Kitoko v Sydney Local Health District

Scope of the Complaint

1. In an affidavit filed in support of the Complaint dated 8 December 2016, Mr Kitoko for the first time raised a number of new issues not mentioned in the Complaint. These included Dr Lord's alleged failure to refer Mr Kitoko for treatment of a ruptured tooth. At the hearing of the SLHD's application we refused to give Mr Kitoko leave to amend the Complaint to include these additional matters.

Power to dismiss the Complaint

1. Section 102 of the Act provides that the Tribunal may, at any stage in proceedings, 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 ss 92(1)(a)(i), 92(1)(a) (ii) or 92(1)(b). These provisions state: 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 ... (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.
2. Consistent with the approach taken by the Civil and Administrative Tribunal of NSW (NCAT) and one of its predecessor tribunals, the NSW Administrative Decisions Tribunal, in deciding whether to exercise the power to summarily dismiss a complaint, or part of a complaint, we have taken the facts on which Mr Kitoko relies at their highest and considered whether they reveal an arguable case to which Dr Lord and/or the SLHD should answer: Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38 at [27]; Alchin v Rail Corporation NSW [2012] NSWADT 142 at [19]-[26]; and Razaghi v Director-General, NSW Department of Health & Anor [2002] NSWADT 4 at [38].
3. The power to dismiss a complaint under s 102 must be exercised with extreme caution: 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 more apparent where, as in this case, the dismissal application is made prior to the adducing of Mr Kitoko's evidence at the substantive hearing: Karekar v TAFE Commission of New South Wales [2000] NSWADT 187 at [36].
4. A complaint can be said to "lack 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 & Anor (1981) 2 NSWLR 104 at 107 and Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 at [22]..

Statutory framework: complaint of discrimination on the ground of race

1. For the purposes of determining the application made by the SLHD we will consider the material on which Mr Kitoko's relies at its highest and ask whether it is capable of supporting the factual allegations on which the Complaint rests and, if so, whether those allegations could disclose a contravention of the Act. In undertaking that task, it is necessary to first identify the elements of unlawful discrimination on the ground of race in the area of services. .
2. Section 19 of the Act makes it unlawful for a person who provides 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.
3. For the Complaint to succeed Mr Kitoko must establish: 1. First, that the conduct about which he complains falls within a substantive provision of the Act, that is, that the SLHD and/or Dr Lord (i) refused to provide him with services, namely a "true copy" of the report of the nerve conduction study conducted on 16 October 2012, and/or (ii) discriminated against him in the terms on which they provided him with services. 2. Second, a person not of Mr Kitoko's race, was or would have been treated more favourably in the same or similar circumstances. 3. Third, that one of the reasons for any less favourable treatment was his race.

Is there any evidence of a refusal to provide a service?

1. An issue in dispute between the parties is whether there is some evidence to support the claim that Dr Lord and/or the SLHD refused to provide Mr Kitoko and/or his GP with a copy of the report of the nerve conduction study performed on 16 October 2012.
2. To put the arguments made by the parties in context it is necessary to sketch in some background facts. The following is taken from the material on which Mr Kitoko relies, relevantly, the clinical records of Mr Kitoko's treating doctors, an affidavit prepared by Mr Kitoko dated 8 December 2016 and the material provided by Mr Kitoko contained in the report of the Complaint prepared by the President and provided to NCAT as required by s 94A of the Act.
3. On 8 October 2010, Mr Kitoko consulted his general practitioner, Dr Johnson Hsu, and reported that three days earlier he had slipped and fallen at Broadway Shopping Centre. Over the following 18 months, Mr Kitoko consulted Dr Hsu on a number of occasions and reported persistent left jaw pain, facial muscle spasm and headache. By April 2012, Mr Kitoko's symptoms had not resolved and Dr Hsu referred Mr Kitoko to the Hospital's Neurology Clinic.
4. On 8 May 2012, after reviewing Mr Kitoko, Dr Lord arranged for Mr Kitoko to undergo an MRI of the brain and an X-ray of his jaw joint. In his clinical notes of a consultation on 22 May 2012, Dr Lord wrote that, at this stage a conservative approach to treatment should be followed. According to Mr Kitoko, at this consultation Dr Lord told him he had contacted Broadway Shopping Centre for "investigation of my accident claim".
5. On 11 September 2012, Dr Lord again reviewed Mr Kitoko. In his notes of that consultation Dr Lord recorded that Mr Kitoko reported pain in the frontal region of his head and sensitivity in his right and left median finger tips. He wrote: "MRI No sinister pathology requiring action".
6. On 16 October 2012, Mr Kitoko again consulted Dr Lord. According to Mr Kitoko he consulted Dr Lord in both the morning and the afternoon. Mr Kitoko claims that in morning consultation, at his insistence, Dr Lord referred him for a nerve conduction study. That study was undertaken later that day by Concord Hospital staff specialist neurologist, Dr Alistair Corbett. Mr Kitoko claims that Dr Lord had been reluctant to refer him for further investigation and said "I do not think something will be found". According to Mr Kitoko when he returned to see Dr Lord later that afternoon, Dr Lord refused to hand-over the "true results" of the tests and said "nothing will be found". In addition, he claimed that Dr Lord made the comment referred to paragraph [2].
7. In a letter dated 23 October 2012, Dr Lord wrote to Dr Hsu and advised that the nerve conduction study: [S]howed no upper limb abnormality to explain [Mr Kitoko's] middle finger and median figure numbness. In addition to his nerve conduction study, his F waves were normal virtually excluding evidence for a root lesion. I would be happy to review Mr Kitoko at the first hint of any alteration to his symptoms.
8. On 23 October 2012, Mr Kitoko consulted GP Christopher Lee. According to Mr Kitoko at that consultation Dr Lee gave him the "true results of the nerve conductive [sic] received from Concord Public Hospital".

