 3. there is no basis upon which Ms Finau would be able to demonstrate that she or her daughter were treated less favourably by Dr Sarkar than a person of a different race would be treated in circumstances which were not materially different.
4. The Medical Centre submits that the information about the Aboriginal Medical Centre, which Dr Sarkar provided to Ms Finau, was provided in good faith with the view of informing her about all treatment options. It says that this matter is at most a case of miscommunication. It submits that advising Ms Finau about the availability of a specialised medical service that provides services that the Medical Centre could not provide could not be construed as a form of discrimination.

Was Ms Finau a recipient or potential recipient of services?

1. There is no question that Dr Sarkar provided medical services to Ms Finau's daughter, who was the patient. There is a question, however, as to whether she also provided, or refused to provide, services to Ms Finau, within s 19 of the AD Act. "Services" is defined in an inclusive way in s 4 of the AD Act and includes "services of any profession." It has its ordinary meaning.
2. We consider that Ms Finau has an arguable case that Dr Sarkar provided services to her.
3. Ms Finau attended the practice as her daughter's carer. As a parent, she was responsible for her daughter's health. It is common for a doctor to speak to both a child patient and to the parent who accompanies the child, when providing medical services to the child. A general practitioner may, for example, give a script to a parent to have filled, and may advise the parent how to manage a child's medical condition. In this case, Ms Finau claims that Dr Sarkar advised her to take her daughter to the Aboriginal Medical Centre, informed her that her daughter probably had inflamed tonsillitis and told her to give her daughter Panadol.
4. It would be open to a Tribunal to find that the provision of such advice is a service which Dr Sarkar provided to Ms Finau.
5. Ms Finau also claims that Dr Sarkar refused to provide services to Ms Finau and her daughter. Ms Finau states that, contrary to what Dr Sarkar says, Dr Sarkar did not examine Ms Finau's daughter. Secondly, she claims that, when they left the practice, Dr Sarkar said, "next time its best to go to the aboriginal medical centre."
6. We are required to take the facts Ms Finau relies upon at their highest. We consider that, having regard to those facts, there is an arguable case that Dr Sarkar refused to provide Ms Finau with the services of examining her daughter and providing advice about the examination. That could constitute a refusal to provide a particular kind of medical services, even if Dr Sarkar provided a more limited kind. It is also reasonably arguable that Dr Sarkar's parting comment (accepting, for the purposes of the summary dismissal application, that Dr Sarkar made it) constituted a refusal to provide future medical services.
7. Accordingly, we are not persuaded, on this basis, that we should dismiss the complaint made under s 19(a), concerning the alleged refusal of services, nor the complaint under s 19(b), concerning the terms on which Ms Finau was provided with services.

Less favourable treatment

1. Dr Sarkar claims that the complaint should be dismissed because Ms Finau could not demonstrate that she or her daughter were treated less favourably by Dr Sarkar than a person of a different race would have been treated.
2. Ms Finau has not identified an actual comparator (someone who was not indigenous who was, in fact, treated more favourably than she was). If the matter were to proceed to hearing, Ms Finau would need to rely upon a hypothetical comparator.
3. Ms Finau alleges that Dr Sarkar repeatedly told her to take her daughter to the Aboriginal Medical Centre. It would be open to a Tribunal to infer that Dr Sarkar would not have told a non-Aboriginal person, or a person whose daughter was not Aboriginal, to go to that medical centre in the same or similar circumstances. The contention that Ms Finau was treated less favourably than a non-Aboriginal person is reasonably arguable.

Factual matters

1. The matters relied upon by the Medical Centre in support of the summary dismissal application largely focus upon the construction which it says should be given to the facts. As already indicated, the Tribunal is required to take the facts, as put forward by Ms Finau, at their highest. As the Administrative Decisions Tribunal put it in Stanborough v Woolworths Ltd [2005] NSWADT 203 at [28]: "In the absence of extraordinary circumstances disputed questions of fact should not be resolved in a summary dismissal application. Where there is factual dispute the applicant's version of the facts should be accepted for the purpose of determining whether the complaint should be summarily dismissed. Consequently, we must proceed on the basis that everything which the applicant has put in evidence is true (see Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35]). There is, however, a distinction between evidence advanced by the applicant and the conclusions which the applicant suggests can be reasonably drawn from that evidence. We are under no obligation in a summary dismissal application to accept, without question, the applicant's assertions about a conclusion which may be drawn from the evidence. The Tribunal may reach its own conclusions about that which may be drawn from the evidence."
2. Accordingly, to the extent that the Medical Centre has advanced a case for summary dismissal which relies upon a different version of the facts from that put forward by Ms Finau, this has not assisted us in resolving the summary dismissal application. The Medical Centre's version of the facts would, of course, be considered by the Tribunal, should the matter go to a final hearing.

Whether provision of advice capable of constituting discrimination

1. The Medical Centre also submits that the provision of advice to Ms Finau about the availability of a specialised medical service could not be construed as being discriminatory.
2. This submission does not come to terms with the nature of Ms Finau's complaint. She is complaining either that she was refused medical services (because her daughter was not examined and because she was advised to go to a different medical centre in future) and/or that the terms on which the service was provided were unfavourable (at least in part because she was repeatedly told during the consultation to go elsewhere).

