GXM v Becton Dickinson Pty Limited [2025] NSWCATAD 62

1. The 26 cm Foley catheter was sourced by the applicant directly from a number of medical supply companies and was manufactured by a US based company, Becton Dickinson and Company, which is the parent company of the respondent. The respondent, Becton Dickinson Pty Ltd, is the Australian subsidiary company of US company, Becton Dickinson and Company. The respondent does not manufacture any products and supplies and distributes products manufactured by its US parent in Australia. In 2017, the US company that manufactured and distributed the 26 cm Foley catheter globally, CR Bard Incorporated, was acquired by the US Becton Dickinson company. Cr Bard had an Australian subsidiary, Bard Australia Pty Ltd. After the acquisition, this company changed its name to Becton Dickinson Pty Ltd. The 26 cm Foley catheter is often referred to as the BARD 26 cm Foley catheter and the respondent is occasionally referred to be witnesses and staff of the respondent as 'BARD', particularly in email correspondence.
2. In 2022 and 2023, the US parent discontinued the manufacture of the 26 cm Foley catheter. In February 2023, the applicant contacted her regular supplier to reorder the catheter and was advised the product had been discontinued. She has been unable to obtain the 26 cm Foley catheter in Australia and contends that she has been unable to source an alternative for the 26 cm Foley catheter. The applicant contends that the only catheter available is a "male" length catheter, which is not suitable for women or people with a disability who require a shorter catheter. The discontinuance of the 26 cm Foley catheter and refusal to supply the product is alleged to be unlawful discrimination on the grounds of both sex and disability.
3. On 17 March 2023, the applicant lodged a complaint with the NSW Anti-Discrimination Board (ADB) against the respondent and Joanna Cubis, an employee of the respondent, alleging sex discrimination in the provision of goods and services. A delegate of the President of the ADB accepted for investigation the complaint under s 89B of the Anti-Discrimination Act 1977 (NSW) (ADA) against the respondent but declined the complaint against the employee as the conduct attributed to her was done in her capacity as an employee and representative of the respondent. A further complaint was made by the applicant alleging disability discrimination in respect of the provision of goods and services and this complaint was accepted for investigation on 8 December 2023. The period of the alleged conduct was identified by the ADB to be the period from 1 February 2023 and 17 March 2023. The ADB identified that the complaint involved allegations of sex and disability discrimination.
4. The parties attended a conciliation conference on 25 September 2023; however, they were unable to reach an agreement. The matter was referred to the Tribunal under s 93C(b) of the ADA, which provides that if the President has endeavoured to resolve a complaint by conciliation but has not been successful in his or her endeavours, the President is to refer the complaint to the Tribunal. The complaint was referred in accordance with the provisions of the ADA and that the Tribunal has jurisdiction in relation to the matter pursuant to s 29 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
5. The proceedings were listed for mediation on 31 July 2024 and then for directions. Directions were made about the conduct of the hearing, and the proceedings were listed for hearing before us on 14 November 2024. Written and oral evidence was provided by both parties, including witness statements from officers of the respondent and evidence from the applicant. The applicant represented herself and the respondent was legally represented.
6. After the hearing, the Tribunal formed a view that it may be desirable, by reason of the confidential nature of the evidence about the applicant's private health information, to make an order under s 64(1)(a) of the NCAT Act prohibiting or restricting the disclosure of the name of the applicant by using a pseudonym. The Tribunal wrote to the parties requesting submissions about whether confidentiality orders should be made. The applicant responded that she did not object to the decision being published with a pseudonym and that the application for orders under s64(1)(a) could be made without a hearing. The respondent advised that it did not object to a confidentiality order being made. In the absence of submissions to the contrary and having regard to the provisions of s 64(1(a), the Tribunal determined to make confidentiality orders, and the applicant is to be known by the pseudonym GXM to protect her privacy.
7. There is no dispute about the applicant's disability, the characteristics of the 26 cm Foley catheter or that the respondent's US parent company had discontinued manufacture of this product by the time the applicant sought to re-order the product and that the product has not been able to be sourced by the applicant in Australia from this time. There are alternative products available, but the applicant contends these products are not suitable and that she, and other people with a disability who are for instance bedridden or users of wheelchairs, are disadvantaged. She wants the manufacture of the 26 cm Foley catheter product to be reinstated.
8. The respondent contends that it did not discriminate against the applicant on either ground, it does not supply catheters directly to the public but to distributors, hospitals and aged care facilities and it did not refuse to supply the 26 cm Foley catheter to the applicant. The 26 cm Foley catheter is, and remains, unavailable because of a commercial decision made by the US parent company not to continue to manufacture the product.

1. The ADA renders discrimination unlawful on certain grounds and in certain circumstances. The grounds include discrimination on the grounds of race, sex, disability, transgender, marital or domestic status, religion, carer responsibilities, homosexuality and age.
2. Section 4A provides:

4A Act done because of unlawful discrimination and for other reasons

If--

(a) an act is done for 2 or more reasons, and

(b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act),

then, for the purposes of this Act, the act is taken to be done for that reason.

1. Part 3 deals with discrimination on the ground of sex.
2. Section 24 sets out what constitutes discrimination on the grounds of sex and relevantly provides:

(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of sex if the perpetrator -

(a) on the ground of the aggrieved person's sex or the sex 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 of the opposite sex or who does not have such a relative or associate of that sex, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons of the opposite sex, or who do not have a relative or associate of that sex, 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.

(1A) For the purposes of subsection (1) (a), something is done on the ground of a person's sex if it is done on the ground of the person's sex, a characteristic that appertains generally to persons of that sex or a characteristic that is generally imputed to persons of that sex.