Is there any evidence that Dr Lord refused to give Mr Kitoko a copy of the report of the 16 October 2012 nerve conduction study?

1. To succeed in this part of the Complaint, Mr Kitoko must be able to point to some evidence to support the proposition that the report was available to Dr Lord on 16 October 2012. This is because it cannot be said that Dr Lord refused to provide the report to Mr Kitoko, if, at the relevant time a copy of the report was not available to Dr Lord.
2. For current purposes we assume that there is some evidence to support Mr Kitoko's claim that he attended two consultations with Dr Lord on 16 October 2012, notwithstanding as pointed out by the SLHD, that Mr Kitoko made no mention of a second consultation, until 18 months after lodging the Complaint with the Board.
3. In support of the claim that, during the second consultation on 16 October 2012, Dr Lord refused to give him a copy of the nerve conduction study, Mr Kitoko relies on the report itself, specifically the entry "result date" and his account of what happened during that consultation.
4. Set out below is an extract from the first page of the report. The entry relied upon by Mr Kitoko is highlighted. Nerve Conduction studies Kitoko, Vangu Test result type: Nerve conduction study Result Date: 16 October 2012 15:45 Result status: Auth (verified) Performed by: Corbett, Alistair John on 22 October 2012 16:47 Verified by: Corbett, Alistair John on 23 October 2012 08: 45 Encounter info: CRGH, Outpatient 18-10-2012-18-10-2012 [table setting out results of test] Printed by: Vuong, Quennie Printed on: 23-11-2012 12:10
5. Mr Kitoko argues that the entry, "Result Date: 16 October 2012 15:45", establishes that the report was available to Dr Lord during the afternoon consultation on 16 October 2012. However, that entry must be read in context, which include the entries relating to when the study was performed and verified by the report's author, Dr Corbett, respectively 22 October 2012, 15:47 and 23 October 2012, 08:45. It appears that although a procedure was undertaken on 16 October 2012, the results of the procedure were not available until 22 October and verified on 23 October 2012. Taken together with the entry "Printed on: 23-11-2012 12:10", we are unable to accept that, the entry relied upon by Mr Kitoko supports the proposition that the report was available to Dr Lord on 16 October 2012.
6. Nor, in our view, does Mr Kitoko's own account of what occurred during that consultation support that proposition. In the Complaint to the Board Mr Kitoko wrote: Soon after the test, in his practice at concord public hospital, Dr George Lord has denied to hand-over the true results established by John Alistair Corbett. Dr Lord has confirmed to me this: "as I said before the nerve conduction studies that nothing will be found." I asked Dr Lord if there is a study's report, he confirmed to me no report exist because nothing has been found and thus it was not necessary to recommend further diagnostics". …
7. In an affidavit dated 8 December 2016, Mr Kitoko wrote that after the nerve conduction study was carried out, Dr Lord: [D]iscussed preliminary results of the test performed by Dr Alastair and confirmed that "as I said before the test that nothing will be found and nothing interesting was found".
8. As is apparent, Mr Kitoko does not claim that he saw a copy of the report or that Dr Lord said he had a copy of the report in his possession. Mr Kitoko's account of the second consultation on 16 October 2012, taken together with the result date entry on the report itself, supports a finding that the preliminary results of the study were available to Dr Lord in some form during the second consultation. However, it does not support a finding that the report itself was available to Dr Lord at that time.