Want of prosecution

1. The Medical Centre says that the matter should be dismissed, under s 55(1)(d) of the NCAT Act, for want of prosecution.
2. Ms Finau failed to file and serve points of claim and evidence by 9 April 2019 as she was required to do by the Tribunal's directions. In purported compliance with the directions on the summary dismissal application, Ms Finau sent a document to the Tribunal on 3 June 2019, which she failed to serve on the Medical Centre. It appears that she served it on Dr Sarkar. This was required to be filed and served by 11 June 2019.
3. The principles relevant to dismissal for want of prosecution were considered by the Appeal Panel in Bousgas v HD Constructions (Aust) Pty Ltd [2017] NSWCATAP 122 at [27]-[33]. The Appeal Panel relied (at [28]) upon the principles set out in Hoser v Hartcher [1999] NSWSC 527 at [19], including that "the ultimate question is whether, on balancing the prejudice to the respective parties by making or not making an order, justice demands that the action be dismissed." Another relevant principle in that case is that "the discretion should be exercised only in a clear case where it is manifestly warranted."
4. The Appeal Panel also observed (at [33]) that ss 36(1), (3) and (4) and s 38(5)(c) of the NCAT Act impose obligations on the Tribunal and the parties which must be taken account of in considering whether to make an order to dismiss proceedings for want of prosecution under s 55(1)(d) of the NCAT Act.
5. It was apparent to us, at the hearing, that Ms Finau did not understand what points of claim are or what she was supposed to do to comply with the Tribunal's directions. Points of claim are a form of pleading of some technicality. It is not surprising that a self-represented litigant did not know how to formulate points of claim. Ms Finau attempted to comply with the Tribunal's second set of directions by filing and serving a copy of a document on one respondent, but failed to serve the document on the other respondent. This may simply reflect her lack of understanding of Tribunal procedure.
6. The Tribunal's objects include to "ensure that the Tribunal is accessible and responsive to the needs of all of its users" (NCAT Act, s 3(c)). Where self-represented litigants have difficulties understanding Tribunal procedures and complying with Tribunal directions, some latitude is necessary to ensure that the Tribunal remains accessible and responsive to the parties' needs.
7. Ms Finau had an obligation under s 36(3)(a) of the NCAT Act to cooperate comply with the Tribunal to give effect to the guiding principle, including by complying with the Tribunal's directions. It is arguable that she did not comply with that obligation when she failed to file or serve points of claim (or any other document). Nevertheless, in circumstances where her understanding of the Tribunal's directions was limited, we would not exercise our discretion to dismiss the proceedings. We do not consider that "justice demands that the action be dismissed" or that this is a "clear case" where dismissal "is manifestly warranted."

Should the complaint against the Medical Centre be dismissed?

1. The complaint against the Medical Centre depends upon it being liable for Dr Sarkar's conduct as her "employer" or as her "principal" under s 53 of the AD Act.
2. We raised with the parties the question of whether the Medical Centre is Dr Sarkar's "employer" or "principal."
3. Section 53(1) of the AD Act provides: An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.
4. The Medical Centre is not Dr Sarkar's employer. Dr Sarkar works for a company, AA Medical Services Pty Ltd. The Tribunal understands that that company has an agreement with the Medical Centre under which Dr Sarkar is permitted to provide medical services at the Medical Centre's premises, but this is not in evidence. The Medical Centre describes Dr Sarkar, in its submissions, as an independent contractor.
5. A "principal" is defined in s 4(1) of the AD Act, in relation to a contract worker, as "a person for whom a contract worker performs work otherwise than under a contract of employment." A "contract worker" is "an employee who, under a contract of employment performs work for an employer who has undertaken to perform that work for another person."
6. The Medical Centre did not seek to demonstrate, at the hearing, that it was not Dr Sarkar's principal. In the absence of any evidence to indicate that Dr Sarkar does not perform work as an employee of AA Medical Services Pty Ltd, or that AA Medical Services Pty Ltd had not undertaken to perform the work for the Medical Centre, we are not prepared to conclude that the Medical Centre is not a "principal." That will be a matter for evidence at the hearing.

Should the Medical Centre be removed as a respondent?

1. The Tribunal may order that a person be removed as a party to proceedings under s 44(2) of the NCAT Act if the Tribunal considers that the person has been improperly or unnecessarily joined, or that the person has ceased to be a proper or necessary party.
2. The Medical Centre says that it should be removed as a party because there is no evidence that it has contravened the AD Act, and because it has made out the exception in s 53(3) of the AD Act.
3. The Medical Centre may be liable under s 53(1) of the AD Act for Dr Sarkar's contravention of that Act (assuming that it is her principal). Accordingly, the lack of evidence that it has otherwise contravened the AD Act is not to the point.
4. The question of whether the Medical Centre "took all reasonable steps to prevent" Dr Sarkar from contravening the AD Act within s 53(3), is a factual question best resolved at a hearing. The strength or otherwise of the Medical Centre's defence does not indicate that it has been improperly or unnecessarily joined to the proceedings or that it has ceased to be a proper or necessary party.
5. Accordingly, we have decided not to remove the Medical Centre as a party.

Orders

1. The Tribunal makes the following orders: 1. The respondents' summary dismissal applications are dismissed. 2. The first respondent's application to be removed as a party is dismissed. 3. The Registrar is to list the matter for directions.

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: 10 December 2019