1. Divisions 2 and 3 of Part 2 set out the particular fields and particular activities within those fields where discrimination on the grounds of sex will be unlawful. Division 2 relates to "Discrimination in work" and Div 3 relates to "Discrimination in other areas". Relevantly, s 33, which is within Division 3, provides:

(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against another person on the ground of sex--

(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) Where a skill is commonly exercised in a different way in relation to men and women, a person does not contravene subsection (1) by exercising the skill in relation to men only, or women only, in accordance with the person's normal practice.

1. Part 4A deals with discrimination on the ground of disability.
2. Section 49A provides that disability includes past, future and presumed disability. Section 4 defines the terms "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.

1. Section 49B sets out what constitutes discrimination on the ground of disability and provides:

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.

(3) For the purposes of, but without limiting, this section, the fact that a person who has a disability of or relating to vision, hearing or mobility has, or may be accompanied by, a dog which assists the person in respect of that disability, is taken to be a characteristic that appertains generally to persons who have that disability, but nothing in this Act affects the liability of any such person for any injury, loss or damage caused by the dog.

(3A) For the purposes of, but without limiting, this section, the fact that a person who has a disability--

(a) is accompanied by, or possesses, a palliative or therapeutic device, or other mechanical equipment, that provides assistance to the person to alleviate the effect of the disability, or

(b) is accompanied by an interpreter, a reader, an assistant, or a carer, who provides interpretive, reading or other services to the person because of the disability, or because of any matter related to that fact,

is taken to be a characteristic that appertains generally to persons who have that disability.

(4) A reference in this section to persons who have a disability ("the particular disability") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.

1. Part 4A is similar in structure to Part 2. Divisions 2 and 3 of Part 4A set out the particular fields and particular activities within those fields where discrimination on the grounds of disability will be unlawful. Division 2 relates to "Discrimination in work" and Div 3 relates to "Discrimination in other areas". Relevantly, s 49M, which is within Division 3, provides as follows:

(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.

1. Section 49C sets out what constitutes "unjustifiable hardship" for the purposes of Part 4A and provides:

In determining what constitutes unjustifiable hardship for the purposes of this Part, all relevant circumstances of the particular case are to be taken into account including--

(a) the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned, and

(b) the effect of the disability of a person concerned, and

(c) the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship.

1. Section 90 of the ADA provides that the President is to investigate each complaint that has been accepted under s 89B, which may be amended pursuant to s 91C. There are various provisions of the ADA, including sections 93A, 93B and 93C, which set out circumstances when the President must, or may, refer the complaint to the Tribunal. Section 103 provides that the Tribunal may, on the application of a party to a complaint or on its own motion, at any stage in proceedings relating to the complaint, amend the complaint. A complaint may be amended to include additional complaints and anything else that was not included in the complaint as investigated by the President.
2. The powers of the Tribunal in dealing with a complaint are set out in s 108, which relevantly provides as follows:

(1) In proceedings relating to a complaint, the Tribunal may--

(a) dismiss the complaint in whole or in part, or

(b) find the complaint substantiated in whole or in part.

(2) If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following--

(a) except in respect of a matter referred to the Tribunal under section 95 (2), order the respondent to pay the complainant damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct,

(b) make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations,

(c) except in respect of a representative complaint or a matter referred to the Tribunal under section 95 (2), order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant,

(d) order the respondent to publish an apology or a retraction (or both) in respect of the matter the subject of the complaint and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both),

(e) in respect of a vilification complaint, order the respondent to develop and implement a program or policy aimed at eliminating unlawful discrimination,

(f) make an order declaring void in whole or in part and either ab initio or from such time as is specified in the order any contract or agreement made in contravention of this Act or the regulations,

(g) decline to take any further action in the matter.

1. As observed by the Appeal Panel in State of NSW v Whiteoak [2014] NSWCATAP 99 (Whiteoak) at [134], the ADA renders unlawful racial, sex and other types of discrimination "in certain circumstances". It does not render unlawful every instance of discriminatory treatment of a person on the grounds of unlawful discrimination specified in the ADA, noting that the ADA renders discrimination on one of the specified grounds unlawful only in specific areas of activity. The Appeal Panel notes at [135] that the ADA specifies the same areas of activity for most of the grounds of discrimination and that the areas of activity are generally divided into two categories, namely "Discrimination in work" and "Discrimination in other areas".
2. In Whiteoak, it was alleged that the Commissioner of Corrective Services and other Corrective Services officers had discriminated against the applicant on the ground of race in making a number of decisions relating to classification and development programmes. The Appeal Panel was considering whether the classification of inmates could constitute the providing a service within the meaning of s 19 of the ADA. The Appeal Panel ultimately found that classifying inmates did not constitute a "service" but made the following observations in the context of its task:

139. Given the title and structure of the AD Act and in the light of the observations of the Court of Appeal and High Court on the nature of the prohibitions in that and similar Acts referred to above, it should be accepted that s 19 is not, on its terms and in the context of the AD Act as a whole, a general prohibition on racially discriminatory conduct and it should not be construed or applied so as to have that effect. In that sense, the appellant's contention that the expression "goods or services" in s 19 are words of limitation which forms part of ground 2 is correct.

140. Consequently, it would be an error to adopt a construction of s 19 that was so broad as to render unlawful every instance of discrimination constituted by differential, detrimental treatment on the ground of race. Such a construction might effectively render the other sections in Part 2, Divisions 2 and 3 of the AD Act unnecessary.

1. These observations make it clear that the ADA does not make all discriminatory treatment unlawful. Under the structure of the ADA, discriminatory conduct is defined in respect of each ground and other provisions within the ADA prescribe the circumstances where such discriminatory conduct will be unlawful. As such, and relevant to the allegations made in this case, unlawful discrimination on the grounds of sex and/or disability must be referable to particular fields or activities, in this case either pursuant to ss 33 or 49M of the ADA.