Is there some evidence that Dr Lord and or the Hospital refused to give Dr Hsu a copy of the report?

1. Mr Kitoko contends that neither the Hospital nor Dr Lord gave Dr Hsu a copy of the report of the study. In support he points to Dr Lord's letter to Dr Hsu of 23 October 2012 which makes no mention of an enclosed report. In addition, he relies upon his claim that the report was not included in the bundle of documents produced by Dr Hsu in answer to a subpoena, in the proceedings in the NSW District Court, relating to his claim for compensation against Broadway Shopping Centre.
2. While some evidence to support the claim that Dr Hsu and Mr Kitoko were not provided with a copy of the nerve conduction study, the question raised is, whether that evidence, could be said to disclose a contravention of s 19(a) of the Act. This turns on the proper construction of s 19(a) of the Act, which reads: 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 … [emphasis added]
3. In construing s 19(a), the provision must be read as a whole and paragraph (a) must be considered in that context: Metropolitan Gas Co v the Federal Gas Employees' Industrial Union [1925] HCA 5; 35 CLR 449 at 455; Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at 381. While ordinarily the legal meaning of a provision will correspond with its literal or grammatical meaning this will not always be the case. The context of the words, the consequences of a literal or grammatical construction, the purpose of the provision or the principles of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning: Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [78]. In addition, because s 19 of the Act is remedial and beneficial in character it should be given a liberal rather than a constrained interpretation: Khoury v Government Insurance Office of NSW [1984] HCA 55; 165 CLR 622 at 638; Dionisatos v Acrow Formwork & Scaffolding Pty Ltd [2015] NSWCA 281 at [12]; Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 359.
4. In construing s 19(a), as a first step, regard must be given to the meaning of the phrase "refusing to provide". This requires consideration of the ordinary and natural meaning of the word "refusing". While it is ultimately a question for our "understanding of the sense in which words are currently used" (NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation [1956] HCA 80; (1956) 94 CLR 509 at 514), to assist us in undertaking that task regard can be had to dictionary definitions.
5. The Macquarie Dictionary, seventh edition provides a number of definitions of the word "refuse". The following appear relevant: … 2. to decline to give; deny (a request, demand, etc.). 3. to express a determination not (to do something): to refuse to discuss the question. …
6. The Oxford Dictionary offers similar definitions, which relevantly include: To decline to do something.
7. Applying those definitions, the phrase "refusing to provide" in our view should be read to mean "declining to give" or "denying a request or demand". Having regard to the plain words of the phrase and the context in which they appear, in our view, there is no warrant to adopt the wider interpretation favoured by Mr Kitoko - "failing to provide" - notwithstanding the remedial nature of the provision.
8. Applying that construction, the question posed is whether there is some evidence that the Hospital and/or Dr Lord refused to, or declined to, provide Mr Kitoko or Dr Hsu with a copy of the report of the nerve conduction study.
9. There is no evidence that either Mr Kitoko or Dr Hsu made a request to Dr Lord or the Hospital to provide a copy of the subject report at the time the study was undertaken or at some later time. Nor is there any evidence that it was Dr Lord's usual practice, when providing GPs with a written opinion about the results of a patient's nerve conduction study, to enclose a copy of the report of that study.
10. While there is some material to support the claim that Dr Lord and the Hospital failed to provide Dr Hsu and Mr Kitoko with a copy of the subject report, there is no material that Dr Lord or the Hospital declined to give Dr Hsu or Mr Kitoko a copy of the subject report, or denied a request made by Dr Hsu and/or Mr Kitoko for a copy of that report.

Is there some evidence that Dr Lord and or the SLHD refused to provide Mr Kitoko with the "true results" of the nerve conduction study?