1. The Tribunal was provided with a bundle of documents by the applicant, including an affidavit sworn 11 September 2024. Attached to the affidavit were extracts of email correspondence with the respondent, the ADB and other organisations about the supply of a shorter "female" catheter, photographs of the 26 cm Foley catheter and other catheters, by way of comparison, diagrams about how the catheters worked, copies of documents from the Therapeutic Goods Administration (TGA) about the approval of the Foley catheter and a letter from specialist, Dr David Ende, dated 25 September 2023. Further documents were provided on 8 November 2024 which comprised correspondence between the applicant and the TGA. The applicant gave oral evidence at the hearing and made an opening statement, which was written, and was provided to the Tribunal and the respondent at the hearing. The opening statement represents an outline of the applicant's submissions and is summarised below.
2. The Tribunal was also provided with a statement from Joanna Cubis, who is the marketing manager for the respondent, and Mr Stuart Hayes, interventional business director of the respondent. Ms Cubis outlined the communications between the respondent and the applicant and included evidence about the discontinuance of the 26 cm Foley catheter and alternative products that were available. Mr Stuart Hayes gave evidence about the reasons why the 26 cm Foley catheter was discontinued and whether it could or would be reintroduced into Australia. Ms Cubis and Mr Hayes both gave oral evidence.

1. The applicant provided written submissions, which included evidence about what happened, this being the impact of not having access to the 26 cm Foley catheter, her attempts to obtain alternative suitable catheters and her concerns about the lack of supply of a female length catheter. She also gave oral evidence and relied on email correspondence and written complaints recording factual matters which she contends gives rise to her claims. This evidence is summarised below.
2. The applicant said that she had been using the 26 cm Foley catheter, which she described as being the "female" Foley catheter, for many years. She believes that the respondent, or its US parent company, made a strategic decision to rationalise its product through 'Project Recode'. This resulted in the US parent company and the respondent no longer producing or distributing the 26 cm Foley catheter. This disadvantaged women and shorter people in wheelchairs and was particularly unsafe for her. There was a potential for kinking with the longer tubing for the catheter and this could not be appropriately addressed by using a clip (or "stabiliser") and leg bag. Not only was there potential for kinking, which posed a greater risk for her in terms of infection, but it was unsightly and dangerous because the leg bag would need to rest on the feet plates of the wheelchair because of its length. This was dangerous because it could fall off and the tube could be pulled out. It was also unsightly. The applicant provided samples of the different length catheters at the Tribunal hearing and explained to the Tribunal why the longer catheters were unsuitable for her.
3. The dispute with the respondent arose when the applicant attempted to reorder the 26 cm Foley catheter from her usual supplier in February 2023. Attached to the applicant's bundle of documents and included in the exhibit to Ms Cubis' statement, are extracts of email correspondence between the applicant and the respondent about this issue.
4. The emails reveal that Gabriella Weiss, Territory Manager NSW/ACT, Urology and Critical Care for the respondent, sent an email to the applicant on 20 February 2023 apparently in response to a telephone call from the applicant enquiring about supply of the 26 cm Foley catheter. The email was to the effect that BARD currently did not have a female length catheter anymore and that the closest alternative was still a BARD catheter, but it was a standard length. It was recommended that the applicant use the standard-length BARD catheter as an alternative. The applicant responded on the same day, stating that she considered it extraordinary that no female catheter was available and that, as a wheelchair user, to use something that is double in length is dangerous. In an email response, again on the same day, Ms Weiss apologised for the inconvenience and said that she would bring it to the attention of the product manager.
5. The following day Ms Weiss sent an email to the applicant making a suggestion about a urine leg bag to reduce the length, to which the applicant responded that she knew about this alternative but still considered it unsuitable for a range of reasons.
6. The applicant made a formal complaint by email on 23 February 2023 to the complaints area of the respondent. This complaint formed the basis of her complaint to the ADB and the submissions she has made in support of her claim in these proceedings. The applicant noted that she had used a suprapubic catheter in situ since 1993 and had successfully used a BARD female catheter from this time. The catheter was 26 cm in length with a 10-millimetre balloon. She noted that when she went to re-order the product from her supplier, she was told that it had been discontinued. The applicant further noted that when she asked for an alternative female product, she was told that none were available but that she could purchase an equivalent male length catheter. The applicant raised concerns with the respondent that women were at least 50% of the general population and that she needed a shorter wider catheter which was more suited to her physiology as a female. The applicant stated that this meant women with the paralysed bladder were being considered as less worthy of being specifically catered for when compared to the needs of their male counterpart. This exposed her, as a female, to a higher risk of infection from a failure to completely drain her bladder because a long catheter on a short body drains less well due to kinking and bending of the tubing.
7. Following this email, Ms Cubis sent an email to the applicant dated 24 February 2023 apologising for the change in the product line. She left a voicemail and invited the applicant to telephone her. According to Ms Cubis, there were several unsuccessful attempts between the applicant and her to contact each other by telephone and she did not make direct contact with the applicant prior to the applicant lodging her complaint with the ADB.
8. According to the applicant, she has been unable to find a suitable alternative "female" Foley catheter. On 21 February 2023 she emailed CH2 (Clifford Hallam Healthcare) and ordered a box of Foley catheters with a short tube leg bag. On receiving the box, she noted that they were not the shorter 26 cm length catheters but the longer 40 cm catheters. She advised CH2 that she was on the lookout for a suitable 22-gauge female length catheter with a 10-millimetre balloon. Following this, the applicant sent an email to Independence Australia, which, among other things, supplies disability products online, and asked whether it supplied a product that would be a replacement product for her existing 22-gauge "female" 26 cm 10-millimetre balloon catheter. By email dated 9 March 2023 the customer service officer of Independence Australia advised that there was no such product available.
9. Since January 2024, the applicant has been using the Coloplast Foley catheter. This was one of the catheters recommended by the respondent in its response to her complaint to the ADB dated 8 September 2023. The catheter is called the Releen Inline Foley Female 20F, which she purchased directly as a customer from Coloplast. The applicant states that the Coloplast Foley catheter is a good product and an acceptable alternative but not her "best fit" because the gauge is narrower in diameter than she would prefer.
10. The applicant confirmed in her oral evidence, in response to questioning by the respondent, that she had never purchased the 26 cm Foley catheter directly from the respondent.
11. The applicant relies on the letter from Dr Ende in support of her application. According to Dr Ende, the applicant has been under his care since 2020. Due to complications associated with her cerebral palsy she has required a permanent suprapubic catheter since 1993. She has been using a 22-gauge 26-centimetre BARD catheter. Dr Ende notes that the alternative is a male catheter with longer tubing which would not be fit for purpose in his opinion and would lead to the increased probability of a urinary tract infection and increased potential for physical hazard, given that the catheter bag and longer tubing would have to rest on the footplate of the wheelchair, and it could easily slip off. This would also be on public display and could impose significant emotional trauma to the applicant.

1. At the hearing, Ms Cubis confirmed the contents of her statement. She commenced employment with Bard Australia Pty limited in 2015. After Bard Australia was acquired by the respondent in 2017, she was promoted to national sales manager in October 2022. Ms Cubis became marketing manager on 4 March 2024. In her previous role, she managed a team who were involved in selling a range of urology products, including urinary catheters. In her current role, she is responsible for managing product managers and leading the strategy of the respondent's interventional division. The division comprises three businesses, being urology and critical care, surgery and peripheral intervention. Ms Cubis states that the US parent company discontinued production of the 26 cm Foley catheter on or about 30 September 2021 because it was not selling enough of the product. It is standard practice for the respondent to notify its business customers, including distributors who sell the products to patients, of the discontinuance of a product. She notes that there have been 15 products discontinued in recent years and that only two separate catheter products, which were previously described as female, were discontinued.
2. The products that were discontinued were the 26 cm Foley catheter and the BIOCATH Foley catheter. Ms Cubis states that it is responsibility of distributors to advise their customers, being patients and end users, when a product is being discontinued.
3. According to Ms Cubis, the shorter length catheters manufactured by the US company were labelled as "female" and the longer length catheters were labelled as standard. This was to take account of the differences in urethra length between females and males. She states that the shorter length catheters could be used by females whereas the standard-length catheters could be used by either gender. There are two alternative products currently sold by the respondent, being the BIOCATH Foley catheter or the Bardex IC Foley catheter, 2-way. The alternative products are 40 centimetres in length but there is a Statlock securement device which can be used in conjunction with the catheter to help stabilise, secure and position the catheter. Ms Cubis also notes that there are leg bags which have different inlet links. These alternatives were brought to the applicant's attention as evidenced by the correspondence between Ms Wiess and the applicant. The respondent also provided to the applicant with a list of products sold by other companies which are similar to the discontinued product and shorter in length.
4. Ms Cubis states that the respondent previously sold a suprapubic catheter kit to healthcare providers and the catheter was inserted through a small incision the abdomen to assist in drainage of urine from the bladder. She believes that these kits were always 40 centimetres in length. Ms Cubis states that the purpose of all Foley catheters sold by the respondent is to drain urine from the bladder irrespective of the person's gender or disability.
5. Mr Stuart Hayes, interventional business director of the respondent, provided a witness statement dated 6 November 2024. He confirmed the contents of his statement at the hearing and this evidence is summarised below.
6. Mr Hayes commenced employment with the respondent in about August 2022 and is responsible for the respondent's interventional business division. According to Mr Hayes, the respondent's US parent company, Becton Dickinson and company, is a US company listed on the New York Stock Exchange. It is a medical technology company which both manufacturers and sells medical products. In 2017, the U.S. parent company acquired CR Bard Incorporated which commenced its manufacture of the Foley urinary catheter in the US in 1937. After the acquisition, the US parent company now has approximately 75,000 employees.
7. The 26 cm Foley urinary catheters were manufactured by Becton Dickinson and Company. These catheters were not manufactured in Australia and have always been manufactured overseas. The respondent, which is a wholly owned Australian subsidiary company previously known as Bard Australia Pty Ltd, does not manufacture any products and supplies and distributes the products of the US parent company in Australia. It does not sell any products to individuals end-users such as the applicant. Nor does it have an e-commerce platform that could permit individuals to purchase any of the products directly online.
8. The respondent sells medical devices to health care providers, including hospitals, residential aged care facilities and distributors. Distributors are businesses that enter into an agreement with the respondent to sell products to end-users. There is no agreement directly between the respondent and individual consumers. For a business to become and remain a recognised distributor of the respondent, distributors are required to meet certain criteria which include having an Australian business number and purchasing a minimum of $10,000 worth of products. The respondent has contracts for the distribution of products with approximately 125 distributors. Approximately 5% of the respondent's revenues are managed through distributors and the vast majority of activity of the business of its business is through contracts and tenders.
9. Mr Hayes states that the 26 cm Foley catheter was discontinued by the US parent company in about 30 September 2021, which was before he commenced employment with the respondent. The respondent has no control over what its parent company does or does not manufacture. In 2023, the US parent company discontinued approximately 1600 products and in the preceding year, it discontinued approximately 2000 products globally. Products are typically discontinued by the US parent company when the product is towards the end of the product's life cycle. A decision to discontinue a product may be based on a combination of factors, including declining sales, declining profitability, increasing cost to manufacture, obsolescence due to changes in technology cover change in the market focus or a change in regulatory or licencing requirements.
10. The respondent has never sold or supplied products to the applicant and has never had any direct relationship with the applicant.
11. The 26 cm Foley catheter represented less than 1% of the customer base globally and, in the period between 30 September 2020 and 30 September 2021, the respondent only sold 72 units of the discontinued product, representing a gross revenue of $525. By way of comparison, the total unit sales for the respondent's acute urology portfolio, which comprises catheters and other devices, was 1.89 million units. The respondent has not received any complaints within Australia or globally about the discontinued product from any of its direct customers, which are distributors and facilities such as hospitals and age care facilities.
12. Following receipt of the applicant's complaint, the respondent's legal team made internal inquiries about what it would take to reintroduce the discontinued 26 cm Foley catheter. Mr Hayes states that he received an email from Adam Silver, the vice president and general manager of the acute care platform of the US parent company business. This email is annexed to Mr Hayes' statement. Mr Hayes also had a meeting with Mr Silver about the possible re-introduction of the 26 cm Foley catheter. Based on the email correspondence and advice from Mr Silver, Mr Hayes states that it would take approximately 12 to 14 months to reactivate the production of the 26 cm Foley catheter. It would not be manufactured solely for the purpose of selling the product in Australia but any decision that would be made would need to be based on the US parent company's global market. The cost would be approximately $450,000 in registration, ordering, manufacturing, packaging and delivery. Mr Silver has told Mr Hayes that there are no plans to reintroduce the product because the sales volumes were too low and creating a new shorter 26 cm Foley catheter would not be feasible.
13. Mr Hayes states that the strategic priorities for the global Becton Dickinson urology business and the respondent are currently focussed on high technology patient monitoring and temperature management for severely ill children and paediatric intensive care and adults in intensive care units and the commercialisation of the first and only external female urinary catheter for elderly patients hospitalised for hip fracture, end of life palliative care patients and NDIS and aged care patients. According to Mr Hayes, the ability to invest in bringing these new technologies and products to Australia and New Zealand is made possible through "prudent product life cycle management" which Mr Hayes explains means retiring certain products and re-allocating resources to other products.