1. Mr Kitoko contends that Dr Lord refused to provide him with the "true results" of the nerve conduction study conducted on 16 October 2012. He asserts that the opinion expressed by Dr Lord in his letter to Dr Hsu of 23 October 2012 - that the study revealed no upper limb abnormality and that there was no evidence of a nerve root lesion - was "misleading and untrue". He asserts that Dr Lord's opinion amounted to "sabotage".
2. Mr Kitoko asserts that the reason Dr Lord proffered a "misleading and untrue" opinion was because he held negative views about African people. In addition, he claims that because of his poor regard for African people, Dr Lord conspired with Broadway Shopping Centre's insurer to deny his claim for compensation.
3. In support of the proposition that the opinion expressed by Dr Lord was untrue and misleading, Mr Kitoko relies upon the following: 1. The decision made by GP Dr Lee in November 2012 after obtaining a copy of the subject report to refer Mr Kitoko for assessment by orthopaedic surgeon Dr Davor Saravanga. 2. The recommendation made by Dr Saravanga in his letter to Dr Lee of 21 February 2013 that Mr Kitoko would benefit from an MRI of the cervical spine and an EOS Study. 3. The decision made by Dr Saravanga in March 2013 to refer Mr Kitoko for epidural steroid injections to his spine. Apparently that referral was made following Dr Saravanga's review of the results of the studies referred to at (2) above. 4. Dr Saravanga's report of 6 February 2015 in which he stated that an MRI showed Mr Kitoko suffered nerve root impingement and had "significant aggravation of cervical and lumbar spine normal function as a result of injury". 5. His own knowledge of medicine science. Mr Kitoko holds qualifications in biomedical engineering.
4. For current purposes, we will assume but not decide that the provision of an opinion by a medical practitioner in relation to diagnosis, or some aspect of a person's condition, in circumstances where there was no basis for that opinion, or, where the practitioner held a different opinion to their stated opinion, could constitute a refusal to provide a service.
5. Leaving to one side Mr Kitoko's own opinion, the material referred to above does not support the proposition that there was no basis for the opinion expressed by Dr Lord in his letter to Dr Hsu of 23 October 2012, or that Dr Lord did not genuinely hold that opinion. In their respective reports and letters, neither Dr Lee nor Dr Saravanga challenge or even address Dr Lord's opinion. While arguably it could be inferred from the fact that they considered further investigation of Mr Kitoko's reported symptoms was warranted, that they did not share Dr Lord's opinion, it does not follow that they held the view that it lacked any basis. Notably, Dr Saravanga's report of 6 February 2015, in which he expresses the contrary view to that expressed by Dr Lord, namely, that there was evidence of nerve root impingement, was given nearly three years after Dr Lord had seen Mr Kitoko and after further investigations had been conducted.
6. Assuming on the basis of his qualifications and training Mr Kitoko is qualified to comment on the opinion expressed by Dr Lord, it represents nothing more than a conflicting opinion. Without more, a difference of opinion between suitably qualified persons about an area of specialised knowledge, does not provide a basis for finding that the opinion expressed by one lacked a proper basis or was not genuinely held.

Summary

1. Taken at its highest, the material on which Mr Kitoko relies does not support a finding that either Dr Lord or the Hospital, contravened s 19(a) in the manner as particularised. This part of the Complaint lacks substance.

Is there some evidence that Dr Lord and or the SLHD discriminated against Mr Kitoko in the terms in which they provided him services?

1. As noted above, Mr Kitoko claims that in the course of the consultation on 16 October 2012, Dr Lord said: "I do not think anything interesting will be found to help an African to get the Australian money. We are Australians not you guys". Whether this alleged statement could be said to amount to unlawful discrimination on the ground of race turns on whether it falls within s 19 of the Act. The alleged statement could not be characterised as a refusal to provide a service. Therefore, we must consider whether it could be characterised relating to the terms on which medical services were provided to Mr Kitoko: s 19(b) of the Act.
2. The scope of s 19(b) of the Act and the corresponding provisions relating to other grounds of discrimination, has been held not to extend to the manner in which a service is provided: see for example, Turner v State Transit Authority [2004] NSWADT 89 at [59] to [77]; Colgar v Curtin [2013] NSWADT 255. As noted in Whitfield v State of NSW (NSW Police Force) [2011] NSWADT 265 at [92], the New South Wales Law Reform Commission in Report 92, Review of the Anti-Discrimination Act 1977 (NSW) at p 170, pointed out that the Act did not cover "the manner in which goods and services are provided" and recommended that the Act be amended to rectify this omission. That recommendation has not been implemented.
3. In our opinion, a single racist comment of the type alleged by Mr Kitoko could not be said to relate to the terms on which a medical practitioner provides a patient with medical services. Different considerations may apply if there was evidence that Dr Lord regularly made comments of the type alleged. See for example Turner v State Transit Authority [2004] NSWADT 89 at [68].
4. In our opinion, the alleged statement said to have been made by Dr Lord, (which is denied), does not disclose a contravention of the Act.

Conclusion

1. We conclude the Complaint lacks substance and does not disclose a contravention of the Act. We have decided this is an appropriate case to exercise the power to dismiss the Complaint under s 102 of the Act. It follows that it is not necessary to address the SLHD's alternative submission that the Complaint should be dismissed because of the delay in making the Complaint.

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: 27 June 2017