1. Based on evidence provided, it is apparent that Foley catheters were approved for supply in Australia by the TGA on 1 December 2005 (Australian Register of Therapeutic Goods Certificate; ARTG, page 31 to exhibit JC-1 to the statement of Ms Cubis). At that stage, the manufacturer was CR Bard Inc.
2. At the hearing, issues were raised about the role of the TGA. The applicant wrote to the TGA on 23 September 2024 requesting certain information about the approval of the Foley catheter.
3. By email dated 2 October 2024 the TGA responded to the effect that the ARTG does not typically specify product specific conditions like length, diameter or other physical differences because devices are often classified based on their intended use, risk level and functionality rather than specific dimensions. The TGA allows flexibility within device categories to accommodate product variations, devices must comply with recognised international standards and manufacturers must demonstrate conformity with these standards when applying for ARTG certification and the TGA relies on post-marketing surveillance reporting and auditing to ensure the devices meet their intended purpose and are safe for use. The TGA states that it cannot influence business decisions made by companies about what they choose to market but the relevant regulatory principles require that medical devices include appropriate labelling, especially when they are designed for specific genders. This labelling is crucial for ensuring that healthcare professionals can select the appropriate device based on patient needs and safety.
4. The TGA further noted that both urethral and suprapubic catheters can be marketed as recommended for male or female users based on the length of the catheter. Relevantly, both female and male urethral catheters can be used for suprapubic catheterization.
5. The applicant further emailed the TGA on 3 October 2024, noting, amongst other things, that catheters were an essential medical device, the US parent no longer manufacturers any form of female length catheter which she considered to be safe. She asked the TGA whether there any action that would be taken by the TGA in these circumstances. The TGA responded by email dated 9 October 2024 that if the applicant wished to make a complaint to report an adverse event or problem for consumers in relation to the product she could do so. The applicant responded that she would do this after her action in the Tribunal had concluded.

1. We accept the evidence of the witnesses and note that there is no dispute between the parties about the essential facts leading to the complaint.
2. Because of her disability, the applicant requires the use of a medical device to assist her with draining her bladder. We accept that up until 2023, the applicant was able successfully to source and use the 26 cm Foley catheter. We also accept that the applicant has been unable to source this catheter since February 2023, that she has attempted to source alternative catheters since this time and that none of the catheters she has been able to source suit her requirements in the same way is the 26 cm Foley catheter. We accept that the applicant has been disadvantaged by this in the sense that the alternative catheter, while shorter than the standard-length catheter, does not meet her preference and is not the 'best fit' for her. One of the concerns she has raised is that the Coloplast catheter does not have a suitable gauge diameter for her needs. We also accept that this issue has caused considerable frustration, anxiety and indeed distress for the applicant because the need to have an effective suprapubic catheter is central to the applicant's amenity and functioning. We accept that if a suprapubic catheter is too long, there may be the potential for kinking unless a suitable mechanism is found to loop the tube, otherwise the catheter lag bag may be visible or worse, have to sit on a foot plate.
3. We find that the 26 cm Foley catheter was manufactured by the respondent's US parent company and its manufacture was discontinued in about September 2021. There is no evidence that the respondent was involved in this decision-making process.
4. We find that this had an impact on the supply of the product globally and in Australia by at least February 2023. We also find that neither the US parent company nor the respondent supply directly to consumers or individual end-users and they do not have an e- commerce platform from which consumers can purchase products. We accept that the US parent company made the decision for commercial reasons and that it has continued to supply a Foley catheter at a "standard" length, which is 40 cm.
5. We find that the respondent has never supplied product directly to the applicant and distributes Becton Dickinson products through distributors and directly to hospitals, aged care facilities and other institutions. We accept the evidence of Mr Hayes that the respondent's US parent does not propose to reintroduce the 26 cm Foley catheter for commercial reasons and that there would be a considerable cost in so doing. We also accept that the US parent company, rather than the respondent as its Australian subsidiary, makes decisions about rationalising products that it considers are not viable or feasible so that it can develop new medical devices and technologies.
6. While there is evidence from the respondent that it is the practice of the respondent to advise distributors about the discontinuance of products, there is no evidence that the applicant, as an end-user, was on notice of the discontinuance. There is evidence that, once the respondent was aware of the applicant's complaints, various staff attempted to liaise with her to provide the applicant with suggestions about suitable alternatives but at no stage did the respondent offer to reinstate the product. We accept the evidence of Mr Hayes that this would have been outside of the respondent's control and authority. There is no evidence about whether the US parent company, or the respondent as its Australian subsidiary, consults with individual end-users or consumers about the impact of discontinuing or changing a product.
7. The TGA approved the supply of the Foley catheter in Australia, and it has an interest in concerns raised about the safety and labelling of products approved but it does not impose conditions requiring that medical devices are equally suitable for both men and women. According to the TGA, it does not have a role in influencing commercial decisions made by companies or individuals that seek approval for medical devices. If the applicant wishes to raise concerns with the TGA about the safety of the existing products, including the Foley catheter, she may do so through the complaints process, and this will be assessed by the TGA. The applicant has not done so and is awaiting the outcome of these proceedings.

1. The applicant's submissions were set out in her written opening statement provided at the commencement of the hearing, her written submission to the Tribunal dated 11 September 2024 and oral submissions made by the applicant at the hearing.
2. The applicant submits that the US parent company of the respondent and the respondent made the strategic business decision to rationalise the Foley catheter product lines through 'Project Recode' to standardise product lines "by exclusion". The decision to implement Project Recode in 2021 resulted in both intended and unintended consequences and outcomes. The respondent, and its US parent, had and continue to have corporate responsibilities to their customers and to end-users. Re branding products as gender neutral does not automatically make once unsuitable products automatically fit for purpose. End-users should not be required to use stabilisation devices, such as the Statlock device, to accommodate the excess Foley catheter tubing. This has a disproportionate impact on women in wheelchairs, who are generally shorter than men.
3. The applicant alleges discrimination against consumers and end-users who purchase products manufactured by the US parent of the respondent, and are distributed by the respondent, on the open market through approved indirect distribution channels. In response to the submission made by the respondent that it has no direct connection with consumers and end-users, the applicant submits that the supply of products through appointed distributors creates sufficient link between the respondent and consumers and end-users. As such, while the respondent does not provide goods directly to the applicant, the decisions the respondent made in developing its distributor assessment criteria and in engaging approved distributors was deliberate and served to extend the reach of the respondent's brand beyond its customer base. The applicant contends that the implementation of Project Recode, and the failure to consult with people with disabilities in relation to the implementation of Project Recode, was discriminatory.
4. The applicant submits that while she accepts the respondent's rights as a company, to make internal strategic and operational decisions and to review its choice of products for manufacture, she disputes that the respondent has a right, as a manufacturer of medical devices, to choose to selectively disregard the interests of its consumers and end users when making policy decisions. The applicant relies on the decision of the High Court in Waters v Public Transport Corporation [1991] HCA 49; (1992) 173 CLR 349 (Waters) and submits that the Court did not accept the financial justification used to implement a discriminatory purpose.
5. The applicant notes that the TGA certification process and the powers of the TGA may not resolve this issue. She seeks an order that the 26 cm Foley catheter be reinstated and, if this is not possible, an order that the respondent be required to design and produce a 'truly gender-neutral' Foley catheter line that is mid length, no more than 30 centimetres. The applicant also seeks an order that the respondent provide a written statement that acknowledges the issues raised during the course of the complaint and provide a written undertaking to the applicant about future company policies, practices, procedures and staff training programmes that will better reflect inclusion and diversity principles. The applicant seeks damages for the hurt and humiliation that she has suffered and refers to the decision of Travis v New South Wales [2001] FMCA 18 where the Court awarded damages of $6,250.

1. The respondent submits that to succeed in her sex discrimination claim the applicant must establish that the respondent "provides" her with goods, has refused to provide her with the goods, and the respondent treated her less favourably than a man was, or would have been treated, in the same or similar circumstances. If there was less favourable treatment, the applicant must establish that one of the reasons for such treatment was the applicant's sex, a characteristic that appertains generally to women or a characteristic that is generally imputed to women. In the alternative, the applicant must establish that the respondent required the applicant to comply with a requirement or condition with which a substantially higher proportion of men comply or are able to comply, being a requirement which is not reasonable and which the applicant does not or is not able to comply with.
2. The respondent further submits that to succeed in her disability claim, the applicant must establish, as with sex discrimination, that the respondent provides her with goods, the respondent refused to provide her with the goods and that the respondent treated her less favourably that a person without her disability was, or would have been, treated in the same or similar circumstances. In the alternative, the respondent required the applicant to comply with the requirement or condition with which was a substantially higher proportion of people who do not have her disability comply or are able to comply being a requirement which is not reasonable and which the applicant does not or is not able to comply with.
3. The respondent contends the applicant bears the onus of proof that she was treated less favourably or that a discriminatory requirement or condition was imposed.
4. It is submitted that the threshold issue for the Tribunal to consider is whether the respondent "provides" goods within the meaning of ss 33 and 49M of the ADA. In this regard, the respondent relies on Whiteoak and the decision of Bromberg J in Winters v Fogarty [2017] FCA 51 (Winters) in relation to the meaning of the word "provide". The respondent submits that there must be a relevant nexus between the respondent and the applicant for the applicant to succeed on both allegations of sex and disability discrimination.
5. It is further submitted that, as a matter of fact, the respondent has not refused to provide any goods to the applicant within the meaning of ss 33 and 49M because the evidence is that respondent sells and supplies only those products manufactured by the US parent company and the decision to discontinue products was at the sole discretion of the US parent company. The respondent had no control or say over whether or not the 26 cm Foley catheter was discontinued.
6. Further, it is submitted that the respondent did not discriminate against the applicant on either ground of sex or disability discrimination in any event.
7. On the issue of sex discrimination, there is no evidence that the there was less favourable treatment of the applicant compared to a man or to a person without the applicant's disability. The discontinuance of the 26 cm Foley catheter was general. This is not a case where the respondent refused to provide an applicant with the product but agrees to provide other persons with the same product. Although the 26 cm Foley catheter was described as a female specific product, the applicant was not using the product for a female specific purpose of insertion through the female urethra, but she was using the product for suprapubic placement. A man in the same circumstances as the applicant who requires the placement of a suprapubic catheter and wanted a shorter length product would similarly not have access to the 26 cm Foley catheter. A female without a disability does not have access to the 26 cm Foley catheter and there were products that would enable a person of the applicant's gender and size and with her disability to use standard 40 cm catheters, which the respondent continues to sell and supply.
8. There is nothing to suggest that a ground for the discontinuation of the 26 cm Foley catheter was the applicant's sex or disability. The evidence is to the effect that the decision of the US parent company to discontinue the catheter was purely a commercial one. The US parent company manufacturers, and the respondent sells and supplies, catheters that can be used by women and disabled persons. The respondent has offered to assist the applicant to find a suitable available product, with offers of assistance having been refused by the applicant. The discontinuance of the 26 cm Foley catheter did not cause or constitute the imposition of any requirement or condition on the applicant. The applicant is free to purchase any other available and suitable products on the market and has in fact done so. In relation to disability discrimination, the significant time and financial resources that would be required for the US parent company to recommence manufacture of the 26 cm Foley catheter when the product was not financially and commercially viable to begin with, would impose an unjustifiable hardship within the meaning of s 49M(2).

1. As outlined above, the ADA renders unlawful sex, disability and other types of discrimination in certain circumstances and does not render unlawful every instance of discriminatory treatment of a person on the grounds of unlawful discrimination specified in the ADA. Unlawful discrimination on the grounds of sex and/or disability must be established in respect of particular fields or activities, in this case either pursuant to ss 33 or 49M of the ADA.
2. Both ss 33 and 49M provide that for conduct to be unlawful the alleged perpetrator must "provide" goods or services to the aggrieved person and must discriminate against the person by "refusing to provide" the person with those goods or services or in the terms on which the alleged perpetrator provides the aggrieved person with those goods or services.
3. Having regard to the submissions of the parties and the material before the Tribunal, the issues for determination are:

(1) Did the respondent provide goods to the applicant?

(2) If so, did the respondent refuse to provide those goods to the applicant or did the respondent discriminate in the terms on which the respondent provided the goods to the applicant?

(3) If the answer to (1) and (2) is yes, did the respondent treat the applicant less favourably compared to the relevant comparator or, in the alternative, did the respondent require the applicant to comply with a requirement or condition that a substantially higher proportion of people of the opposite sex or who do not have her disability comply or are able to comply, being a requirement which is not reasonable and which the applicant does not or is not able to comply.

1. As such, the threshold issues in this case are whether the respondent "provides" or provided the 26 cm Foley catheter to the applicant and whether the respondent refused to provide the 26 cm Foley catheter to the applicant in the period the subject of the complaint, namely 1 February 2023 to 17 March 2023, or whether the respondent discriminated against the applicant in the terms on which the respondent provided the 26 cm Foley catheter.

Did the respondent provide goods to the applicant?

1. The respondent contends that the word "provide", as defined in the Macquarie Dictionary and referred to in Whiteoak at [157], means "to furnish or supply" or "to afford or yield". In Whiteoak the appeal panel further noted at [158]:

Both of these meanings convey the essential notion of making something available. They do not suggest in any way that "provide" includes imposing something on a person....

1. In Winters Bromberg J stated, when dealing with a strike out application in a discrimination case under s 24 of the Disability Discrimination Act 1992 (Cth), which is in similar terms to s 49M of the ADA, as follows:

48. The protection from discrimination given to persons with a disability by the DDA is not comprehensive. It does not cover all fields of activity or interaction between the disabled and those who may discriminate against them on the ground of their disability. The fields or areas of activity are confined to those specified in Part 2 of the DDA. One such field is the provision of goods, services or facilities by one person to another. The text of s 24, including the words "provide" or "provides", the connecting word "to" and the specification of "other person" as the subject of the contemplated provision of the goods, services or facilities, all support the idea that the provision requires a nexus between the provider and the person provided for or, in relation to s 24(a), the potential provider and the person refused the provision. The nexus need not necessarily be found in some legal obligation to provide the good, service or facility. That is apparent from the phrase "whether for payment or not", as well as the terms of s 24(a). The prohibition of a refusal provided for in s 24(a), must be taken to include a refusal to enter upon a legal obligation to provide the goods, services or facilities in question.

49. Whilst the existence of a legal obligation is not the necessary touchstone, a sufficient nexus between the provider and the person provided for or who has sought the provision of the goods, services or facilities, is nevertheless required. The text to which I have referred contemplates a nexus between the provider and the recipient or potential recipient and a nexus must have been intended as a mechanism for marking out the limits of the area of activity covered by s 24.

50. It could not have been intended that every person who may be assisted or advantaged or who may take some benefit from the provision by one person of a good, service or facility to another person, is included in the protective field marked out by s 24. In other words, the requisite nexus is not the mere obtaining of a benefit or advantage. If it were, the protective field would be absurdly broad. It would, to take one example, include the general public in relation to the provision of a good or service by one person to another which has an incidental public benefit. For instance, the provision of solar panels to a householder in the context of the environmental benefit to the general public of that supply. Such a result is not supported by the text of s 24 or by any discernible policy or purpose of that provision.

51. To my mind, the reach of s 24 is confined to protecting those persons who are the subject of the provision or potential provision in question. Of course, the provision of a good, service or facility may be directed to multiple persons so that, for example, the subjects of the provision of a bus designed to carry passengers may include the passengers to be carried and not be confined to the person who hired the bus. But, the person who was advantaged by the provision of the bus because she was relieved of driving her relative to the bus's intended destination was not the subject of the provision of the bus and has not been provided with a good or a service within the meaning of s 24. Third persons who happen to be advantaged, assisted or benefited merely as an incident of the provision of a good, service or facility by one person to another or to others, are not within the protected field contemplated by s 24 of the DDA.

1. The respondent contends that the relevant and necessary nexus between the respondent and the applicant does not exist because the respondent sells and supplies products not to individual end-users or consumers, such as the applicant, but to hospitals, aged care facilities and distributors. These are the entities to which the respondent provides (or provided) goods, namely the 26 cm Foley catheter.
2. The thrust of the applicant's submission is that she was provided with the 26 cm Foley catheter through the respondent's distributors and, while the respondent does not provide goods directly to the applicant, the decisions the respondent made in developing its distributor assessment criteria and in engaging approved distributors was deliberate and served to extend the reach of the respondent's brand beyond its customer base. The applicant contends that the supply of products through appointed distributors and the benefit that she derives from the provision of those goods to distributors creates a sufficient causal nexus between the respondent and her.
3. The respondent submits that deriving a benefit from the supply of goods to distributors does not create a sufficiently direct causal nexus. This is too wide and, as observed by Blomberg J, disability discrimination should be "confined to protecting those persons who are the subject of the provision or potential provision in question". The applicant is not the subject of the provision of goods but rather the respondent's business customers are the subject of the provision. The respondent therefore contends that it did not, in the relevant period, provide any goods to the applicant, including the 26 cm Foley catheter.
4. The applicant relies on Waters, which was a claim of both direct and indirect discrimination on the grounds of disability because the Victorian Minister for Transport introduced a number of changes to the transport system, namely a ticketing system for public transport and the removal of conductors from some trams. The new tickets, known as scratch tickets, were to be purchased from retail shops and were to be validated by the traveller making a scratch mark in designated places to indicate the journey being undertaken. The nine complainants suffered from a disability making it exceedingly difficult to use the scratch tickets. The different judgements in the High Court gave different and detailed decisions on the questions but essentially it was accepted that the facts as alleged could amount to indirect discrimination and much of the discussion turned on the question of whether the requirement or condition imposed in relation to the service provided was "reasonable".
5. The applicant contends that Waters "highlighted the importance of considering the effects of policies on different groups, rather than on the intentions behind them" (written opening statement). The applicant is correct in the sense that the High Court accepted the submissions about the potential impact of the requirement or condition imposed on accessing the public transport system, but the decision does not assist the applicant because there was a direct nexus between the alleged perpetrator and the nine complainants. There was no dispute that the Public Transport Corporation was providing a service to the complainants through public transport on the trams. Relevantly, the nine complainants were the subject of the provision of the services, not just the beneficiaries.
6. Accordingly, we find that the respondent did not, at the relevant time, provide the 26 cm Foley catheter to the applicant.

Did the respondent refuse to provide goods to the applicant or discriminate on the terms on which the goods were provided?

1. We also find, on the facts established, that the respondent did not refuse to provide the 26 cm Foley catheter to the applicant within the meaning of ss 33 and 49M of the ADA. This is because the notion of refusing to provide goods or services connotes that the party who refuses to provide has control over the good or service and is refusing to provide those goods or services. In this case, even assuming the 26 cm Foley catheter could be sourced by the applicant directly from the respondent, the respondent could not provide the 26 cm Foley catheter because the product had been discontinued by its US parent company.
2. In her submissions, the applicant attributed conduct of the US parent company to the respondent - she referred to them interchangeably. However, the distinction between the US parent company and its Australian subsidiary is both relevant and material. The respondent is wholly owned and is therefore controlled by the US parent company, not the other way. The US parent is not within the jurisdiction and the Tribunal is not empowered to make any orders against it in any event. This does not quarantine the respondent from compliance with Australian law, including the ADA, but in this case issues about the supply and manufacture of the discontinued product are outside its control.
3. If, for instance, the 26 cm Foley catheter was available for supply to consumers and the respondent had a practice of dealing directly with individual end-users consumers and refused to provide the product to the applicant, there may be some basis for examining the reasons for this and whether this conduct was discriminatory. This is not what happened in this case.
4. We accept that the failure to choose not to manufacture, and therefore supply, helpful medical devices to potential users who would find that medical device very useful is frustrating for individual end-users with disability. In this case, the discontinuance of the manufacture of the 26 cm Foley catheter in 2021 has clearly engendered concerns by the applicant that the conduct of the US parent is unreasonable and demonstrates a lack of corporate responsibility by a major medical device supplier. A global medical supplier can make choices based on commercial decisions about whether it exploits a particular device or invention. This commercial decision rests with the owner of the product and would only be impacted if there was another regulatory regime which requires certain medical devices or inventions to be offered more generally to members of the public in Australia. The applicant has raised this with the TGA, which may have some relevant regulatory remit, but this is not the role or purpose of the ADA.

Did the respondent treat the applicant less favourably or impose a requirement or condition which a substantially higher proportion of persons of the opposite sex or without the applicant's disability could comply?

1. It follows from the above that we do not accept there has been a breach of ss 33 or 49M of the ADA by the respondent. We also find, although it is not necessary for us to make this determination, that there is no evidence that the reason for decision to discontinue the 26 cm Foley catheter was based on the applicant's sex or disability. The decision was purely commercial.

1. For the reasons outline above, we have decided to dismiss the application.

(1) The application is dismissed.

(2) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act), the disclosure of the applicant's name, including any further identifying information as provided in connection with these proceedings, is prohibited.

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.